3 9002 07086 4633

'¦I. give t&tfe Btala
ftxpthe founding of ce College in thit.CoUnyf'

IJH'KJ AXW-

Silas A. Strickland.
President Nebraska Constitutional Convention of 1871.
Born 1831, Rochester, New York; died 1878, Omaha, Ne
braska. Settled at Bellevue, Nebraska, Oct. 18, 1854. Mem
ber of territorial legislature and speaker of the house.
Private, lieutenant, and adjutant of First Nebraska volun
teers. Lieutenant colonel and colonel of the Fiftieth Ohio
infantry ; brevet brigadier general. U. S. district attorney.
Commander Nebraska Grand Army of the Republic.

OFFICIAL REPORT
 OF THE 
DEBATES AND PROCEEDINGS
 IN THE 
NEBRASKA CONSTITUTIONAL CONVENTION
Assembled in Lincoln, June Thirteenth, 1871

From the original shorthand notes of John T. Bell, John Hall, Dan Brown,
and John Gray. Prepared for printer (1871) by Guy A. Brown, Clerk of
the Supreme Court of Nebraska.

Revised, edited and indexed for publication (1905) by
ADDISON E. SHELDON,
Director of Field Work, Nebraska State Historical Society.

Published by the Nebraska State Historical Society, pursuant to resolution
of the Twenty-ninth Session of the Nebraska Legislature.

Volume Eleven, Nebraska State Historical Society Publications
(Series II— Vol. VI.)

T. E. Sedgwick, York, Nebraska

> --J

n

To the

Hon. Addison E. Cady, of St. Paul, Senator from
the Seventeenth- District,

AND

Hon. N. D. Jackson, of JYeligh, Representative from
the Fourteenth District,
Whose disinterested and able e forts made possible their publication ,
These volumes of the debates of the Constitutional Con
vention of 1871, are dedicated.

NEBRASKA STATE HISTORICAL SOCIETY

EXECUTIVE BOARD
ELECTED MEMBERS
President — Hon. Henry T. Clarke  Omaha
1st V-Pres.— Robert Harvey  St. Paul
2d V-Pres.— Prof.. Geo. E. Howard  .Lincoln
Secretary —Prof. H. W. Caldwell  Lincoln
Treasurer — S. L. Geisthardt  Lincoln
EX OFFICIO MEMBERS
Governor of Nebraska  Hon. John H. Mickey
Chancellor State University  Hon. E. B. Andrews
Pres. State Press Ass'n  John B. Donovan. Madison

OFFICE STAFF
Jay Amos Barrett  Curator and Librarian
A. E. Sheldon  Director of Field Work
E. E. Blackman  Archeologist
Daisy M. Palin  Newspaper Clerk

STATED MEETINGS

Annual meeting of the Society, second Tuesday in January.
Meetings of Executive Board, first Tuesday after second Mon
day in January, April, July, October.

PREFACE.

This volume is the first of a series designed to give to the public
the complete history and original records, so far as they exist, of the
Constitutional Conventions of Nebraska.
The idea of their publication in their present form arose in the
mind of the editor in 1899, when he found in one of the vaults of the
State House the original shorthand report of the convention of 1871.
A few hours reading in the manuscript was enough to convince that
one of the most important sources of Nebraska political and constitu
tional history was sleeping there under thirty years' dust in forgotten
rest. The discovery of this material and its importance led to a pro
longed and thorough search for the lost minutes of the convention of
1875. The story of those minutes, as told by Mr. H. H. Wheeler,
formerly of the Supreme Court office, is as follows:
"In the fall of 1889, some clays after the death of Guy A.
Brown, Clerk of the Nebraska Supreme Court, (whicli occurred Oct.
27th of that year), I went into the basement vault of the Clerk of the
Supreme Court in the state capitol to get some articles belonging to
me. On the stairway I met David C. Crawford, one of the state
house janitors, with a Swedish helper named Henry, conveying a
cracker box with a lot of papers in it upstairs. 1 instantly recognized
the papers as the manuscript report of the debates in the constitutional
convention of 1875. 1 told the janitors that they were very valuable
papers and ought to be preserved. When I came up from the vaults
a few minutes later I stepped into the office of the Secretary of State,
and told Nelson McDowell; Chief Clerk, and O. C. Bell, Deputy
Secretary of State, what I had seen; called their attention to the
value of the papers, and that they properly belonged in the custody
of the Secretary of State. I have never seen the debates since, al
though I have made diligent personal search for them in the state
house, having an important law suit involving a constitutional ques
tion which the debates would have shed light upon. I have never
found any one who has seen those manuscripts since that day.
"I remember perfectly the form of the manuscript. It was
written with lead pencil on sheets of soft newspaper, cut into note

8 PREFACE
head size, and each day's proceedings tied up separately. The man
uscript had been kept many years in that cracker box: — at first in the
Secretary of State's office. Later it was kept in the office of the
Clerk of the Supreme Court, because there was more table room there
for persons who desired to consult it. I entered the Clerk's office in
1876, the year after the convention, and remember many lawyers get
ting the manuscript to consult. I remember in particular Mrs. Clara
B. Colby using the manuscript many times to familiarize herself with
the work of the convention of 1875."
A long and painstaking search by myself through all the
vaults and rooms of the state house was finally rewarded in 1900 by
finding several rolls of original manuscripts of the convention of 1875
in one of the basement rooms. These manuscripts were chiefly. orig
inal committee reports upon different parts of the constitution, — in
some cases both minority and majority reports being submitted, — and
a few minutes of convention work. These were made the subject of
a special article by me in the Omaha Daily Bee of February
24, 1901, and are now a part of the archives of the State Historical
Society. Upon coming into charge of the field work of the Historical
Society, in April, 1901, correspondence and search was begun for all
documents, recollections, letters and newspaper accounts giving orig
inal information respecting the constitutional conventions of Ne
braska. The program of the State Historical Society meeting Janu
ary 12-13, 1903, was upon the subject, and many interesting
reminiscences of the conventions of 1871 and 1S75 were there related.
Among other material gathered in the last four years is that found in
Gov. Furnas' voluminous scrap books which have been given to the
Historical Society, abstracts of newspaper reports of the convention
of 1875 as they appeared in the Omaha and Lincoln dailies of that
time and, during the summer of 1905, all the letters and manuscripts
of the late Judge Samuel Maxwell, of Fremont, who was a member
of the convention of 1871 and also that of 1875.
The story of how the manuscripts of the 1871 convention were
obtained for these volumes, and how — most important of all — the
money for their publication was obtained, has had all the excitement
of a drama in real life for the writer. It may be of interest to the
public now, and to that vaster public yet to be born and live upon

PREFACE . 9
these prairies through all the centuries that are to come. A written
application was made to Secretary of State Marsh in December, 1904,
for use of the 1871 manuscript to edit and prepare for publication.
The matter went over and was laid upon the desk of incoming Secre
tary of State Galusha, in January, 1905. The Secretary was entirely
willing that the manuscripts should be used, but encountered a direct
prohibition in the statute which forbade him to "permit any original
rolls, papers, or public documents filed in his office to be taken out
of it unless called for by resolution of either or both houses of the leg
islature, or for examination by the executive." Upon consultation
with the Attorney General N orris Brown, a preamble and resolution
was drawn up by the writer, approved by the Attorney General, given
to Kepresentative N. D. Jackson of Antelope county, by him intro
duced in the House February 6th, and passed unanimously. The
resolution is as follows:
Whereas, the verbatim report of the debates in tbe Nebraska
constitutional convention of 1871, prepared in manuscript (as the
legend thereon states) by the Hon. Guy A. Brown for use as printers'
copy to publish said debates has lain unused in the vaults of the cap-
itol over thirty years, and
Whereas, the constitution framed by that convention was re
jected by the voters at the polls and these debates were therefore
never published, and
Whereas, the Nebraska State Historical Society is now prepar
ing for publication a history of the constitutions of Nebraska giving
all the original source material upon the present constitution and
those which preceded it, and
Whereas, these debates of the convention of 1871 have been
carefully examined by the officers of the historical society and found
to be of great historic and general interest, covering in discussion the
vital points in our present constitution, the verbatim report of whose
convention is lost, and it is highly desirable to have them properly
edited, indexed and published so as to make them available to all the
people of the state, therefore, .be it
Resolved, by this house that the secretary of state is hereby
authorized and called upon to deliver to the proper officer of the
Nebraska State Historical Society said manuscript printers' copy of
the debates of the convention of. 1871 for publication under the
auspices of said society, taking his receipt therefor.
Armed with a certified copy of this resolution from the Chief
Clerk of the House the manuscripts were secured from the Secretary

10 PREFACE
of State, transferred to the Historical Society rooms that very day,
and work begun revising them for publication.
The hardest part of the task remained to be accomplished — to
secure from the legislature, confronted with a large state debt, and
clamorously besieged for appropriations in behalf of state institutions
and new buildings, the money that was absolutely required- to give
these dusty manuscripts to a reading public. By special arrange
ment Prof. Howard W. Caldwell and the writer had a brief hearing
before the House Committee on Finance, Ways and Means, February
14th. The full committee was not present, the session was hurried,
the members were tired, and no action was taken upon the request.
The general appropriation bill was framed and reported and passed
the house with no item for the printing of these debates.
The senate was the last chance. How to secure from hurried,
crowded senators the attention needed to convince them of the real,
practical as well as scientific, value of these early Nebraska records, —
that was the problem. Its solution was attempted by the following
brief, which was framed and sent to every member of the senate with
a personal letter:
BRIEF FOR A SPECIAL ITEM OF $2,500 TO PUBLISH DE
BATES OF NEBRASKA CONSTITUTIONAL
CONVENTION OF 1871.

1. Nebraska has had four constitutional conventions — 1864,
1866, 1871, 1875. The first one adjourned without framing a con
stitution. The second framed our first constitution. The third sat
47 days and framed a document which was defeated at, the polls
The fourth made our present organic law, between May 12 and
June 12.
2. The minutes of the 1875 convention are lost. We have
only the journal, the memories of members, newspaper accounts and
letters from which to reconstruct its proceedings.
3. The minutes of 1871 are complete — every word spoken in
the convention. The same topics were discussed in 1871 as in 1875
and the constitution defeated in 1871 is the real model upon whose
lines the present constitution is built. The record of 1871 is, there
fore, the most valuable existing commentary on our present document.

PREFACE 11
4. The following is the list of members of the convention of
1871: (List here omitted).
5. The debates are vigorous, comprehensive and stirring. The
vital questions argued today in our couits and public forums were
debated in the convention by the early founders of this common
wealth, many of whom have since been leaders in its affairs.
6. The minutes of 1871 will make two volumes of 600 pages
each in brevier type . A third volume of about equal size will con
tain all the original matter attainable in relation to the conventions
of 1864, 1866 and 1875.
7. The cost of printing per page will be between $1.25 and
$2.00, depending upon the size of the edition.
8. The Historical Society cannot print these volumes without a
special allowance. It is required by the act which makes it a state
institution (Wheeler, Chap. 84a; Cobbey, paragraph 11,375) to pub
lish its transactions and the historical addresses delivered at its annual
meetings. Its regular biennial appropriation of $10,000 for current
expenses will aot take care of this special item after ordinary expenses
are paid. 9. These Constitutional Convention volumes should be printed
NOW — to quote the words of Senator Manderson in a recent letter
endorsing the plan — "while there are members yet living who can
read proofs and offer correction and comment."
Then began a campaign to awaken members of the Senate
finance committee to a realization of the importance of the little item.
Letters were written to all the members of the 1871 and 1875 conven
tions, enclosing a copy of the brief, and asking them, who knew bet
ter than any other persons the value and interest of the proposed
volumes, to write to their own senator and also to the chairman of
the senate finance committee. Besides this, similar letters were sent
to members of the State Historical Society, to prominent lawyers and
to personal friends of the writer over the state. First and last, over
a thousand letters were written. The response was generous, and I
have since wondered whether Senator Good, Chairman of that com
mittee, thought a conspiracy had been organized against his peace of
mind to secure that sum of $2,500. At this critical juncture the per
sonal interest of Senator A. E. Cady, of Howard County, was secured
for the item after a thorough explanation and understanding of its
merits. March 23d the senate finance committee agreed to add the
following amendment to the general appropriation bill:
"For printing special volumes of series two, containing minutes

12 PREFACE
and original sources of Nebraska Constitutional Conventions of
1871, 1875, 1866 and 1864, and other original material, for the
biennium, two thousand five hundred dollars."
On March 28th, the general appropriation bill passed the senate
with this amendment, and was sent back to the house.
The scene of battle now shifted to the house of representatives
and on March 29th the following letter, with a printed copy of the
brief before mentioned, was sent to every member of the house,
accompanied in some cases by a personal note.
"Hon 

Dear Sir: — This calls your attention to an amendment made by
the senate to H. R. 347, — adding a special item of $2,500 for pub
lishing the debates and records of Nebraska Constitutional Conven
tions. The enclosed printed slip summarizes some of the reasons why
this special item is placed in the bill. To this there may be added
the following points:
(a) Timeliness This is a period of agitation in Nebraska for
new constitutions and the constitutional amendments. These strong
debates on constitutional structure by Nebraska's leading lawyers and
statesmen will be read with interest and profit by all interested in
our present and future constitutions.
(b) Subjects discussed. Among the leading subjects debated
in these documents are, — Revenue, Corporation Control and Liability,
Municipal Institutions, School Systems, Exemptions, Suffrage, Etc.
(c) Origin of the Item. The debates of 1871, as prepared by
Guy A. Brown, have lain a third of a century in the state house
vaults. Some time ago they were dug up by the undersigned, and
found to contain most valuable matter. With the co-operation of the
Secretary of State and the Attorney General's office, a resolution
was drawn up and introduced in the house by Representative N.
D. Jackson, of Antelope, delivering them to the Historical Society
to be edited and published.
(d) Endorsement. The leading judicial and legislative officers
of the state, past and present, have unanimously commended and en
dorsed the proposed publication, — so far as interrogated on the ques
tion. (e) Cost. The estimate of $2500 is as low as can be safely
made. The three volumes will contain from 1500 to 1800 pages of
brevier type — the same as that used in the State Agricultural Society

PREFACE 13
Report. The last Historical Society report was let at $1.65 per page,
2,000 copies. The demand for our reports is constantly growing,
and for these special volumes will without doubt call for a larger
edition. Your interest in the above item is asked, and your vote to retain
the same. 1 know we shall not need to ask your interest in the vol
umes when they are published."
March 30th was the last legislative day of the session. The
house refused to concur in the senate amendments to the general
appropriation bill and conference committees were appointed.
Lieutenant Governor McGilton appointed Senators Good, Cady,
Bresee, Haller and Gould on the part of the senate. Speaker Rouse
named Representatives ' Douglas, Kaley, Davis, Burns and McLeod
for the house. In the conference room some effort was made to
strike out the item for constitutional convention publication. The
instantaneous and strong support of Senator Cady at this vital
moment saved the item and the bill came out of conference with the
senate amendment intact. A few minutes later the unanimous report
of the conference committee was approved in both houses. The
fight for the publication of Nebraska's constitutional archives was won. •
A few words as to the condition of the manuscript of 1871. It
was written in lead pencil, in several different handwritings, on sheets
of white newspaper about seven inches by ten and one-half inches in
size, with frequent annotations in shorthand upon the back of the
sheets, generally indicating where one reporter relieved another.
Each days' proceedings was wrapped in a paper cover and indorsed
to show its date. The whole was inclosed in six heavy card board
file cases marked on the outside, "Minutes of Constitutional Conven
tion of 1871." A slip of paper in Guy A. Brown's handwriting
upon the first days' proceedings stated that it was prepared for the
printer by him. I am convinced, however, that he never read it
through. His characteristic handwriting is absent from the subse
quent pages. Where corrections had been made they were in the
hand of one or other of the reporters.
In my own editing of the manuscript for publication I have
made such changes only as seemed clearly warranted to render the

14 PREFACE
plain sense coherent and inteligible. This has required many alter
ations of punctuation and capitalization, — breaking up into separate
clauses and sentences what the fast-flying shorthand of thirty years
ago had run together in hopeless wreck of syntax. Where the reporter
had clearly written the wrong word the correct one has been added
enclosed in square brackets. [J In one or two places the manuscript
report of a member's speech had been given him for correction. by
the reporter and was not returned. A notable and much regretted
instance is the absence of one of Judge O. P. Mason's speeches on
corporations. Every known effort has been made to supply all
omissions and to correct all errors of the text. At the suggestion of
Gen. Chas. F. Manderson proofs have been sent to all living mem
bers of the convention, so far as they could be reached, and it is ex
pected to gather the'ir corrections and recollections into notes at the
end. It has been a glad task for me — to rescue these early records of
Nebraska from mice and moth and accident and fire and give them
fit place in the growing literature of those pioneer days whose human
charm and interest grows through each decade by what Lowell calls
the "simple magic of dividing time." To know the ideas of human
liberty and civic institutions which were held upon these prairies in
the days of their first settlement, which fought for recognition in the
frame-work of government — that will be worth something to future
generations, — is worth something today. It is more than that to me.
It is to hear from these printed pages the voices of pioneer Nebraska
orators, thinkers and statesmen, — familiar to my childhood's ear, —
speaking in the old phrases: — to see once more the flash of the eye
and the characteristic gesture accompany a favorite utterance as the
combat in convention grows warm and sometimes personal. Many
of those voices are now forever stilled. Soon all will be. The
memory of the work they wrought, of the hardships and dangers they
endured, will be an inspiration to all children of men who shall here
after enjoy the fruit of the institutions and the spirit they planted upon
these plains. In the hope and belief that these records will help
make vivid and real the deeds of early days for future men and
women they are given to the public. May sons and daughters of

PREFACE 15
Nebraska feel as they read these pages in years to come the full force
of the stanza from In Memoriam:
"So word by word and line by line,
"The dead man touched me from the past, —
" And all at once it seemed at last
"The living soul was flashed on mine."
historical society rooms,' ADDISON E. SHELDON.
January 12, 1906.

NEBRASKA CONSTITUTIONAL
CONVENTION OF 1871.

. FIRST DAY.
Agreeable to the provisions of "an
Act to provide for calling a Conven
tion to Revise, Alter or Amend the
Constitution of the State of Nebras
ka," approved March 27, 1871, the
delegates elect thereto, assembled
in the Hall of the House of Represen
tatives, in the city of Lincoln, at 2
o'clock p. m. on the 13th day of June
1871, and were called to order by
Mr. S. M. Kirkpatrick of Cass upon
whose motion Mr. McCann, of Otoe,
was chosen President pro tern.
On motion L. E. Cropsey, of -Lan
caster, was chosen Chief Secretary
and H. M. Judson of Douglas, Assis
tant Secretary pro tern.
On motion the law providing for
the calling of the convention was
read by the Secretary, as follows:
An Act to provide for calling a Con
vention to revise, alter or amend
the Constitution of the State of
Nebraska. Be it enacted by the Legislature of
the State of Nebraska:
Sec. 1. That a "Convention tp re
vise, alter or amend the Constitution
of the State of Nebraska, is hereby
called to meet at the State House,
In the city of Lincoln, on the second
Tuesday in the month of June, 1871;

said Convention shall consist of fifty-
two members, who shall be chosen in
the districts entitled to elect members
of the House of Representatives and
Senate, and each Representative and
Senatorial district, as constituted by
law, at the time of holding the elec
tion for members of said Convention,
shall be entitled to elect as many
members of said Convention as said
district may be entitled to elect mem
bers of the House of Representatives
and Senate.
Sec. 2. The members of said Con
vention shall be .chosen in the same
manner, at the places fixed for hold
ing general, elections, and by the
electors qualified to vote for mem
bers of the House of Representatives
and Senate.
Sec. 3. The election of members of
said Convention shall be held on the
first Tuesday in the month of May,
1871: and such election shall be con
ducted in conformity to the laws in
force respecting elections; and the
Clerks or other officers whose duty
it shall be to give notice of election
for members of the House of Repre
sentatives and Senate, shall give no
tice in the same manner qf the' elec
tion for members of said Convention.
Sec. 4. The several judges shall
return the votes given at said elec
tion, and the votes shall be canvassed
in the same manner as shall then be
provided by law for the canvass and
return of votes in elections for mem
bers of the House of Representatives

18

ORGANIZATION

Tuesday]

CALL TO ORDER

[June 13

and Senate, and certificates of elec
tion shall be given to persons entitled
thereto, by the same officers and in
the same manner as members of the
House of Representatives and Senate,
shall be entitled to receive the same;
and in case of contested elections to
the Convention, the contesting candi
dates shall pursue the same course
and be governed by the same rules as
shall then be provided by law in con
tested elections for members of the
House of Representatives and Senate.
Sec. 5. The members chosen to
said Convention shall meet in the
hall of the House of Representatives
on the day before mentioned, at the
hour of 2 o'clock P. M., and before
entering upon their duties as mem
bers of said Convention, shall each
take an oath to support the Consti
tution of the United States, and to
faithfully discharge his duty as a
member of said Convention; said
Convention shall be the judge of the
election, and qualification of its own
members; and the members shall be
entitled to the same privileges to
which members of the Legislature
are entitled.
Sec. 6. The members of said Con
vention shall elect one of their num
ber President, and may elect one or
more Secretaries, and such other offi
cers and employees as the business
of the Convention may require; the
members of the Convention and their
Secretaries shall be entitled to re
ceive as compensation for their -ser
vices three dollars per day, and the
same mileage as may be allowed by
"law to members and clerks of the
House of Representatives and Senate;
the subordinate officers and employ
ees shall receive such compensation
as the Convention shall by resolu
tion direct.
Sec. 7. The amount due each per
son shall be certified by the Presi
dent of the Convention to the Audi
tor of State, who shall issue war
rants upon the Treasurer of the State,
and the same shall be paid by the

Treasurer as other warrants are
paid. Sec. 8. It shall be the duty of the
Secretary of State to attend said Con
vention at the opening thereof; and
he and all other public officers shall
furnish said Convention with all such
statements, .books, papers and public
documents in their possession, or per
taining to their office, as the Conven
tion may order or require; and "it
shall be the duty of the Secretary of
State to furnish the members with
such stationery as is usual for the
Legislature while in session, and to
cause such printing to be done as the
Convention may require.
Sec. 9. The amendments, altera
tions or revisions of the Constitution
agreed to, together with the journal
of said Convention, shall be filed in
the office of the Secretary of State.
The amendments, alterations or re
visions of the Constitution shall be
published in such manner and in such.
quantity as shall be ordered by the
Convention. Sec. 10. The amendments, alter
ations or revisions of the constitu
tion shall be submitted to the people
for their adoption or rejection, at an
election to be called by said conven
tion, and every person entitled to
vote by the laws in force at the time
such election is held, may vote on
the adoption or rejection of said
amendments, alterations or revisions
of the constitution, and said amend
ments, alterations or revisions of the
constitution shall not take effect un
less adopted by a majority of the
electors voting at such election. '
Sec. 11 The amendments, altera
tions or revisions shall be so prepared
and distinguished by numbers or oth
erwise, that they can be voted upon
separately, unless the convention
shall deem the same unnecessary or
impracticable. The convention shall
prescribe the form or manner of vot
ing, the publication of the amend
ments, alterations or revisions, the
notice of elections, and such other
matters as in their judgment the

ORGANIZATION

19

Tuesday]

COMMITTEE ON CREDENTIALS

[JuEe 13

best interests of the State may de
mand. Sec. 12. At the election required
by section 10 of this act, the judges
Of election shall receive the votes
in the form to be prescribed by said
Convention, and the laws of this
State then in force relating to gener
al elections, shall apply to the vot
ing upon said amendments, altera
tions or revisions, so far as the same
can be made applicable thereto; and
the votes shall be canvassed, and all
proceedings shall be had in regard
to them, as nearly as practicable,
in the manner prescribed by law then
in force, in respect to elections for
State officers, provided that said con
vention may prescribe any other man
ner of canvassing the votes given at
said election, and provide the way
and manner of .the "amendments, al
terations or revisions of the consti
tution taking effect after its adop
tion by the people.
Sec. 13. Any newspaper in this
State.which shall give this act one in
sertion before the tenth day of April,
1871, shall, upon forwarding to the
Secretary of State a copy contain
ing such publication, be entitled to
receive pay for the same, at the same
rate as allowed by contract for pub
lishing the laws of the State, which
sum shall be certified to the Auditor,
who shall draw a warrant upon the
Treasurer for that amount.
Sec. 14. That the. sum of fifteen
thousand dollars, or so much thereof
as may be necessary to carry into eff
ect the provisions of this Act, be
and the same is hereby appropriated
out of any moneys in the Treasury
not otherwise appropriated. G. W. COLLINS,
Speaker of the House of Representa
tives.
E. E. CUNNINGHAM,
President of the Senate.
Approved March 27, A. D. 1871.
WILLIAM H. JAMES,
Acting Governor.
I hereby certify that this bill origi

nated in and passed the House of
Representatives. L. E. CROPSEY,
Ass't Clerk House of Representatives.
On motion the chair appointed the
following Committee on Credentials:
J. C. Myers, of Douglas.
J. E. Philpott, of Lancaster.
S. P. Majors, of Nemaha. , ¦ '
B. S. Newsom, of Otoe.
O. A. Abbott, of Hall.
On motion Convention took a re
cess of twenty minutes. ,
After recess,, Mr. Myers, Chair
man of Committee on Credentials
reported that they had examined the
credentials of the following persons
and found them entitled to seats in
this body:
O. A. Abbott, Hall county, 9th
Senatorial District.
M. Ballard, Washington county,
17th Representative District.
J. E. Boyd, Douglas county, 5th
Senatorial District.
J. C. Campbell, Otoe county, 3rd
Senatorial District.
J. N. Cassell, Lancaster county, 8th
Representative District.
W. H. Curtis, Pawnee county, 14th
Representative District.
J. W. Eaton, Otoe county, 3rd Rep
resentative District.
E. Estabrook, Douglas county,
5th Senatorial District .
P. S. Gibbs, Burt county, 18th
Representative District.
G. C. Granger, Dakota county, 21st
Representative District.
E. N. Grenell, Sarpy county, 15th
Representative District.
E. P. Gray, Dodge county, 19th
Representative District.
N. K. Griggs, Gage county, 12th
Senatorial District.
I. S. Hascall, Douglas county, 16th
Representative District.
B. I. Hinman, Lincoln county,
26th Representative District.
J. A. Kenaston, Cass county, 4th
Representative District.

20

ORGANIZATION

Tuesday]

OATH OF OFFICE

[June 13

Jas. Kilburn, Saunders county, 8th
Senatorial District.
S. M. Kirkpatrick, Cass county 4th
Representative District.
G. B. Lake, Douglas county, 16th
Representative District.
Lewis Ley, Stanton county, 2 3 rd
Representative District.
Waldo Lyon., Burt county, 6th Sen
atorial District.
D. J. McCann, Otoe county, 3rd
Senatorial District.
S. P. Majors, Nemaha county, 2nd
Representative District.
O. P. Mason, Otoe county, 3rd
Representative District.
C. P. Manderson, Douglas county,
25th Representative District.
Samuel Maxwell, Cass county, 4th
Representative District.
D. T. Moore, York county, 13th
Representative District.
J. C. Myers. Douglas county, 16th
Representative District.
J. D. Neligh, Cuming county, 20th
Senatorial District.
B. S. Newsom, Otoe county, 3rd
Representative District.
W. Parchen, Richardson county,
1st Representative District.
H. W. Parker, Seward county, 10th
Representative District.
J. E. Philpott, Lancaster county,
11th Senatorial District.
B. Price, Jefferson county, 12th
Representative District.
H.' M. Reynolds, Gage county, 7th
Representative District.
Seth Robinson, Lancaster county,
8th Representative District.
J. B. Scofield, Otoe county, 3rd
Representative District.
Jacob Shaff, Saunders county, 9th
Representative District.
A. L. Sprague, Saunders county,
9th Representative District.
R. F. Stevenson, Cuming county,
7th Senatorial District.
C. A. Speice, Platte county, 22nd
Representative District.
A. S. Stewart, Pawnee county, 5th
Representative District.
S. A. Strickland, Douglas county.

16th Representative District.
Geo. H. Thummel, Hall and Mer
rick counties, 2 4th Representative
District. E. W. Thomas, Nemaha county, 4th
Senatorial District.
F. A. Tisdel, Nemaha county, 2nd
Representative District.
E. S. Towle, Richardson county,
1st Senatorial District.
Victor Vifquain, Saline county,
11th Representative District.
B. Wakeley," Douglas county, 16 th
Representative District.
A. J. Weaver, Richardson county,
1st Representative' District.
John Wilson, Johnson county, 6th
Representative District.
J. M. Woolworth, Douglas county,
16th Representative District.
On motion the report was accept
ed and the Committee discharged.
On motion of Mr. Estabrook, Chief
Justice Mason administered the oath
of office to all other members, and
the oath was administered to him by
Associate Justice Lake.
Mr. Myers moved that the Conven
tion now proceed to elect a perma
nent President.
Amended by Mr. Maxwell that the
election be by ballot.
A motion to adjourn until- tomor
row morning was lost.
Mr. Kirkpatrick moved a call of the
House which was agreed to.
On a call of the roll those not an
swering were Messrs. Robinson and
Wakeley. On motion of Mr. Estabrook the
rules of the last House of Representa
tives so far as applicable, were
adopted for the temporary govern
ment of this body.
On motion Messrs. Parker, Phil
pott and Towle were appointed tell
ers by the chair.

ORGANIZATION

21

Tuesday]

ELECTION OF PRESIDENT

[June 13

The Convention then proceeded to
ballot for the permanent president
with the following result:
S. A. Strickland, of Douglas. .. .20
D. J. McCann, of Otoe  3
O. P. Mason, of Otoe  13
E. W. Thomas, of Nemaha  7
J.. M. Woolworth, of Douglas  1
J. E. Boyd, of Douglas  1
Geo. B. Lake, of Douglas  3
J. C. Myers, of Douglas  2
No election.
A motion to adjourn until to-mor
row morning at nine o'clock was lost.
Upon the second ballot the follow
ing was the result:
S. A. Strickland,  26
D. J. McCann  1
O. P. Mason  16
E. W. Thomas  5
Geo. B. Lake  1
J. M. Woolworth  1
The PRESIDENT pro tern. Mr.
Strickland having received a major
ity of all votes cast, he is hereby de
clared duly elected permanent Presi
dent of this Convention. I appoint
Messrs. Lake, Mason and Woolworth
a committee to wait upon Mr Strick
land, inform him of his election, and
conduct him to the chair.
Mr. Strickland was then conducted
to the chair by the gentlemen named
as the Committee.
The PRESIDENT pro tern. I
have the honor to introduce to you
Silas A. Strickland, Permanent Presi
dent of the Convention, (applause).
The PRESIDENT then addressed
the Convention ' as follows:
Address of The President.
GENTLEMEN OF THE CONVEN
TION, It will be unnecessary for me
to say I feel very grateful for this

compliment, and indeed, I regard it
as a great compliment. I hope to
have at the conclusion of our labors,
as much of your respect as I have to
day of your confidence. I shall try
to preside with all the fairness and
impartiality I can command. When I
look about me and see so much of the
best ability of the state, I am satisfied
I shall 'be materially helped in the
performance of my duties. Again I
thank you, gentlemen, for this com
pliment. Adjournment.
Mr. MYERS. I move that the Con
vention adjourn until two o'clock
P. M.
The motion was agreed to.
So the Convention (at twelve
o'clock) adjourned. Afternoon Session.
Mr. McCANN. Mr. President I
move that a Committee of seven be
appointed to prepare Rules for the
government of the Convention, Car
ried. On motion the Convention proceed
ed by ballot to elect a Chief Clerk.
The following gentlemen were put
in nomination: Guy A. Brown, L. E.
Cropsey, L. L. Holbrook, C. M. Blak-
er. The first ballot resulted as follows:
Brown  11'
Cropsey  20
Holbrook  16
Blaker  3
No election.
The second ballot resulted as fol
lows:
Brown  7
Cropsey  21
Holbrook  ....22
No choice.

22

ORGANIZATION

Tuesday]

ELECTION OF OFFICERS

[June 23

The third ballot resulted as fol
lows:
t Cropsey  * . 24
Holbrook  26
The PRESIDENT. Mr. Holbrook
having received a majority of all
the votes cast is hereby declared duly
elected Chief Secretary of this Con
vention. On motion of Mr. Hascall the Con
vention proceeded to the election of
an Assistant Secretary.
The following nominations were
made: Guy A. Brown, J. G. Miller,
L. E. Cropsey,- H. M. Judson, W. S.
McGowan, and C. M. Blaker.
The first ballot resulted as follows:
Miller  2
Brown  5
Cropsey  19
Judson  .7
McGowan  13
Blaker. . :  3
No election.
The second ballot resulted as fol
lows:
Miller  1
Brown  3
Cropsey  24
Judson  5
McGowan  17
No choice.
The third ballot resulted as fol
lows:
Miller   1
Brown  3
•McGowan  18
Cropsey  27
The PRESIDENT. Mr. Cropsey
having received a majority of all the
votes cast, is hereby declared duly
elected Assistant Secretary of this
Convention.

On motion, C. E. Hine was unan
imously elected Doorkeeper.
On motion, the Convention pro
ceeded to the election of a Sergt-at-
Arms, the members voting VIVA
VOCE. On the first ballot the result was
as follows:
Clark  30
Kline  15
Parker  4
The PRESIDENT. Mr. Clark hav
ing received a majority of all the
votes cast, is hereby declared duly
elected Sergt-at-Arms of this Con
vention. Moved that the Convention pro
ceed to the election of a Postmaster.
Lost. On motion the Convention proceed
ed to the election of two Pages.
A motion to elect a third was
lost, and Master W. T. Odell, Thos.
Rush, R. W. Patrick and C. Y. White-
sides were put in nomination.
The result of the call was as fol
lows: Odell  39
Whitesides  34
Rush  25
Patrick  l
Hodges  2
Masters Odell and Whitesides were
then declared duly elected.
A motion was adopted requesting
the clergymen of the city to make
arrangements among themselves to
furnish prayers for the Convention
Pending a motion that the Presi
dent be authorized to appoint a Jan
itor, the Convention adjourned till
10 o'clock to-morrow.
Mr. MYERS. I move that a Jani
tor be appointed for this Convention.

ORGANIZATION

23

Wednesday]

REPORT OF COMMITTEE ON RULES

[June 14

Adjournment.
Mr. WOOLWORTH. Mr. Presi
dent, I move that this Convention
now adjourn.
The motion was agreed to.
So the Convention (at five o'clock
P. M.) adjourned.

SECOND DAY.
Wednesday, June 14, 1871.
Convention called to order by the
President. Prayer by Rev. Mr. Fi field
Roll call. All members being pres
ent but Mr. Robinson.
Judge WAKELEY of Douglas be
ing present, on motion the oath of
office was administered to him by
Chief Justice Mason. Judge Mason
also administered the oath to the of
ficers of the Convention.
Minutes of the preceding day read
and approved.
The President announced the fol
lowing Committee on Rules, viz:
Messrs. McCann, of Otoe.
Lake, of Douglas.
Thomas, of Nemaha.
Maxwell, of Cass.
Towle, of Richardson.
Abbott, of Hall.
Philpott, of Lancaster.
Mr. McCANN, Chairman of Com
mittee on Rules, announced that the
committee was ready to report.
The report was thereupon read by
the Secretary as follows:
Rules of The Convention.
Number 1. A majority of the Con
vention shall constitute a quorum,
but a smaller number may adjourn
from day to day, and compel the at
tendance of absent members.
No, 2. The Convention shall keep
a journal of its proceedings, and pub

lish them. The yeas and nays of the
members on any question shall, at
the desire of any three of them, be
entered on the journal.
No. 3. Any two members of the
Convention shall have liberty to dis
sent and protest against any act or
resolution which they may think
injurious to the public, or to any in
dividual, and to have the reasons
of their dissent, in respectful lan
guage, entered onthe journal, without
debate, whenever the same shall be
filed with the Secretary.
No. 4. The Convention may rep
rimand or censure its .members for
disorderly behavior, and with the
concurrence of two-thirds of all the
members elected, expel a member,
and the reason for such exoulsion
shall be entered upon the journal,
with the names of the members vot
ing on the question.
No. 5. The Convention, during its
sessions, may punish by imprisonment
any person not a member, who shall
be guilty of disrespect to the same
by any disorderly or contemptuous
behavior in its presence; provided,
such imprisonment shall not at any
one time exceed twenty-four hours.
No. 6. The Door-keeper shall not
permit any person not a member of
this Convention to pass -inside the
hall, except Judges of the Federal
and Supreme Courts of this State,
the Acting Governor, Heads of De
partments, members of the Senate
and House of Representatives of the
United States, officers of the Conven
tion, and reporters of the press duly
assigned as such by this Convention.
No. 7. The President shall take the
chair every day, at the hour to which
the Convention shall have adjourned;
shall immediately call the members
to order, and on the appearance of a
quorum shall cause the ' journal of
the preceding day to be read; and
in all cases, in the absence of a quo
rum, the members present may take
such measures as shall be necessary
to procure the attendance of absent
members, and the Convention may ad-

u

ORGANIZATION

Wednesday]

RULES OF THE CONVENTION

[June 14

journ from day to day until a quo
rum shall be present.
No. 8. He shall preserve decorum
and order; may speak to points of
order in preference to other mem
bers, rising from his seat for that
purpose, and shall decide questions
of order, subject to an appeal to the
Convention by any one member; on
which no member shall speak more
than once unless by leave of the Con
vention. No. 9. He shall rise to put a ques
tion, but may state it sitting.
No.10. Questions shall be distinct
ly put in this form, viz: "As many
as are of the opinion that — (as the
case may be) say 'aye,' "and after
the affirmative voice is expressed,
"As many as are of the contrary opin
ion say 'no." If the President doubt,
or a division be called for, the Con
vention shall decide; those in the af
firmative shall rise from their seats,
and afterwards those in the negative.
No. 11. The President shall exam
ine and correct the journal before it
is read; he shall have general direc
tion of the hall; he shall have the
right to name any member to per
form the duties of the chair, but such
substitution shall not extend beyond
one day, and such substitute shall
be vested during such time with all
the powers of the President.
No. 12. All Committees shall be ap
pointed by the President, unless oth
erwise ordered by the Convention.
No. 13. In case of any disturbance
or disorderly conduct in the gallery,
the President (or Chairman of the
Committee of the Whole Convention)
shall have power to order the same to
be cleared.
No. 14. The President shall assign
to the Sergeant-atArms and his as
sistants their respective duties and
Stations. No. 15. Whenever any member is
about to speak, or deliver any matter
to the Convention, he shall rise from
his seat and address himself to "Mr.
President," (not moving on the
floor) and shall confine himself

strictly to the proposition or propo
sitions immediately pending before
the Convention.
No. 16. If any member in speaking
(or otherwise) transgress the Rules
of the Convention, the President
shall, or any member may, call him
to order; and in which case the mem
ber so called to order shall immediat-
ly sit down unless permitted to ex
plain; and the Convention, if appeal
ed to, shall decide on the case, but
without debate. If the decision be
in favor of the member so called to
order, he shall be at liberty to pro
ceed, but not otherwise unless by
leave of the Convention.
No. 17. When two or more, mem
bers happen to rise at once, the Pres
ident shall name the member who
is first to speak.
No. 18. Every member who shall
be within the hall of the Conven
tion when a question shall be stated
from the chair, shall vote thereon,
unless he shall be excused, or be per
sonally interested in the question.
No member shall be obliged to vote
on any question unless within the
hall when the question shall be put;
but in the case of a division by yeas
and nays, may vote if present before
the last name shall be called. Any
member desiring to be excused from
voting must make his request before
the roll shall be commenced. He may
then state concisely, without argu
ment, his reasons for asking to be
excused, and the question of excuse
ing shall be taken without debate.
No. 19. When a motion is made
it shall be stated by the President,
or being made in writing, shall be
handed to the Secretary, and read
aloud before debate.
No. 20. Every motion shall be re
duced to writing, if the President or
any member desire it.
No. 21. When the yeas and nays
shall be taken on any question, no
member shall be permitted to vote
after the decision is announced
from the Chair, unless by unanimous
consent of the Convention.

ORGANIZATION

25

Wednesday]

RULES OF THE CONVENTION

[June 14

No. 22. After a motion is stated
by the President, or read by the Sec
retary, it shall be deemed in the pos
session of the Convention, and may
be withdrawn at any time before
decision or amendment.
No. 23. When a question is under
debate no motion shall be received
but to adjourn, to call the House,
to lay ou the table, the previous ques*
tion, to postpone indefinitely, to post
pone to a day certain, to commit or
to amend ; which several motions
shall have precedence in the order
in which they stand arranged.
No. 24. A motion for adjournment
shall always be in order, and be de
cided, as well as the motion to lay on
the table, without debate.
No. 25. No motion to postpone to
a day/ certain, or indefinitely, or to
commit, being decided, shall again be
allowed on the same day 'and at the
same stage of the proposition.
No. 26. A motion to strike out the
proposition shall have precedence of
a motion to amend, and if carried
shall be deemed equivalent to its re
jection. No. 27. When a blank is to be filled,
and different sums and times are pro
posed, the question shall first be put
on the largest sum and longest time.
No. 28. No person shall be permit
ted to smoke in the Convention cham
ber, or to give any signs of approba
tion or disapprobation, either on the
floor or in the gallery.
No. 2 9. It shall be the duty of the
Secretary to keep a book, in which he
shall record all proceedings of the
Convention; and to do and perform
all other facts appertaining to his
office, as may be required of him by
the Convention or its presiding of
ficer. No. 30. It shall be the duty of the
Sergeant-at-Arms to attend the Con
vention during its sittings, to execute
the commands of the Convention,
from time to time, together with all
such process, issued by authority
thereof as shall be directed to him by
the President.

No. 31. The Standing Committees
of the Convention shall consist of
the following:
1. Judiciary  11
2. Executive  7
3. Legislative .  7
4. Electoral and Representative
Reform  7
5. The Right of Suffrage  7
6. Education, School Funds and
Lands  7
7. Municipal Corporations  7
8. Railroad Corporations  7
9. Miscellaneous Corporations... 7
10. Revenue  7
11. Finance  7
12. Banks and Currency  7
13. State,County and Municipal In
debtedness  7
14. Public Accounts and Expendi
tures  7
15. Military Affairs  7
16. Retrenchment and Reform..., 7
17. Counties  7
18. Township or Precinct Organi
zation  7
19. State Lands (other than School
Lands)  7
20. Judicial Circuits and Congres
sional Apportionment  5
21. Legislative Apportionment . . 7
22. Manufactures and Agriculture 7
2 3. State Institutions and Public
Buildings  7
24. Penitentiary and Reformatory
Institutions  7
25. Bill of Rights  7
26. Federal Relations  7
27. Future Amendments  7
2 8. Printing and Binding  3
29. Roads  7
30. Internal Improvements  7
31. Revision and Adjustment .... 7
32. Schedule  7
33. Miscellaneous Subjects  7
No. 32. If the question in debate
contains several propositions, any
member may have the same divided;
and on motion to strike out and in
sert, it shall be in order to move
for a division of the question; and
the 'rejection of a motion to strike
out and insert one proposition

26

ORGANIZATION

Wednesday]

ORDER OF BUSINESS

[June 14

shall not prevent a motion to strike
out and insert a different proposition
nor prevent a subsequent proposition
simply to strike out; nor shall the
rejection of a motion simply to strike
out prevent a subsequent motion to
strike out and insert.
No. 33. The unfinished business
on which the Convention was engag
ed at its last adjournment shall, at
the next meeting of the Convention
of the same day, have precedence of
all other business.
No. 34. When a question has been
once put, and carried in the affirm
ative or negative, it shall be in
order for a member of the majority
to move for a reconsideration there
of; but no motion for the re-con
sideration of any vote shall be in
order after the expiration of two
business days. Such motion shall
take precedence of all other ques
tions, except a motion to adjourn.
No. 35. When motions are made
for reference of the same subject to
a , Select Committee and to a Stand
ing Committee, the question of re
ference to a Standing Committee
shall be first put.
No. 36. Upon the call of the Con
vention, the names of delegates shall
be called by the Secretary, and the
absentees noted, after which the
names of such absentees shall again
be called over. The doors shall then
be closed, and those for whom no
excuse or insufficient excuses are
made, may, by order of those present,
(if a quorum), be taken into custody
as they appear, or may be sent for
and taken into custody, wherever to
be found by the Sergeant-at-Arms
of the Convention.
No. 37. In forming a Committee
of the Whole, the President shall
leave the chair, and the Chairman,
to preside in Committee, shall be
appointed by the President.
No. 38. Upon propositions being
committed to Committee of the
Whole, they shall be first read
throughout by the Secretary, and
then again read and debated by

clauses, leaving the preamble to be
considered last. After report of
said committee the proposition shall
again be subject to debate or amend
ment before a question is taken.
No. 39. The rules of parliamentary
practice comprised in Cushing's
Manual shall govern the Convention
in all cases in which they are appli
cable and not inconsistent with the
standing rules and orders of the Con
vention. No. 40. A motion to commit, until
it is decided, shall preclude all
amendments and debate on the main
question; and a motion to postpone
indefinitely or to a day certain, until
it is decided, shall preclude all
amendments on the main question.
No. 41. No motion or proposition
on a subject different from that under
consideration, shall be admitted
under color of amendment.
No. 42. No rule of the Convention
shall be altered, suspended or res
cinded without the vote of two-thirds
of the members present.
No. 43. The hours of meeting
shall be 10 A. M. and 2 P. M., unless
otherwise ordered.
Order of Business.
No. 44.
1. Reading of the Journal.
2. Communications and presen
tation of petitions.
3. Unfinished business of the
previous day.
4. Reports from Standing Com
mittees.
5. Reports from Select Com
mittees.
6. , Presentation of resolutions
and propositions to amend
the Constitution.
No. 45. The previous question
shall be always in order, and shall
be put in this form: "Shall the
main question be now put?" and until
it is decided shall preclude all am
endments or debate.
No. 46. When, on taking the pre
vious question, the Convention shall
decide that the main question shall
not be put, the main question shall

ORGANIZATION

27

Wednesday]

DRAWING OF SEATS

[June 14

be considered as still remaining
under debate.
No. 47. The effects of the main
question being ordered shall put
an end to all debate, and bring
the Convention to a direct vote — first,
upon all amendments reported or
pending, being first applied to the
amendments last moved, and then
on the main question.
No. 48. After the motion for the
previous question has prevailed, it
shall not be in order to move a call
of the Convention prior to a decision
of the main question.
No. 49. Every article which it
is proposed shall form part of the
Constitution, shall be read the first
and second times, and be referred
to the Committee of the Whole; and
after it shall have been considered in
Committee of the Whole, and after
the amendments reported by the
Committee of the Whole, shall have
been acted on, it shall be open to
amendment, in the Convention; and
where there are no further amend
ments to be proposed, the question
shall be on ordering the article to
be Engrossed for its third reading;
and after the same shall have been
Engrossed the same shall not be
amended except by the unanimous
consent of the Convention. And
after the article has been read a
third time and passed, it shall be
referred to the committee on revis
ion and adjustment, who shall re
port to the Convention all such verbal
amendments as they shall deem
expedient not changing in any man
ner the substance of such article:
Provided, however, That this rule
shall not be so construed as to pre
vent a majority of the Convention
from taking up the report of the
said committee , and making any
alterations or amendments thereto.
Mr. HASCALL moved that the re
port of the Committee be adopted.
Mr. MASON moved to amend by
submitting the report to Committee of
the Whole. The amendment was

agreed to and the motion carried.
' Mr. TOWLE offered the following
resolution: RESOLVED, that we now proceed
to draw seats in the following man
ner: 1. Folded ballots to be prepared,
each containing the name of a mem
ber. 2. The ballots to be examined and
compared with the official lists, by
a Committee of two, to be appointed
for that purpose by the President.
3. The ballots to be placed in a
box and thoroughly shaken in the
presence of the Committee.
4. The members then to retire
from the seats.
5. A person, other than a member
or officer, to be designated to draw
ballots. 6. Each ballot as drawn to be hand
ed to the Secretary and to be opened
by him, who shall announce the name
drawn. 7. The person whose name shall be
drawn, to select his seat and occupy
it till the completion of the draw
ing. 8. The drawing to be continued in
this manner till completed.
Mr. TOWLE moved the adoption
of the resolution which was not
agreed to.
Mr. WOOLWORTH moved a recon
sideration of the vote by which the
resolution- was lost, which was agreed
to. The question recurring on the pas
sage of the resolution, Mr Boyd mov
ed to amend so that, the drawing
should be by delegation. The amend
ment being withdrawn the question
was put and the resolution adopted.
Chair appointed as a Committee to
prepare ballots and superintend the
drawing, Messrs. Philpott and Bal
lard. In accordance with the provisions
of the resolutipn adopted, the Secre-

28

ORGANIZATION

Wednesday]

AMENDMENTS TO RULES

[June 14

tary prepared the names of members
which were deposited in a box, and
as their names were drawn therefrom
by Mr. Hall, one of the reporters,
members selected their seats.
Mr. MANDERSON offered a reso
lution for the appointment of a Com
mittee of three to take into considera
tion the number of short hand report
ers necessary to take the proceedings
of the Convention, and the compensa
tion that should be allowed them.
Adopted.
Messrs. Manderson, Neligh and
Weaver were appointed such Com
mittee. On motion of Mr. Stewart the Con
vention took a recess of five minutes.
After Recess.
The PRESIDENT called the Con
vention to order.
Rules of The Convention.
Mr. McCANN. I move the Con
vention resolve itself into Committee
of the Whole to consider the Rules
for the government of the Conven
tion. Agreed to NEM CON.
At eleven o'clock and thirty min
utes , A. M. the Convention resolved
itself into a Committee of the Whole
with Mr. Campbell in the Chair.
After sitting some time, the Commit
tee arose, reported progress, and ask
ed leave to sit again at 2 P. M..
Report adopted.

Afternoon Session.
Wednesday, June 14, 1871.
At 2 o'clock P. M., Convention met
and went into Committee of the
Whole, Mr. Campbell of Otoe in
the Chair, resuming the considera
tion of the Rules reported for the

government of the body.
After some time the Committee
arose and Mr. CAMPBELL, Chair
man of the Committee of the Whole
Convention, reported that the Com
mittee had had under consideration
the permanent Rules of the Conven
tion and reported the following
amendments: Rule 6. Amended so as to read.
"also members of the present Legis
lature of Nebraska be allowed the
privileges of the floor."
Rule 31. Sec. 1 — add "and judicial
districts" See's 10. and 11. Consol
idate "Finance and Revenue". Sec.
19. amended by striking out the
words "judicial circuits".
Sec. 6. Add two more members to
the Committee. Rule 36. add, "all
propositions presented to the Con
vention relating to the provisions or
frame of the Constitution, shall in
the first instance be referred to an ap
propriate standing Committee with
out debate, except as to the Com
mittee to which the refeience shall
be made."
Mr. WAKELEY offered the follow
ing amendment to Rule 45 — add, af
ter the words "in order," "if the mo
tion therefor be seconded by ten
members". Amendment adopted.
Mr. ABBOTT. I move the adop
tion of the Rules as amended.
Mr. MYERS. I move that 200
copies of the Rules be printed for the
use of the Convention, under the
superintendence of the Secretary of
State. Agreed to.
Mr. PHILPOTT announced the ar
rival of his colleague, Mr. Robinson,
who appeared, and the oath was ad-

ORGANIZATION

29

Thursday]

POSTAGE AND FRANKING

[June 15

ministered to him by the Chief
Justice. Mr. THOMAS. Mr. President I
wish to ask leave of absence until
Monday next, for Mr. Mason.
Leave granted NEM. CON.
Adjournment.
Mr. MYERS. Mr. President I move
that the Convention adjourn.
The motion was agreed to.
So the Convention (at six o'clock
and thirty minutes) adjourned.

THIRD DAY.
Thursday, June 15, 1871.
The Convention met at ten o'clock
A. M. and was called to order by the
President. Prayer was offered by Rev. D. R.
Dungan of Lincoln.
The journal of yesterday was read
and approved. Order of Business.
The PRESIDENT. Gentlemen, I
shall follow the order of business con
tained in the Rules adopted on yes
terday. Under the order of unfinished busi
ness of the previous day.
Appointment of Janitor.
Mr. MYERS. Mr. President, un
der that head, I will call up the
motion for the appointment of a.
janitor for the care of this hall dur
ing the session.
The PRESIDENT. Gentlemen, it
has been moved and seconded that a
janitor be appointed for the ca're of
this hall during the sessions of this
Convention. Those in favor of the
motion will say "aye". Opposed, "no".
Carried. Postage.
Mr. MOORE. Mr. President I

move that the Secretary of State be
requested to furnish the members of
the Constitutional Convention with
the necessary amount of postage
stamps. The PRESIDENT. The gentlemen
will frank their letters and stamps
will be put upon them by the post
master. Mr. McCANN. I understand our
yesterday's mail is delayed In conse
quence of no arrangement being per
fected. Mr. PARCHEN. Mr. President, I
wish to offer a resolution.
The Secretary read -the resolution
as follows:
RESOLVED. That the sum of one
hundred dollars, or so much thereof
as may be necessary, shall be set
aside out of the funds of th& Conven
tion. The PRESIDENT. Is the motion
of the gentleman from York second
ed? (yes, yes).
Mr. McCANN. I hope a different
plan will be adopted. We do not
wish postage stamps here^ lying
around loose. I suggest that mem
bers frank their mail matter and the
postmaster stamp the same and
charge to the Convention. We then
obtain the exact amount of postage
required. I think the postmaster
will prefer this course.
Mr. HASCALL. I would say, that
was the plan adopted by the last
Legislature and I was informed by
the postmaster that he got out all
his clerks and all the cheap boys that
could be found, yet they were not suf
ficient to put on the necessary
stamps. Mr. KIRKPATRICK. Would it
not be better for each gentleman to

30

NEWSPAPERS

Thursday]

CASSELL— TO WLE-ESTABROOK

[June 15

furnish his own postage. I am will
ing to do so.
Mr. WILSON. It seems to me, it
would delay the mail if letters are
to be stamped by the postmaster. Let
the members have postage stamps
and return what they have left.
Mr. ESTABROOK. Does any one
know that the postmaster would fur
nish stamps for such pay as we ex
pect to give here, and is it known
we can procure stamps by a resolu
tion? I move that the resolution be
referred to a committee of three.
The motion was agreed to.
The PRESIDENT. The Committee
will consist of Messrs. Estabrook,
Moore and Parchen. Newspapers.
Mr. CASSELL. I offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Secretary
be instructed to provide 300 copies
of the Daily State Journal for the use
of the Convention during the ses
sion. Mr. TOWLE. I offer the follow
ing resolution as an amendment.
The Secretary read the resolution
as follows:
RESOLVED. That each member
of this Convention be allowed to sub
scribe for seven newspapers (Daily)
containing the reports of the pro
ceedings of this Convention, and that
so much of the funds of this Conven
tion as may be necessary be, and are
' hereby, appropriated for such pur
pose. Mr. HASCALL. I move to amend
by saying three instead of "seven"
copies. Mr. ESTABROOK. It seems to me
that the resolutions, some of them
should cover the entire newspaper

question. We ought to consider the
propriety of taking all papers it is
necessary should be taken. My own
view is that each member be allowed
to take one copy of each paper, daily
and weekly; not for the purpose of
enlightening their constituents, but
to learn what their constituents have
to say to them. It has been the rule
of all parliamentary bodies to send
papers abroad, to let their constitu
ents know what the members were
doing, but I do not think that is ne
cessary here. We need the advice and
instruction of our constituents, and
for that purpose I favor the plan of
taking one number each of every
paper published in the State. I do
not think we need any more copies
of the Journal, than of any other
paper. Mr. NEWSOM. I think it would
be unfair to impose upon me such
a paper as I would not prefer. I am
in favor of the amendment.
Mr. WILSON. I have no objection
to the suggestion of the gentleman
from Douglas, but in taking the pa
pers abroad throughout the State we
ought to know if they are prepared
to publish the action of this Conven
tion. I would favor the first resolu
tion for 300 copies of the Journal.
• The PRESIDENT. Gentlemen, the
question Is on the amendment to the
amendment, by the gentleman from
Douglas, Mr. Hascall.
The amendment was not agreed to.
The PRESIDENT. The question
now is upon the amendment of the
gentleman from Richardson (Mr.
Towle) .
The amendment was agreed to.
The PRESIDENT. The question

PRINTING

31

Thursday]

THOMAS— MASON— KIRKPATRICK

[June 15

now is upon the original resolution as
amended. The resolution was agreed to.
Newspaper Reporters.
Mr. MYERS. I move that the
President of this Convention be re
quested to assign the. several report
ers present, seats upon the floor of
the House.
The motion was agreed to.
Printing.
Mr. THOMAS. I offer the follow
ing resolution.
RESOLVED. That the Secretary
of State be required to communicate
to this Convention as soon as possible
a statement showing the entire cost
to the State of 'printing and binding,
and also the contract price for which
the same has been let for each year
since the admission of Nebraska as a
State. Mr. MASON. I do not rise to offer
an amendment but to add an inquiry
as to the arrangement for the print
ing for this Convention, which more
Immediately concerns us, whether it
has been awarded to the lowest bid
der, or whether it is let to some
chosen favorite. I want it put in
the market; that it be under the con
trol of this Convention, and the con
tracts awarded to the lowest bid
der. *I hope the gentleman will
amend his resolution so as to requires
the Secretary to inform the members
what arrangement has been made,
and upon what terms, to procure the
printing of the proceedings of this
Convention. We have no power to
remedy the past. We may, perhaps,
avoid the commission of errors in the
present, and set an example to avoid
them in the future.
Mr. McCANN. What printing has

already been done, has been done in
accordance with the act.
Mr. KIRKPATRICK. It strikes
me that the act of the Legislature
providing for this Convention makes
it the duty of the Secretary to pro
cure printing. This thing of letting
it out to public and general compe
tition may work some trouble. It is
plain to me that the incidental print
ing ought to be done here. I am as
much in favor of economy as any
body. Mr. THOMAS. I will state that
the object I had in view in introduc
ing that resolution was that the ques
tion of public printing might come
before the Convention in order to
show how this thing has been done;
and see whether it is advisable to
follow the same course or whether
we shall adopt some mode of our own.
I agree with the gentleman that some
plan be adopted with regard to >the
printing for this Convention, but that
should be a separate question. The
Printing Committee should first re
port. Mr. MASON. I see now it may be
necessary to adopt the resolution of
the gentleman from Nemaha, (Mr.
Thomas) for the reason that if I
recollect correctly, there is a State
contract existing.
Mr. ESTABROOK. That is pre
cisely my idea but I am not certain
however that the letting covers the
printing for this Convention. I see
the law provides that the Secretary
shall cause such printing to be done
as the Convention may require. That
however may not be incompatible
with the provisions of the law requir
ing that the State printing be let to

32

OFFICIAL REPORTERS

Thursday]

PHILPOTT— CASSELL— MANDERSON

[June 15

the lowest bidder.
The PRESIDENT. The question
is upon the adoption of the resolution
of the gentleman from Nemaha (Mr.
Thomas). The resolution was agreed to.
Mr. PHILPOTT. I offer a resolu
tion. The Secretary read the resolution
as follows:
RESOLVED. That the Secretary
of State be directed by this Conven
tion to immediately advertise for five
days to receive bids for the price for
which parties bidding will do the nec
essary printing for the Convention,
and that he should be instructed to
award the printing to the lowest bid
der, and that the same be awarded
to a Nebraska printer.
Mr. PHILPOTT. The printing
contract alluded to by the gentleman
from Otoe (Mr. Mason) refers only to
the printing for the Legislature, and
not for this Convention.
Mr. ESTABROOK. Then there is
something defective about it, if it
does not provide for the printing of
this Convention.
Mr. ABBOTT. That the Committee
on printing and binding will decide.
Mr. CASSELL. I move the resolu
tion be referred to a committee of
three. . Mr. McCANN. We have already
a committee of three on printing and
binding. Mr. ESTABROOK. I do not under
stand that the duties of that commit
tee pertain to the transactions of this
body, but they do to the articles in
the Constitution.
Mr. McCANN. I take it that the
committee will no doubt consist of
three professional printers if there

be that number in this body. I object
to the appointment of two or three
committees on the same subject.
The PRESIDENT. The question is
upon the motion of the gentleman
from Lancaster, (Mr. Cassell), to re
fer the resolution of his . colleague
(Mr. Philpott), to a committee of
three. The motion agreed to.
Official Reporters.
Mr. MANDERSON. Mr. President,
It is out of the order but I ask leave
to submit the report of the Commit
tee to whom was referred the matter
of reporting the proceedings of the
Convention. ("Leave")
Your Committee to whom was re
ferred the matter of reporting the
proceedings of the Convention re
spectfully report:
1st. The only short hand reporters
to their knowledge, within the state
are John T. Bell, John Hall, Dan
Brown and John Gray, who form a
business partnership under the name
of "Bell & Co."
2nd. These gentlemen are compe
tent, responsible and well fitted for
the work.
3rd. They agree to give their unit
ed services in reporting and trans
cribing the proceedings during the
Convention, and have the copy jeady
for the printer, as speedily as requir
ed by him.
4th. They demand for this service
$30.00 a day during the session
of the Convention.
5th. This is as cheaply as the
work can be done, and the compensa
tion is below the usual rates paid.
Your Committee therefore recom
mend that Messrs. Bell & Co., be em
ployed at the rate of compensation
asked, for the purpose named.
CHAS. F. MANDERSON.
A. J. WEAVER.
JOHN D. NELIGH.

ADJOURNMENT

33

Thursday]

STRICKLAND-WAKELEY

[June 15

Mr. ESTABROOK. I move the re
port be adopted.
The motion agreed to.
Mr. CAMPBELL. I now move
Bell & Co. be elected Reporters of
the Convention.
Mr. MANDERSON. I move to
amend the resolution by adding "At a
compensation of $30.00 per day."
The motion as amended was
agreed to NEM. CON.
Mr. NELIGH. I move that the
Chief Justice administer the oath
to the Reporters.
Motion agreed to NEM. CON.
The Chief Justice administered the
oath to the Reporters as follows:
You and each of you do solemn
ly swear to support the Constitution
of the United States; and to faith
fully and truly report the proceed
ings of this Convention according to
the best of your skill and ability, and
this you do in the presence of God.
Leave of Absence. ¦
Mr. WOOLWORTH. I ask leave of
absence until Monday.
,Leave granted NEM. CON.
Mr. MAXWELL. Mr. President I
desire leave of absence until Mon
day noon.
Leave granted NEM. CON.
Mr. ABBOTT. Mr. President, I
ask leave of absence for Mr. Thum-
mel (of Hall).
Leave granted NEM. CON.
Adjournment.
Mr. WILSON. I move to adjourn
until Monday at 2 o'clock.
Mr. PARKER. I move to amend
that after the announcement of the
Committees, we adjourn until Mon
day at 2 o'clock.
The PRESIDENT. I attempted to
arrange the Committees and found it
3

would require 244 names to fill all
the committees. It is a difficult task
to assign each gentleman to a proper
and appropriate place. I do not wish
to do it hurriedly.
While I do not ask any time and
am willing to make any personal sac
rifice to accomplish the arrangement
of the Committees, I will accept such
time as you may allow.
Mr. WAKELEY. I suggest the ap
propriate way would be for the Pres
ident to communicate to the Conven
tion how much time he requires for
the announcement of the Committees.
The PRESIDENT. I think if a
recess is taken until to-morrow at
10 o'clock I will have the Committees
ready to announce, and those who
desire to go to work can do so. Then
if the Convention desire to adjourn
until Monday they can do so before
the trains leave.
Mr. MASON. In order to bring
this matter before the Convention
I now move to adjourn.
The motion agreed to.
The PRESIDENT. The Convention
stands adjourned until to-morrow at
10 o'clock. (Several members, "The
Rule is until 2 o'clock.")
Mr. LAKE. I move to reconsider
the motion to adjourn.
Mr. HASCALL. I don't know of
any rule by which we can do business
after we have adjourned.
The PRESIDENT. The Chair will
rule we had not absolutely adjourned,
the Chair was in fault. The question
is upon the reconsideration of the
motion to adjourn.

The motion to reconsider agreed

to.

34

EXCURSION— PRINTING

Friday]

CASSELL— MASON

[June 16

Mr. MASON. I move to adjourn un
til to-morrow at 10 o'clock.
The motion agreed to.
So the Convention (at Eleven
o'clock and twenty minutes) adjourn
ed.

FOURTH DAY.
Friday, June 16, 1871.
The Convention was called to or
der at ten o'clock and five minutes by
the President.
Prayer was offered by the Rev. L.
B. Fifield, of Lincoln.
Mr. NEWSOM. Mr. President, I
desire to ask leave of absence until
2 o'clock P. M. Monday, for Mr.
Campbell, and also for Mr. Eaton.
Leave granted NEM. CON.
Reading of the Journal.
The journal of the previous day
was read and approved.
The Secretary read the following:
Lincoln. Neb., June 16, 1871.
Hon. S. A. STRICKLAND,
President Constitutional Conven
tion. Sir: — In behalf of the Executive
Committee I have the honor, cordial
ly to invite the members and officers
of the Convention to participate in
the reception of the citizens of Otoe
county this morning and enclose
herewith, the order of exercises.
I am Sir,
Very respectfully yours,
A. W. KELLOGG,
Chairman Ex-Com.
Order of Exercises.
The train with the excursionists
will arrive at 11 o'clock, A. M.
The Mayor and Council will meet
them at the depot, where a procession
will be formed and take the following
line of march. Up J street to 10th,
down 10 th to O, down O to the grove
where an address of welcome will be
delivered by Elder J. M. Young.

Programme at the Grove.
Music, by the Band.
Address of Welcome.
Invocation, by Rev. H. P. Peck.
Music, by the Band.
Dinner.
After dinner the excursionists will
disperse about town, visiting the pub
lic buildings or friends as they may
desire. At 2:30 o'clock P. M., the
procession will reform on Market
Space and march to the depot. It
is hoped every citizen of Lincoln will
join in escorting our guests to and
from the train. By order of the
EXECUTIVE COMMITTEE.
Printing.
Mr. CASSELL. I wish to offer the
report of Committee on Printing.
The report was read by the Secre
tary: Your Committee on printing re
spectfully submit the following re
port: That, in our opinion, the in
cidental printing is fully provided for
in "An act to provide for calling a
Convention to revise, alter or amend
the Constitution of the State of Ne
braska." J. N. CASSELL.
E. N. GRENELL.
E. W. THOMAS.
Mr. McCANN. I move the report
be accepted, and the Committee dis
charged. The motion was agreed to.
Resolutions.
Mr. MASON. I have a resolution to
offer. '
The Secretary read the resolution
as follows: ^
RESOLVED. That the only legiti
mate province of government, is the
preservation of order, the protection
of life, the security of person and
character and property, and to at
tain these fundamental objects, tax
es may be rightfully and equally lev
ied upon the property of the citizens;
that whatever is taken from the citi-

POSTAGE— FRANKING PRIYILEGE

35

FridayJ

ESTABROOK— THOMAS

[June 16

zens of the State under guise of tax
ation for objects or purposes other
than these is wrong, oppressive, and
unjust. On motion referred to Committee
on Bill of Rights.
Mr. ESTABROOK. Mr. President,
your Committee on the matter of
postage, beg leave to report.
The Secretary read the report as
follows: The Committee to whom was re
ferred the matter of postage for this
Convention would respectfully report
that they have made arrangements
with the Secretary of State, by which
such postage will be by him satis-
factorally adjusted with the Post
master at Lincoln. The method ad
vised is, that each member shall
write his name upon the document
transmitted, which is then to be pro
perly stamped by the postmaster up
on delivery at his office.
The following resolution is respect
fully submitted.
RESOLVED. That the Secretary of
State be directed to cause to be paid
the postage bills of the members of
this Convention, the document to be
mailed having written thereon the
name of the member sending the
same.
E. ESTABROOK.
D. T. MOORE.
WM. PARCHEN.
Report accepted, and resolution
adopted. Mr. THOMAS. I would like to
ask the Chairman of that Committee
to state in their report the amount
to which each member may use the
franking privilege. It seems to me
it would take too much out of the
amount allowed to defray the expen
ses of this Convention. I think five
dollars would be sufficient for each
member. Mr. ESTABROOK. I think that

would appear like charging fraud up
on some members of the House, and
I do not wish to suggest that in our
report. Mr. THOMAS. I did not mean to in
timate that any members would be
guilty of fraud. A person may use
the franking privilege, to the extent
of ten dollars, without committing
fraud. It seems to me there ought to
be some limit to the amount to be
used by each member.
Mr. ESTABROOK. I see no way
of arranging that exeept to allow
each member a certain number of
stamps to stamp their own letters.
That was the plan as adopted by the
Legislature at one time and I am in
formed the postage under that order
of things, amounted to 700 dollars,
but subsequently when the members
were allowed to frank their letters,
and the Postmaster put on the
stamps the postage amounted to only
400 dollars, so it is thought there
was some stealing somewhere, and I
am told further that a package of
stamps was stole here by some one,
If such an amount of documents
seems to be coming from any one
desk here, as would seem to be il
legitimate, then it would be time to
inquire into that matter, and stop the
leak. Mr. STEWART. I move the re
port be adopted and the Committee
discharged. The motion was agreed to.
Mr. ESTABROOK. I move the
adoption of the resolution.
The motion was agreed to.
Announcement of Rules.
Mr. McCANN, Mr. President, I

36

EXTRA CLERKS

McCANN-HASCALL— TOWLE

[June 16

wish to offer the following resolu
tion: The Secretary read the resolution
as follows:
RESOLVED. That Rule 31 be so
amended as to make the Judiciary
Committee consist of thirteen (13)
instead of eleven (11) members.
Mr. McCANN. Mr. President, the
original number, suggested on that
Committee, was thirteen; an amend
ment was offered reducing the num
ber to nine, and it was finally fixed at
eleven. It seems to be conceded that
all the best legal talent of the State
should be upon that Committee. We
all admit that, whatever system be
suggested by that Committee, it
should be a good one. It is under
stood that all the gentlemen whom
it is wished to be upon that Com
mittee are not included. There is a
larger number of lawyers in this Con
vention than was first supposed and
I desire that all of the lawyers pres
ent be upon that Committee.
Mr. HASCALL. Mr. President, I
am opposed to amending our rules,
already passed and placed upon our
desks for our guidance during this
Convention. If the President cannot
select eleven gentlemen from this
Convention competent to perform
this duty, we will have an opportuni
ty to help them when it is brought
before the Convention. Therefore, I do
certainly object to increasing the
number of our Committees. The Com
mittees are so numerous. I presume
the lawyers that are not upon this
Committee will be needed on .other
Committees. I think the Legislative
Committee will require as much legal
talent as this Committee, and is just
as important.

Mr. TOWLE. Mr. President, it ap
pears to me that this Committee is
extra large now, and especially so
when we know that whatever is done
by this Committee must come before
the whole House and be subject to
its action. I see by Rule 43 that "No
rule of the Convention shall be al
tered, suspended or rescinded with
out the vote of two thirds of the
members present."
The PRESIDENT. The question is
upon the adoption of the resolution,
as many as are in favor of it say aye.
Chair is in doubt. Convention di
vided. The resolution was not agreed to.
Extra Clerks.
Mr. TOWLE. Mr. President, I
wish to offer a resolution:
The Secretary read the resolution
as follows:
RESOLVED. That the Secretary
of this Convention, under the con
trol and direction of the President,
is hereby empowered to employ such
necessary clerical assistance as may
be necessary to keep up the proceed
ings of this Convention.
Mr. ESTABROOK. Mr. President,
I would like to inquire if the mover
of the resolution intends to include
the labors of the Committees.
Mr. TOWLE. No, only assistance to
the Secretaries.
Mr. THOMAS. Mr. President, ac
cording to my calculation we have
already provided for $13,000 out of
the $15,000 appropriated to defray
the expenses of this Convention, sup
posing we should stay here thirty
days. It seems to me we should be
cautious about appropriating, and I
do not think it is the proper time to
provide for the employment of other

EXTRA CLERKS

37

Friday]

MCCANN— KIRKPATRICK- WEAVER

[June 16

clerks. We do not know, but should
it become necessary I do not see that
it is at present.
Mr. TOWLE. Mr. President, I
have been informed by the Secretary,
that it is necessary that assistance
should be employed and given to
them, and it appears to me that we
should expedite matters, that we will
save money, and that we will progress
in our business much faster, if we
have clerical force to keep up with
the Convention;, and not compel the
Convention to drag, on account of the
clerks not keeping up, and it was on
account of the suggestion of the chief
Secretary, that I introduced the res
olution. Mr. McCANN. Mr. President, I
would remind my friend from Nema
ha, that, if we have already provided
for the expenditure of $13,000 out of
the $15,000 appropriated for the ex
penses of the Convention that we may
economise by having sufficient cleri
cal force with keeping up our busi
ness, and not prolonging the Con
vention; If we save one or two days
time by employing sufficient force, I
hold it is economy, and hope the re
solution will prevail, but would ask
my friend's consent to amend, by au
thorizing the President to employ suf
ficient force for the use of the vari
ous Committees. As soon as our
Committees are constituted, they
must necessarily have some assist
ance, and, if this resolution will em
body that, I am prepared to vote for
it; I am prepared to vote for it any
way, because I believe it to be a mat
ter of economy, that we should have
clerical force to keep up with the
work.

Mr. KIRKPATRICK. Mr. Presi
dent, I do not know that I fully un
derstand the resolution. I am inclin
ed to the opinion that that resolution
takes it out of the power of the Con
vention to elect clerks; it will per
haps become necessary for this body
to employ an enrolling clerk. This
resolution doubtless takes the power
away from the Convention. In re
gard to the necessity of extra clerks,
I hardly see how it can be, we are not
making a lengthy journal, I suppose
that this day we will not make a
lengthy journal; our Committees are
not in full work, the labors will in
crease when the Committee business
commences, and I am inclined to
think it would be well to wait until
those Committees are assigned their
work, then, they will be the judges
whether they need clerks or not, and
what force they do need. I have
heard gentlemen say that two or
three hours was sufficient for the
work of some of the Committees,
would it not be extravagant to ap
point a regular staff of clerks, if they
had no more labor than that to per
form? I hope the gentleman's mo
tion will not prevail.
Mr. WEAVER. Mr. President, I
hope the motion will prevail. The
gentleman from Cass speaks of them
taking the matter out of the hands of
the Convention with very much reas
on from this fact, the Convention
might spend an hour in electing a
clerk, that might cost $50. which
would pay a clerk nearly all the time
employed here. We do not expect the
President will employ a dozen, or one
more than is needed; we expect he
will employ clerks only as they are

38

EXTRA CLERKS

Friday]

THOMAS— McCANN— MYERS

[June 16

needed and imperatively demanded.
I understand the chief Secretary is
behind after working all last evening
and it is necessary that a clerk should
be employed immediately. I hope
the resolution will prevail.
Mr. THOMAS. Mr. President, It
seems to me that this motion is en
tirely premature; if it is true the
clerks cannot keep up, it seems to me
we will require a great many clerks
to keep up ; if the Convention believes
it will be necessary hereafter to em
ploy additional clerks 1 will not ob
ject, but it seems to me we cannot
need them at this time; for this reas
on, I am opposed to the resolution.
Mr. McCANN. Mr. President, I
understand this clerical force is only
to be employed as absolutely needed.
I do not understand we are to
have one, two or three new clerks
employed to-day, only upon the call
of the Committee for assistance
will the President afford them the
necessary clerical aid. The amend
ment is that he have authority so
to do. I do not understand we are
to have another standing clerk, it is
merely to be subsidiary to the
strength we now have. They are
only to be employed as absolutely
needed. The PRESIDENT. The last part
of that resolution will be very embar
rassing to me. It seems to me the
Committees will know when they
want assistance; if the Convention
think I should regulate this matter I
will try to do it as best I can.
Mr . KIRKPATRICK. Mr. Presi
dent, I am opposed to reposing re
sponsibility on our President that
properly belongs to the Convention.

I am opposed to putting out of pow
er of this Convention the regulating
its own employees. When the necessi
ty arises for additional clerks, this
body will be liberal enough to author
ize it; when Committee clerks are
needed, I have no doubt, the Chair
men of the Committees will signify
that to this body and they will settle
the matter, of course, by providing
them. Mr. MYERS. Mr. President, I con
cur with the gentleman from Nemaha
that the resolution is premature; one
thing is clear, it would increase the
expense of the Convention to a con
siderable extent, it would soon be dis
covered and there would be a hun
dred applicants for those positions,
and soon we would have 30 or 40
gentlemen walking into this hall as
Secretaries of those Committees en
titled, under the rules adopted, to the
privileges of this floor; to avoid an
evil of that magnitude, to avoid the
selection of- any Committee -as being
specially entitled to that favor, to
avoid any discrimination, I think it is
our duty to vote that resolution and
amendment down. Another idea, Mr.
President, is that each Committee can
elect its own Secretary from its own
body; let the Chairman act as Sec
retary. I suppose every one is abun
dantly able and capable of doing it.
I am opposed to the increase of the
clerical force of this Convention, for
two reasons; first, its expense, second
ly, we encumber it with unnecessary
employees; I shall vote against the
whole of it.
The amendment was not agreed to.
The resolution was not agreed to.

STANDING COMMITTEES

39

Friday]

PRESIDENT STRICKLAND

[June 16

Janitor.
The PRESIDENT. Just here I wish
to announce the appointment of A.
KEENE as Janitor.
The PRESIDENT. I will announce
the following as the Standing Com
mittees of this Convention.
Standing Committees.
No. 1. Judiciary. Lake, Mason, Max
well, Thomas, Scofield, Manderson,
Towle, Philpott, Abbott, Griggs,
Stevenson.
No. 2. Executive. Woolworth, Bal
lard, Speice, Robinson, Kirkpat
rick, Newsom, Weaver.
No. 3. Legislative. .Myers, McCann,
Majors, Neligh, Moore, Griggs,
Maxwell. '
No. 4. Electoral and Representative
Reform. Wakeley, Newsom, Has-
call, Maxwell, Reynolds, Lyon, Wil
son.
No. 5. Rights of Suffrage. Maxwell,
Lake, Newsom, Estabrook, Price,
Sprague, Curtis.
No. 6. Education, School Funds and
Lands. Estabrookv Campbell, Ma
jors, Shaft, Vifquain, Gray, Griggs,
Moore, Philpott.
No. 7. Municipal Corpdrations.
Thomas, Manderson, Parchen, Gre
nell, Scofield, Ballard, Kilburn.
No. 8. Railroad Corporations. Boyd,
Mason, Kirkpatrick, Philpott, Ley,
Vifquain, Tisdel.
No. 9. Miscellaneous Corporations.
Moore, Maxwell, Hinman, Eaton,
Price, Thummel, Granger.
No. 10. Revenue and Finance. Mc
Cann, Majors, Parker, Neligh,
Boyd, Abbott, Towle.
No. 11. Banks and Currency. Neligh,
McCann, Boyd, Griggs, Kilburn,
Cassell, Gray.
No. 13. State, County and Municipal
Indebtedness. Kirkpatrick, Rey
nolds, Wakeley, Shaft, Parker, Sco
field, Neligh.

No. 13. Public Accounts and Expend
itures. Thummel, Stewart, Weaver,
Thomas, Lyon, Myers, Kenaston.
No. 14. Military Affairs. Vifquain,
Manderson, Cassell, Hinman, Gray,
Stevenson, Parchen.
No. 15. Retrenchment and Reform.
Manderson, Tisdel, Campbell, Cur
tis, Ley, Speice, Sprague.
No. 16. Counties. Weaver, Kenaston,
Neligh, Reynolds, Ley, Robinson,
Newsom.
No. 17. Township and Precinct Organ
ization. Griggs, Gibbs, Granger,
Grenell, Gray, Eaton, Stewart.
No. 18. State Lands, (other than
school lands.) Scofield, Boyd, Ley.
No. 19. Congressional Apportionment.
Philpott, Hinman, Woolworth,
Sprague, Shaft.
No. 20. Legislative Apportionment.
Towle, Hascall, Stevenson, Wilson,
Reynolds, Abbott, Kenaston.
No. 21. Manufactures and Agricul
ture. Ley, Eaton, Kirkpatrick, Wil
son, Shaft, Lyon, Grainger.
No. 23. State Institutions and Public
Buildings. Cassell, Lake, Ballard,
Curtis, Parker, Gibbs, Campbell.
No. 23. Penitentiary and Reformatory
Institutions. Stewart, Kilburn, My
ers. Parchen, Speice, Thummel, Tis
del.
No. 24. Bill of Rights. Mason, Wool-
worth, Wakeley, McCann, Thomas,
Lyon, Kilburn.
No. 25. Federal Relations. Abbott,
Robinson, Speice, Price, Gibbs, Est
abrook, Curtis.
No. 26. Future Amendments. Ballard,
Eaton, Majors, Moore, Cassell,
Myers, Vifquain,
No. 27. Printing and Binding. Camp
bell, Hinman, Kenaston, Wilson,
Sprague.
No. 28. Roads. Parker, Parchen,
Thummel, Tisdel, Granger, Grenell.
Price.
No. 29. Internal Improvements. Shaft,
Grenell, Stewart, Gray, Boyd, Ma
jors, Lyon.

40

ADJOURNMENT— PRINTING

Friday]

MYERS— PHILPOTT

[June 16

No. 30. Revision and Adjustment.
Woolworth, Mason, Lake, McCann,
Reynolds, Thomas, Weaver.
No. 31. Schedule. Hascall, Towle,
Wakeley, Scofield, Stevenson, Est
abrook, Robinson.
No. 32. Miscellaneous. Stevenson,
Hascall, Weaver, Philpott, Price,
Griggs, Newsom.
Mr. MYERS. Mr. President, I
move that 200 copies of the Com
mittee list be printed for the use of
the Convention.
Motion agreed to NEM. CON.
Adjournment.
Mr. ESTABROOK. Mr. President, I
move you, that when this Convention
adjourn, it do so until Monday, at
two o'clock.
The PRESIDENT. The question is
upon the motion to adjourn.
The ayes and nays were ordered.
The Secretary called- the roll.
The following is the vote:

Philpott,Price,
Reynolds,Shaft,Sprague,
Stevenson,

Stewart, Thomas,
Tisdel,Towle. Vifquain,
Weaver,

ABSENT OR NOT VOTING.

AYES— 18

Abbott,

Majors,

Boyd,

Manderson,

Estabrook,

Neligh,

Granger,

Newsom,

Grenell,

Parker,

Gray,

Robinson,
Scofield, '

Kenaston,

Speice,

Kilburn',

Wakeley,

McCann,

Wilson,

NAYS — 28

Ballard,

Lake,

Cassell,

Ley,

Curtis,

Lyon,

Gibbs,

Majors,

Griggs,

Mason,

Hascall,

Moore,

Hinman,

Myers,

Kirkpatrick,

Parchen,

Campbell, Eaton,
Maxwell,

Mason, .
Thummel, Woolworth,

So the motion to adjourn by Mr.
Estabrook was not agreed to.
Leave of Absence.
Mr. MANDERSON. Mr. President,
I desire leave of absence until Mon
day noon.
Leave granted NEM. CON.
Printing.
Mr. PHILPOTT. I desire to call
up a resolution I offered yesterday in
reference to printing. I think the
resolution is a just one.
Mr. MYERS. Mr. President, I rise
to a point of order. No gentleman in
this house knows what the gentleman
from Lancaster county is discussing.
There is nothing before the house ,
The PRESIDENT. The gentleman
will pass up his resolution.
Mr. PHILPOTT. I did yesterday, I
ask that it be read.
The Secretary read the resolution
as follows:
RESOLVED. That the Secretary
of State be directed by this Conven
tion to immediately advertise for five
days to receive bids for the price for
which parties bidding will do the nec
essary printing for the Convention,
and that he be instructed to award
the printing to the lowest bidder.
Mr. PHILPOTT. I move the passage
of the resolution. This is the Ian-

PRINTING

41

Friday]

PHILPOTT-ESTABROOK

[June 16

guage of Sec. 8 of the Act to provide
for the calling of this Convention:
It shall be the duty of the Secre
tary of State to attend said Conven
tion at the opening thereof; and he
and all other public officers shall fur
nish said Convention with all such
statements, books, papers and public
documents in their possession, or per
taining to their office, as the Conven
tion may order or require; and it
shall be the duty "of the Secretary
of State to furnish the members with
such stationery as is usual for the
Legislature while in session, and to
cause such printing to be done as the
Convention may require.
Now I don't doubt, but that he will
cause this printing < to be done, but
for my part, I am not in favor of
leaving this matter wholly in the
hands of one individual. I believe
that it should be directed by this
Convention that the Secretary adver
tise for bids. I think this is just and
right. It opens up the field and gives
all an opportunity to come in with
their bids, and we will get our print
ing done cheaper than under the
present arrangement, where it is left
in the hands of one individual, who
may let it out to a single favorite par
ty. The printing should be done un
der the direction and control of this
Convention. On the part of our con
stituents, we have the right to see
that this printing, and everything
else, may be done in a manner to
save money. For these reasons. I
urge the passage of this resolution.
Mr. TOWLE. Mr. President, I ask
leave of absence until 2 o'clock P. M.
Monday, for Mr. Scofield.
Leave granted NEM. CON.
Mr. GRAY. I wish to ask leave of

absence for myself for same length of
time. Leave granted NEM. CON.
Mr. HASCALL. I would ask leave
of absence until 2 o'clock P. M.
Monday, also.
Leave granted NEM. CON.
Mr. WAKELEY. Mr. President, I
ask leave of absence until Tuesday
morning. Leave granted NEM. CON.
Printing Again.
Mr. ESTABROOK. I think from
the reading of the law, that this mat
ter is already provided for, I read
from our present Constitution under
the head of "Legislative".
Sec. 2 3. The Legislature shall pro
vide by law that all stationery re
quired for the use of the State, and
all printing authorized and required
by them be done for their use, . or
for the State, shall be let by con
tract to the lowest bidder; but the
Legislature may establish a maxi
mum price. No member of the Leg
islature, or other State officer, shall
be interested, either directly or indi
rectly in any such contract.
This resolution is objectionable in
that it confines the printing to Ne
braska printers. Under the oath I
have taken to support the Constitu
tion I shall feel myself constrained
to vote against the resolution.
Mr. HASCALL. I will remind the •
General, that he has not taken an
oath to support the Constitution of
this State.
Mr. ESTABROOK. I have taken an
oath to do my duty.
Mr. MANDERSON. I move to
amend the resolution by striking out
the words "Nebraska printers."
The amendment was agreed to.

42

PRINTING

Friday]

TOWLE— KIRKPATRICK

[June 16:

Mr. THOMAS. I understand that
the resolution now permits printers
outside of the State to bid, I would
like to have the resolution read.
(Resolution read by the Secre
tary)^ Mr. ESTABROOK. It seems to me
we are in some little difficulty. We
need printing from day to day. I
have an idea that there are contracts
already extant governing these cases,
if there are not there should be.
Mr. PHILPOTT. We cannot tell
just now whether these contracts
have been awarded or not but I do
not think the contracts ought to have
been made. I think we can control
this matter ourselves.
Mr. TOWLE. For my part, I can
see no occasion for disagreement or
difficulty over this printing. Now the
printing of the journal and the print
ing of the debates of the Convention
will rest entirely with the next Legis
lature I think. In my opinion the
$15,000 appropriated will scarcely
last us for our regular expenses for
thirty days. We should economize or
we will find ourselves sitting here
without pay. Now I think the whole
matter of incidental printing should
be left in the hands of the Secretary
of State. I think the incidental print
ing of this Convention should not
amount to over $2 50 or $300 for the
whole session, and the contract for
the printing of the journal and the
debates should be entered into by the
proper authorities.
Mr. KIRKPATRICK. The gentle
man will bear in mind one thing, the
reporters are employed to report the
speeches made here at the rate of
$30 per day, now some means for

printing this matter should be provid
ed, or we might as well not have the
speeches reported. I think, however,
we had better let the matter stand
for the present.
Mr. TOWLE. Mr. President, I
simply wish to read Sec. 8. of the
Act providing for calling this Con
vention. "It shall be the duty of the Secre
tary of the State to attend said Con
vention at the opening thereof; and
he and all other public officers shall
furnish said Convention with all such
statements, books, papers and public-
documents in their possession, or per
taining to their office as the Conven
tion may order or require. And it
shall be the duty of the Secretary of
State to furnish the members with
such stationery as is usual for the
Legislature while in session and to
cause such printing to be done as the
Convention may require.
In having this printing done, and
done especially as demanded, the
Secretary would have to be there
when the first copy is made to look
over the proof sheets, and it would
be impossible for him to do this if
the printing was done away from
here. I therefore think it should be
done here.
Mr. PHILPOTT. I do think the
printers of this town can compete
with the other printers in the state.
I am informed that it can be done for
about a thousand dollars, but that
four or five hundred dollars could be
saved by letting it to the lowest bid
der, and I am in favor of saving even
that amount. And five days are not
long to wait for that.
Mr. LAKE. I don't suppose
this convention have a right to make
laws. We have a right under the law

PRINTING

43

Friday]

LAKE-ESTABROOK— WAKELEY

[June 16

creating this body to call for printing,
but it is left for the Secretary- of State
to furnish that printing, and it is
made his duty to furnish what we
demand. Under this law it seems to
me we have no authority on this ques
tion; and for this reason I shall be
compelled to vote against the resolu
tion. Mr . ESTABROOK. I move that
this resolution be referred to the
Committee on Printing and Binding,
Number 27 of the Standing Commit
tees. Mr. MYERS. I move to indefinitely
postpone the consideration of the res
olution. The "yeas" and "nays" were order
ed. The Secretary proceeded to call
the roll.
Mr. ESTABROOK. (when his
name was called said) A word of ex
planation. I vote no on this; hut will
vote to have it referred, as there
seems to be some doubt- about our
duties and authority.
The result was then announced,
yeas 19, nays 26 as follows:

YEAS — 19

Abbott,

Lyon,

Ballard,

Majors,

Gibbs,

Myers,

Grenell,

Neligh ,

Gray,

Parchen,

Hascall,

Price,

Kenaston,

Kirkpatrick,

Stevenson,

Lake,

Shaft,

Ley,

Towle,

NAYS — 26
Boyd, Griggs,
Curtis, Hinman,
Cassell, Kilburn,
Estabrook, Manderson,
Granger, Moore,

McCann,

Speice,

Newsom,

Thomas,

Parker,

Tisdel,

Philpott,

Vifquain,

Reynolds,

Wakeley,

Robinson,

Weaver,

Stewart,

Wilson,

Sprague,

Mr. President

ABSENT OR NOT VOTING— 7

Campbell,

Maxwell,

Eaton,

Scofield,

Mason,

Thummel,

Woolworth,

So the motion was not agreed to.
Mr. WAKELEY. Mr. President, I
believe the question now is on the
reference to the Committee on Print
ing. I move to amend by referring
to Committee on Judiciary. My reas
on is because the question is upon the
law, whether we have the authority
to control this matter.
Mr. ESTABROOK. I accept the
amendment. The motion agreed to.
Adjournment.
Mr. McCANN. I move to adjourn.
Leave of Absence
Mr. WAKELEY. Will the gentle
man give way for a moment, I wish
to ask leave of absence for my col
league, Mr. Boyd, until 2 o'clock on
Monday. Leave granted NEM. CON.
Mr. PARKER. I ask leave of ab
sence for Mr. Sprague until Monday
at 2 o'clock.
Leave granted NEM. CON.
Mr. SPEICE. I ask leave of ab
sence until Tuesday at 2 o'clock.
Leave granted NEM. CON.

44

A D J O URNMENT— JOURNAL

Monday]

FIFIELD— PRICE

[June 19

Adjournment Again.
Mr. ABBOTT. I move to amend
the motion, that we adjourn until
2 o'clock on Monday.
The motion was agreed to.
So the Convention (at eleven o'
clock and thirty minutes) adjourned.

FIFTH DAY.
Monday June 19, 1871.
The Convention met at two o'clock
P. M. and was called to order by the
President. Prayer,
Prayer was offered by the Rev.
Mr. Fifield of Lincoln, as follows:
Our Father, Thanksgiving to thee,
for thy -good providence toward us.
Continue that providence, we pray.
Give wisdom to the Convention for
the labors of the week. Send wis
dom, and give understanding, we be
seech Thee. Amen.
Call of the Roll.
The Secretary called the roll.
Present.
Messrs. Abbott, Ballard, Boyd,
Curtis, Cassell, Campbell, Eaton,
Estabrook, Gibbs, Granger, Grenell,
Gray, Griggs, Hascall, Kenaston, Kil
burn, Kirkpatrick, Lake, Ley, Lyon,
Majors, Mason, Manderson, Moore,
Myers, McCann, Neligh, Newsom,
Parchen, Parker, Price, Stevenson,
Stewart, Sprague, Shaft, Thummel,
Tisdel, Towle, Vifquain, and Weav
er. Absent on Leave.
Messrs. Wakeley, and Woolworth.

Absent.
Messrs. Hinman, Maxwell, Phil
pott, Reynolds, Robinson, Scofield,
Speice, Thomas, and Wilson.
Leave of Absence.
Mr. KIRKPATRICK. Mr. Presi
dent, I ask leave of absence for Mr.
Maxwe'll until 10 o'clock to-morrow
morning. Leave granted NEM. CON.
Mr. McCANN, Mr. President, I ask
leave of absence for Mr. Scofield un
til to-morrow morning.
Leave granted NEM. CON.
Mr. GRIGGS. I ask leave of ab
sence for Mr. Reynolds until to-mor
row morning.
Leave granted NEM. CON.
Mr. ABBOTT. I ask leave of ab
sence for Mr. Speice until to-morrow
morning. Leave granted NEM. CON.
Reading of the Journal.
The journal of the previous meet
ing was read and approved.
Presentation of Petitions.
Mr. PRICE. Mr. President, I have
a petition to present.
Petition read by the Secretary, as
follows. To the Constitutional Convention
of the State of Nebraska. We the Un
dersigned, legal voters of Jefferson
county, Nebraska, respectfully ask
that an article be placed in the Con
stitution of the State, prohibiting
counties from taking stock in rail
roads; or voting aid to railroad en
terprises, by means of taxation upon
the people. Signed by Albert N.
Crawford and 87 other voters of Jef
ferson county.

RESOLUTIONS

45

Monday]

STEWART— CURTIS

[June 19

Mr. PRICE. I move the petition be
referred to Committee on Railroad
Corporations. Mr. KIRKPATRICK. I think it
ought to go to the Committee on
State, County and Municipal Indebt
edness. The motion was not agreed to.
Mr. GRAY. Mr. President, I move
that the petition be referred to the
Committee on State, County and Mu
nicipal Indebtedness.
The motion was agreed to.
Presentation of Resolutions, and Pro
positions to Amend the
Constitution.
Mr. STEWART. I have a resolu
tion. Resolution read by the, Secretary
as follows:
RESOLVED; That the Constitu
tion of the State be so amended, that
the House shall consist of sixty-three
members, and that that of the Senate,
of twenty-one members; and that for
this purpose the State should be di
vided into 63 Representative, and 21
Senatorial districts of contiguous
territory, and as nearly equally pop
ulated as possible; and that one
member should be elected from each
district, and that no elector shall
vote for more than one Senator and
one Representative at the same elec
tion, and that the Legislature at its
next session shall so apportion the
same. Mr. STEWART. I move that the
resolution be referred to the Legis
lative Committee.
The motion was agreed to.
Mr. STEWART. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED; by the Convention

that all executive, legislative and ju
dicial officers shall be elected by the
people, and that the compensation to
be allowed for official service in the
several departments of the Govern
ment shall be fixed by the Constitu
tion and shall not be increased or
diminished by the Legislature.
The PRESIDENT. Gentlemen,
what shall be done with the resolu
tion. Mr. McCANN. Mr. President, I
move it be referred to the Legislative
Committee. Mr. ESTABROOK. I would sug
gest it be referred to the Committee
on Electoral and Representative Re
form. Mr. McCANN. I accept.
Mr. CURTIS. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That no person
shall be eligible to any county, pre
cinct or school office in this State,
who has not resided in the State one
year previous to his election to such
office. And no person shall be eligible to
the office of Representative or Sena
tor in the State Legislature, who has
not been a resident of the State two
years previous to his election to such
office. And that no person shall be eligible
to any State office, who has not been
a resident of the State two years
before his election or appointment to
such office.
And that no person shall be eligi
ble to the office of Governor of this
State, Representative or Senator in
Congress who has not resided in this
State three years previous to his elec
tion to such office.
Mr. STEWART— Mr. President, I
move that the resolution be referred

46

RESOLUTIONS— STATE DEBT

Monday]

TOWLE— KIRKPATRICK— MOORE

[June 19

to the Committee on Electoral and
Representative Reform.
The resolution was so referred,
NEM. CON.
Mr. TOWLE. Mr. President, I
call for the reading of the resolution
I sent up.
The PRESIDENT. The Secretary
will read the resolution sent up by
Mr. Towle.
The Secretary read the resolution
as follows:
RESOLVED BY THIS CONVEN
TION; That the Auditor of State be
requested to furnish a comprehensive
and tabular statement upon the fol
lowing points pertaining to the re
ceipts and expenditures of the State
of Nebraska.
1st. The total amount of assess
ments by counties, of the State of
Nebraska, for the years of 1867, 18-
68, 1869, 1870 and 1871.
2nd. The amount of State General
Fund, Sinking Fund, State School
Fund and University Fund by coun
ties, levied for years 1867, 1868, 1869
and 1870.
3rd. The amount of State General
Fund, Sinking Fund, State School
Fund and University Fund collected
from the different counties for the
,years 1867, 1868, 1869 and 1870.
4th. The amount of orders or war
rants drawn on the said funds in the
years 1867, 1868, 1869, 1870.
5 th. The amount of the appropria
tions of each Legislature of each
fund for the years 1867, 1868, 1869,
1870, 1871 and 1872.
6 th. The amount or percentage of
levy per hundred dollars on the total
assessment of each fund for the
years 1867, 1868, 1869, and 1870.
Mr. TOWLE. Mr. President, I
move the passage of the resolution.
The motion was agreed to.
Mr. KIRKPATRICK. Mr. Presi

dent, I wish to offer a resolution. I
have conferred with the Auditor, and
he is ready to make this statement.
The Secretary read the resolution
of Mr. Kirkpatrick, as follows:
RESOLVED; That the Auditor of
State be requested to furnish to this
Convention without delay, a state
ment showing the entire indebtedness
of the State outstanding and unpaid
at this date, and including all unpaid
and outstanding warrants and bonds
of the Territory of Nebraska.
Mr. KIRKPATRICK. Mr. Presi
dent, I move that the resolution be
adopted. The motion was agreed to.
Mr. MOORE. Mr, President, I
have a resolution which I wish to of
fer. The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on the rights of Suffrage be instruct
ed to inquire into the expediency of
incorporating in the Constitution, a
Section permanently excluding from
the rights of Elective Franchise, all
persons who may be convicted by a
Court of Record of having received,
or who paid1; or offered to pay money
or other valuable things, or promised
any consideration, place or office with
a view of securing or preventing the
election of any candidate for any Fed
eral, or local office.
The PRESIDENT. Gentlemen, the ¦
question is upon the referring of this
resolution. Mr. MOORE. I move that it be
referred to the Committee on Rights
of Suffrage.
The motion was agreed to.
Mr. MANDERSON. Mr. President,
I have a resolution to offer.

RESOLUTIONS— SCHOOL LANDS

47

Mond ay]

MANDERSON-HINMAN -ABBOTT— BOYD

[June 19

The Secretary read the resolution
as follows:
RESOLVED; That the Secretary of
State be requested to furnish for the
use of the Convention fifty two copies
of Colton's late pocket map of Ne
braska. Mr. MANDERSON. I move the
adoption of the resolution.
The motion was agreed to.
Mr. HINMAN. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That each organized
county shall be entitled to at least
one Representative in the lower
House of the State Legislature.
Mr. HINMAN. I move that the
resolution be referred to the Com
mittee on Legislative Apportionment.
The motion was agreed to.
Mr. ABBOTT. Mr. President I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That the State Sup
erintendent of Schools, be and he is
hereby requested to furnish this Con
vention with a statement showing the
whole number of acres of school lands
sold; the average price per acre; the
whole number of acres of school lands
selected under the Homestead and
Pre-emption laws, and the whole
number of acres selected in lieu
thereof, if any, the title to which has
be confirmed to the State.
Mr. ABBOTT. Mr. President, I
move the passage of the resolution.
Mr. MANDERSON. Mr. President,
I would ask for the reading of the
resolution again.
The Secretary reads the resolution
again. Mr. ESTABROOK. I favor the res

olution, but would like to have some
thing added.
Mr. HASCALL. Mr. President, I
would suggest that the statement
show the number of acres sold in the
respective counties and the amount
per acre.
Mr. ABBOTT. I accept that as an
amendment. Mr. ESTABROOK. I should think
that the Committee on Education,
School Funds and Lands, would be
the Committee. I move its reference
to that Committee.
The resolution was so referred.
Mr. BOYD. Mr. President, I wish
to offer a resolution.
The Secretary read the resolution
as follows:
WHEREAS; There are yet unfil
led in the State of Nebraska millions
of acres of virgin prairie, the richest
in the world, waiting only the hand
of the farmer to contribute its abund
ant stores to the support of man,
and WHEREAS ; Owing to the limited
amount of building material and fuel
in some parts of the State, the best
interests of the people demand the
speedy construction of railroads in
order ¦ to supply the early settler
with this great need, and give him a
convenient market for his produce,
and WHEREAS; Donations and sub
scriptions in aid of legitimate im
provements have been productive of
great benefit, but that, in order to
guard against the schemes of reck
less men and grasping corporations
therefore, RESOLVED; That the Committee
on State, County and Municipal In
debtedness, be instructed to inquire
into the expediency of inserting in
the Constitution a clause granting the
right to any county, city, town, pre-

48

RAILROADS— SUNDAY LAWS

Mondayl

WEAVER-MASON- VIFQUAIN— PRICE

[June 19

cinct or other municipality to sub
scribe, donate or loan its credit in
aid of railroads or other works of in
ternal improvements, to an amount
not to exceed, in the aggregate, ten
per centum of its assessed valuation,
PROVIDED; A proposition setting
forth the nature and amount of aid
proposed to be given, shall first be
submitted to the voters of said coun
ty, city, town or precinct or other
municipality, at a general election,
and a majority of the whole number
of votes of said county, city, town,
precinct or other municipality be pol
led in favor thereof.
Mr. MANDERSON. Mr. President,
I move its reference to the Committee
on State, County and Municipal In
debtedness. The motion was agreed to.
Mr. WEAVER. Mr. President, I
desire to offer a resolution.
The Secretary read the ' resolution
as follows:
RESOLVED; That the Secretary
of State be requested to furnish each
member of this Convention with an
abstract showing the population and
valuation of each county, according
tp the most recent census and re
turn. The resolution was adopted NEM.
CON. Mr. MASON. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on Legislature be instructed to in
quire and report as to the expediency
of a Constitutional provision, provid
ing that no county, city, town, town
ship or school district, shall ever
become a subscriber to the capi
tal stock of any private corporation
or make any donation to,, or loan its
credit in aid of any such corporation.
Mr. CAMPBELL. I move the re

ference to the Committee on Municip
al Corporations.
The motion was agreed to.
Mr. VIFQUAIN. Mr. President, I
desire to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That no laws will be
passed abridging the privilege of our
citizens to enjoy themselves as they
please on Sunday or in any way in
terfering with the customs of our for
eign born citizens, upon that day
from 12 o'clock M.
Mr. WILSON. I move the resolu
tion be laid upon the table.
The Convention divided and the
motion was not agreed to.
Mr. NEWSOM. Mr. President, I
move the resolution be referred to
the Committee on Bill of Rights.
The motion agreed to.
Mr. PRICE. Mr. President, I of
fer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on Rights of Suffrage, be instructed
to enquire into the propriety of strik
ing the word "male" from the Consti
tution, wherever it occurs so as to
prevent any citizen from exercising
the rights of suffrage.
Mr. PRICE. I move the adoption
of the resolution.
Resolution referred to Committee
on Bill of Rights. Adjournment.
Mr. BALLARD. I will now make
a motion to adjourn.
The motion to adjourn was agreed
to. So the Convention, (at two o'clock
and fifty-five minutes,,) adjourned.

SCHOOL LANDS

49

Tuesday]

GRAY— HASCALL

[June 20

SIXTH DAY.
Tuesday, June 20, 1871.
Convention called to order by the
President at 10 o'clock A. M.
Prayer.
Prayer was offered by the Rev.
Mr. Fifield of Lincoln; as follows:
Merciful God, our Heavenly Fath
er, may it please Thee to be with us
this day, forget us not in our work,
defend this State and people, may
leaders, magistrates and rulers look
toward Thy throne, may they con
sider Thy holy will; save us, Oh,
Lord, save this commonwealth we
pray Thee. Amen.
The Secretary read the journal of
the last day's proceedings which were
approved. The PRESIDENT. Will the gen
tleman from Cass, (Mr. Kirkpatrick),
take the Chair for a moment?
Mr. KIRKPATRICK took the
Chair. Reports of Standing Committees.
Mr. GRAY. Mr. President, Your
Committee on Education, School
Funds and Lands, beg leave to report
the following.
I make this report at the request
of the Chairman of the Committee.
This report is a substitute to the orig
inal resolution and I will read it.
BE IT RESOLVED; by the Con
stitutional Convention, that the State
Auditor be and is hereby requested to
furnish this Convention with a state
ment showing
1st. The whole amount of com
mon school lands sold.
2nd. The county where the sale
was had.
3rd. The average price per acre
in each county where sold.

4th. The amount of school land
taken under the Homestead and Pre
emption laws.
5th. The amount selected in lieu
thereof, the title of which has been
confirmed to the State, and the des
cription thereof.
6th. The actual, or estimated
amount of common school lands in
the State.
7 th. How much has been raised
annually by direct taxation as State
school tax, for the use of schools, and
what proportion of the same has been
used for the support of schools, and
what for pay of officers or other ex
penditures. 8th. The interest accruing to the
school fund, from school lands sold,
and the income from the lease of
school lands in this State.
Mr. Chairman, the substitute the
Committee offers is substantially the
same as the original resolution re
ferred to them, with the exception
that instead of requesting the State
Superintendent of schools to furnish
this the Auditor by the substitute,
is requested alone to furnish it.
They have added, you will observe,
more in the substitute than was or
iginally embodied in the resolution,
but the report contains the same in
formation. Mr. HASCALL. Mr. President, I
moved the report be received and the
substitute adopted.
The motion agreed to NEM. CON.
Resolutions.
Mr. HASCALL. Mr. President, I
have a resolution I desire to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on Miscellaneous Subjects are hereby

50

STATE CAPITOL— APPEALS

Tuesday]

WAKELEY— ROBINSON— LYON

[June 20

instructed to prepare and report a
Section to be inserted in the Consti
tution, locating and fixing the perma
nent seat of Government of the State
at the City of Lincoln.
Mr. HASCALL. Mr. President, I
move the adoption of the resolution.
The ayes and nays were demanded.
Mr. WAKELEY. I will inquire if,
under the Standing Rules, it is not
necessary that that resolution should
go to some appropriate Committee.
I therefore make it a point of order
that that disposition must be made of
it. Mr. SPRAGUE. It will be. seen by
referring to rule 36, that the gentle
man from Douglas, (Mr. Wakeley),
is correct.
Mr. McCANN. I move that the res
olution be referred to the Committee
on State Institutions and Public
Buildings. Mr. HASCALL. I withdraw the
proposition to adopt, as I see the rule
contemplates it should go to a Com
mittee. The PRESIDENT. The gentleman
from Douglas (Mr. Hascall), with
draws his motion.
The question is on referring to
the Committee on State Institutions
and Public Buildings.
Mr. ESTABROOK. It seems to
me that is hardly the appropriate
Committee. Mr. HASCALL. I think it should
be referred to the Committee on Mis
cellaneous Subjects, for the reason
that it is a matter which would, arise
necessarily under that head.
Mr. McCANN. I accept the amend
ment, Mr. President.
The motion to refer to the Com

mittee on Miscellaneous Subjects,
was agreed to.
Mr. ROBINSON. I have a resolu
tion to offer, Mr. President.
Mr. LAKE. Mr. President, I have
a resolution. The PRESIDENT (pro tern). I
have been requested to ask the mem
bers not to hurry their resolutions
too rapidly.
The Secretary read Mr. Robinson's
resolution as follows.
RESOLVED; Any party to a suit
feeling himself aggrieved by alleged
error or errors of law apparent upon
the records, shall have the right in
all cases, whether civil or criminal,
to prosecute proceedings in the pro
per appellate tribunal to have such al
leged error or errors of law reviewed,
and to receive appropriate relief.
Provided, that in criminal cases
where the State prosecutes such pro
ceedings no new trial shall be had
for any such errors of law if the de
fendant stands charged upon the re
cord with an offence punishable by
imprisonment. Mr. LYON. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
offered by Mr. Lake as follows:
RESOLVED; That the Secretary
of State, Auditor and Treasurer be
and they are hereby requested to re
port to this Convention as soon as
practicable whether any contract, or
contracts were entered into in the
year 1870, on behalf of the State with
any person, or persons, for the State
printing, or whether any such con
tract is now in force,, as provided in
the Act of the Legislature of Nebras
ka, approved June 18, 1867, and if
any there be, that they furnish a copy
or copies thereof forthwith for the
use of this body.
RESOLVED; That copies of the
above resolution be delivered to each
of the officers named in the foregoing

WOMAN SUFFRAGE

51

Tuesday]

WEAVER-STRICKLAND

[June 20

resolution by the Secretary of the
Convention. Mr. LAKE. Mr. President, I move
the adoption of the resolution.
Motion agreed to.
The Secretary read the resolution
offered by Mr. Lyon as follows.
WHEREAS; The ballot, in the
hands of freemen is their shield and
protection therefore
RESOLVED; That no person of
suitable age, moral and intellectual
attainments shall ever be deprived of
its use.
Mr. LYON. I move the resolution
be referred to the Committee on
Rights of Suffrage.
Motion was agreed to.
Mr. WEAVER. I have a resolution
to offer, Mr. President.
The Secretary read the resolution
as follows:
RESOLVED; That an article be
incorporated into the Constitution
guaranteeing to all citizens, who by
their religious faith observe the Sev
enth day of the week, or Saturday,
as a day of worship, the privilege of
transacting all legitimate business
upon the first day of the week —
known as "Sunday."
Mr. WEAVER. Mr. President, I
move it be referred to the Committee
on Bill of Rights.
The motion was agreed to.
Mr. STRICKLAND. Mr. President,
I have a resolution which I wish to
offer, and after its being read by the
Secretary, to ask its reference to the
Committee on Rights of Suffrage.
The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on "Rights of Suffrage" be and they
are hereby instructed to report an ar
ticle to the Constitution for the con
sideration of the Convention confer
ring upon females the right to vote

at all general and special elections in
the State; and also to provide for the
submission of said article to a vote
of the people of the State in the
following manner: that said article,
before it becomes operative be sub
mitted to a vote of the people of the
State at which election, both males
and females shall be entitled to vote
under the same rules and regulations
as are now prescribed by law for male
electors ; the male voter to voce
for or against said article at the same
time and place that the vote is taken
on the adoption or rejection of the
Constitution and there shall also, at
the same time and place, be provided
separate ballot boxes for the recep
tion of the votes of the females, and
if it be found that a majority of both
male and female electors are in favor
of said article, then the same to re
main a part of the Constitution, but
if a majority of either be against said
article, the same to be deemed re
jected and in that case to form no
part of said instrument.
Referred to Committee on Rights
of Suffrage NEM. CON.
Mr. STEWART. I have a reso
lution to offer.
The resolution was read by the
Secretary as follows:
RESOLVED; That Sec. 7 of the
Constitution of this State, under the
head of "Judiciary" shall be so
amended, that no entrance fee shall
be required on the commencement
of suits in the District Courts of this
State. Mr. STEWART. I move it be re
ferred to the Committee on Judiciary.
The motion was agreed to.
Mr. MOORE. Mr. President, I
wish to offer a resolution.
Mr. CURTIS. Mr. President, I
have two resolutions to offer.
Mr. ESTABROOK. Mr. President,
It seems to me that the manner in
which these resolutions are being in-

52

RAILROADS— GRAND JURY

Tuesday]

CURTIS— MOORE— NEWSOM

[June 20

troduced, causes a little confusion.
It seems to me that when a gentle
man rises to address the Speaker,
his resolution should be first consid
ered and disposed of before others
are offered.
The PRESIDENT, (pro tem.) The
Chair has already made that request,
Mr. GRIGGS. I would suggest that
when the Secretary reads the resolu
tion, he give the name of the gentle
man offering it.
Mr. MYERS. Mr. President, every
gentleman should endorse his name
on his resolution before he sends it
to the Secretary's desk.
The PRESIDENT (pro tem). The
Chair has requested that this be done
and in this way much confusion will
be avoided.
The Secretary read the first resolu
tion offered by Mr. Curtis, as follows:
RESOLVED; That the office of
Lieutenant Governor, be created in
this State.
Mr. MANDERSON. I move it be
referred to the Executive Committee.
The motion was agreed to.
The Secretary read the second res
olution offered by Mr. Curtis, as fol
lows: RESOLVED; That the Judiciary
Committee submit a report to this
Convention on the Constitutionality
of abolishing the Grand Jury Sys
tem in this State.
Mr. ESTABROOK. I move the res
olution be referred to the Judiciary
Committee. The motion was agreed fo.
The Secretary read the resolution
offered by Mr. Moore as follows:
WHEREAS; Railroad corpora
tions can only exist by having confer
red upon them the supreme power of
taking private property belonging to

the people, and applying it to their
own benefit and use and
WHEREAS; many just complaints
have from time to time arisen, of un
just and disproportionate charges for
transportation of freight and passen
gers, the often wanton and useless
destruction of private property of in
dividuals along the lines of railways,
and their refusal to make just com
pensation to the owners for the same,
without a long and expensive law
suit, the often destruction of life and
limb of passengers by the careless
ness of officials and agents, therefore
BE IT RESOLVED; That the Com
mittee on Railroad corporations, (No.
8 ) be instructed to provide some safe
guard in the Constitution requesting
the General Assembly upon their first
meeting, to provide by law for the
full and complete protection of the
people from these and other abuses.
Referred to Committee on Rail
road Corporations, NEM. CON.
Mr. ROBINSON. Mr. President, I
offered a resolution which was read
by the Secretary but no action taken
on it, I move it be referred to the
Committee on Judiciary.
The resolution was so referred
NEM. CON.
Mr. Moore. Mr. President, I
move the resolution offered by me
and just read by the Secretary be re
ferred to Committee on Railroad
Corporations (-No. 8).
The resolution was so referred
NEM. CON.
Mr. NEWSOM. Mr. President, I
have a resolution I desire to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the Committee
on Revenue be instructed to inquire
into and report as to the expediency
of a Constitutional provision govern
ing the Legislature in levying the
needful tax for revenue by valuation
so that every person and corporation

TAXATION— COUNTY SEATS

53

Tuesday]

THUMMEL— KENASTON— CAMPBELL

[June 20

shall pay a tax in proportion to the
value of his or her property, such
value to be ascertained by some per
son or persons to be elected or ap
pointed in such manner as the Gener
al Assembly shall direct, and said tax
shall not exceed  per cent of
said valuation, over and above the
amount of revenue necessary for the
payment of the interest now provided
by law on the State and county in
debtedness and the sinking fund.
Mr. NEWSOM. Mr. President, I
move the resolution be referred to
the Committee on Revenue and Fi
nance. The motion was agreed to.
Mr. THUMMEL. Mr. President, I
have a resolution I desire to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the State Au
ditor be requested to furnish this Con
vention a statement showing the va
rious amounts that have been appro
priated for and expended on the Cap
itol building and grounds.
Mr. THUMMEL. Mr. President, I
move the adoption of the resolution.
Mr. ESTABROOK. This is amen
able to the same objection raised on
the other resblution that it must first
be referred to an appropriate Com
mittee. Mr. THUMMEL. This is not a pro
position to amend the Constitution
but simply an inquiry for informa
tion. The motion to adopt was agreed to.
Mr. KENASTON. Mr. President,
I wish to call attention to the resolu
tion offered by me and ask that it
he read.
The Secretary read the resolution
as follows:
RESOLVED; That no county seat
shall be removed until the point to
which it is proposed to be removed

shall be fixed in pursuance of law
and two thirds of the voters of the
county, to be ascertained in such
manner as shall be provided by gen
eral law, shall have voted in favor
of its removal to such point; and no
person shall vote on such question
who has not resided in the county
six months, and in ttje election pre
cinct 90 days next preceding' such
election. The question of the removal of a
county seat shall not be oftener sub
mitted than once in five years to a
vote of the people. But when an at
tempt is made to remove a county
seat to a point nearer to the center
of a county then a majority vote only
shall be necessary.
Mr. McCANN. Mr. President, I
move the resolution be referred to
the Committee on Counties.
The motion agreed to.
Mr. CAMPBELL. Mr. President, I
offer a resolution.
The Secretary read the resolution
as follows:
WHEREAS; The ninety thousand
acres of land donated by Congress to
the State of Nebraska for an agricul
tural College has been forfeited to
the State on account of the nonpay
ment of the land office fees, therefore,
RESOLVED; That the Judiciary
Committee be instructed to investi
gate the propriety of inserting in the
Constitution an article requiring the
Attorney General to commence suit
for the recovery of the land so forfeit
ed. Mr. CAMPBELL. Mr. President, I
offer this resolution for the purpose
of getting information for the Con
vention on this matter. If I have
been correctly informed this land was
selected in 1868, and in 1868 notice
was given, if the land office fee was
not paid, the land would be forfeited,
and it was ordered that the amount,
$600, should be paid out of the gen-

54

AGRICULTURAL COLLEGE LANDS

Tuesday]

HASCALL— MCCANN

[June 20-

eral fund. But there was no money
at that time in the general fund and
consequently the land office fee was
not paid.
This fact remained a secret until
after the close of the last legislature
and after that it was made known,
but secretly. The result was that a
few members of the Legislature and
persons connected with the land office
who were permitted to know of the
forfeiture entered up that land or
the most of it. I would like to have
this matter investigated and there
fore move the adoption of the resolu
tion. Mr. HASCALL. Mr. President, for
fear some misapprehension may be
had on this matter I would say the
hands of the present Legislature is
clear of having anything to do with
this land, it belongs to the Legisla
ture immediately preceding this.
The loss to the State of ninety thous
and acres of land should be charged
where it properly belongs with those
who are guilty, which is certainly the
Legislature previous to the one which
has just adjourned.
Mr. ' McCANN. I believe we can
obtain the desired information from
the gentleman from Douglas (Mr.
Hascall) and I would like to ask him
if this land was forfeited by the non
payment of the land office fees?
Mr. HASCALL. I will say that I
have no official information from the
land office on that subject, but I am
reliably informed that the land has
been forfeited and has been entered
by parties who knew when the forfeit
was made. I think the proper way
to investigate this matter is to get
the names of these parties so entering

and the amount of the land lost, and
request the committee to investigate
this matter by way of inquiry.
Mr. McCANN. Mr. President, If
the motion has not already been
made, I move that this resolution be
referred to the Committee on Judi
ciary and Judicial Districts.
Mr. ESTABROOK. Mr. President,
It seems as though we never shall
be done of hearing of new —
Mr. STEWART. Mr. President, I
rise to a point of order. I believe
these Resolutions should be referred
to Committees without debate.
The PRESIDENT. (Pro Tempore,)
What rule does the gentleman refer
to? Mr. STEWART. Rule No. 36.
Mr. MYERS. I move that this reso
lution be referred to a Special Com
mittee. The PRESIDENT. (Pro Tempore,)
The question of order will be settled
first. Mr. ESTABROOK. If this is a
proposition to amend the Constitu
tion it goes without debate. I would
enquire whether it is a resolution
that contemplates any amendment.
The PRESIDENT. (Pro Tempore,)
It is asking investigation by a cer
tain committee.
Mr. CAMPBELL. The resolution
provides that the Judicial Committee
be instructed to enquire into this
matter. I move its reference to that
Committee. The PRESIDENT. (Pro Tempore',)
That motion has been made and
stated. Mr. ESTABROOK. Mr. President,
That committee has very much re
ferred to it already. It is expected to

AID TO CORPORATION

55

Tuesday]

HASCALL— MASON— GRAY

[June 20

give advice, its opinion in negard to
purely local questions that may arise
here. This is a subject that demands
investigation as to facts, not law,
facts. It seems that here is another
big steal; I have never' before heard
of this larceny if it be true. We had
it as a matter of casual debate, as to
what had become of our Agricultural
College Lands, in our School Com
mittee. I have never seen any report
of them, it is now opening a new vein,
a new lode; I would like to have it
thoroughly investigated or probed; I
want it to go to some Committee of
enquiry, that the facts in this case
may be fully ascertained and expos
ed; this is another source of rotten
ness; I do not know who are the par
ties at fault, I think a special Com
mittee should be appointed. Messrs.
Hascall, Thomas and Dr. Campbell
would do they seem to be apprised
of these performances. It is imma
terial who the special Committee
are so that the matter be fully investi
gated. Mr. McCANN. Mr. President, I
withdraw my motion to refer it to
the Judicial Committee and move it
be referred to a special Committee
of three.
Mr. HASCALL. Mr. President, I
prefer not to be on that Committee
for the reason that if the Committee
should place the responsibility upon
the prior Legislature it would place
myself in a wrong attitude. I prefer
that disinterested parties.
The PRESIDENT (pro tem.) It
may not be ordered.
Mr. HASCALL. I understood the
motion had been made and seconded
and stated by the Chair, but if the

gentleman withdraws it, I believe
that leaves us without any motion.
The PRESIDENT (pro tem). The
motion was to refer it to the Judic
iary Committee, that was withdrawn,
another motion was to refer it to a
special Committee of three.
Mr. MASON. Mr. President, I
move to refer the resolution to the
Committee on Education, School
Funds and Lands, the Standing Com
mittee of which Mr. Estabrook is
Chairman. The PRESIDENT (pro tem.) That
would seem to be the proper refer
ence; the Chair will not undertake
to decide. I believe that a motion to
refer to a Standing Committee takes
precedence. Mr. MASON. The motion to refer
to a Standing Committee takes pre
cedence of a special committee.
The motion was agreed to.
Mr. GRAY. Mr. President, I have
a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the following
be incorporated into the new Consti
tution as one of the Articles thereof
and which shall be submitted in such
manner as that it can be voted upon
separately and independent of the
other articles of the new Constitu
tion to wit: Article.
Sec— No County, City, Town, Town
ship, Precinct or other Municipality
shall ever become subscribers to the
capital stock of any railroad or pri
vate corporation, or make donation
to, or loan its credit in aid of such
corporation, provided that the adop
tion or rejection of this article shall
not affect in any way the question
of the legality or illegality of the do-

56

TAXES— RAILROAD RATES

Tuesday]

STEVENSON-KILBURN -PARKER

[June 20

nations already made to railroad or
private corporations.
Mr. GRAY. Mr. President, I move
it reference to the Committee on
State, County and Municipal Indebt
edness. The motion was agreed to.
Mr. STEVENSON. I have a resolu
tion to offer.
The Secretary read the resolution
as follows:
RESOLVED; That on the sale of
land for delinquent taxes there shall
be allowed a redemption at any time
within four years from the date of
sale. That no greater sum than twenty
per cent per annum as interest or pen
alty shall be charged on the sum for
which lands shall be sold.
Mr. STEVENSON. Mr. President,
I move it be referred to the Com
mittee on Revenue and Finance.
The motion was agreed to NEM.
CON. Mr. KILBURN. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows.
RESOLVED; That no county seat
shall be removed until the point to
which it is proposed t6 be removed
shall be fixed in pursuance of law
and three fifths of the voters of the
county, to be ascertained in such
manner as shall be provided by the
general law, shall have voted in favor
of its removal to such point, and no
person shall vote on such question
who is not a legal voter for State
officers and members of the Senate
and House of Representatives.
The question of the removal of a
county seat shall not be oftener sub
mitted to a vote of the people than
once in four years, and at no time
except at the general election of the
State officers and members of the
Legislature. But when an attempt is I
made to remove a county seat to a have a resolution.

point not less than ten miles nearer
to the center of a county, then a
majority vote only shall be necessary.
Mr. KILBURN. I move it be re
ferred to the Committee on Counties.
The motion was agreed to NEM.
CON. Mr. PARKER. Mr. President, I
have a resolution.
Resolution read by the Secretary
as follows:
RESOLVED; That in all cases
wherein the question submitted is
for aid to private corporations and
where said aid is to be obtained by
the levy of a tax, no voter shall be
allowed to vote for or against the
proposition so submitted unless he be
a taxpayer within the district where
the tax is so to be levied, and that
an Article or Section thereof be in
serted in the fundamental law of this
State. Mr. PHILPOTT. I move that the
resolution be referred to the Com
mittee on Miscellaneous Corpora
tions. The motion was agreed to.
Mr. BALLARD. Mr. President, I
have a resolution.
Resolution read by Secretary as
follows: RESOLVED; That there ought to
be a provision in the Constitution
reserving to the Legislature of the
State the right and authority to regu
late the rate of tariff on freight and
passengers over all Railroads which
have received, or shall hereafter re
ceive State, County, Precinct, or Mu
nicipal aid in their construction.
Mr. BALLARD. I move that the
resolution be referred to the Com
mittee on Railroad Corporations.
The motion was agreed to NEM.
CON. Mr. STEVENSON. Mr. President, I

BOARD OF IMMIGRATION

57

Tuesday]

STEVENSON— NELIGH-SHAFF

[June 20

Resolution read by the Secretary
as follows:
WHEREAS; The Board of Immi
gration caused to be distributed cer
tain pamphlets purporting to be a
description of the State of Nebraska,
and issued by authority of said Board
to the members of the Constitutional
Convention of Nebraska, therefore be
it RESOLVED; That the President
of this Convention be authorized to
request the members thereof not to
distribute said pamphlets abroad be
cause of their not being a true rep
resentation of the State at large.
Mr. ABBOTT. I move the adop
tion of the resolution.
Mr. NELIGH. Mr. President, I am
certainly in favor of the adoption of
the resolution for several reasons.
I feel a description of Nebraska ought
to contain the truth relative to the
State. I am in favor as much as
any one, for the advancement of the
interests of Nebraska, and I believe
I have done my part so far to accom
plish that object. I have watched
these boards of immigration from the
heginning. I am from the northern
portion of the State, and I have never
yet known a citizen influenced by the
Board of Immigration. The Board
' made this pamphlet as describing sev
eral rivers, and names the streams
south of the Platte, remarking that
they are lined with an abundance of
timber; enough for future generat
ions. It then describes the northern
portion, and of its streams, and says
the Platte, L'Eauq-ui Court, Loup
Fork and several other streams are
lined only with a limited amount of
timber. It names all completed rail
roads south of the Platte, and leaves
seventy-six miles of completed rail

road north of the Platte out. If
the Board of Immigration is to do
justice to ^he State and its own duty
it will publish to the world all the
railroads. It would take but little
more paper to name the railroads
completed. Then it names the pro
posed railroads, including all south
of the Platte, but mentions not a
single one north of that river. I have
nothing to say against the publication
of the interests of the South Platte,
but I believe the entire State should
be represented. I hope the resolu
tion will be adopted, and the Board of
Immigration made to remember in
all future publications, to publish the
State entire.
The PRESIDENT. ' The question
is upon the adoption of the resolu
tion. The motion was agreed to NEM.
CON. Mr. ABBOTT. Mr. President, I
move that a copy of this resolution
be furnished each member of the
State Board of Immigration.
The motion agreed to.
Mr. SHAFF. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows.
RESOLVED: That there be incor
porated into the new Constitution a
provision making it the duty of the
Legislature of this State to cause
publication of the laws passed at any
session thereof, within one month
after the adjournment of such session
and allowing three months after the
adjournment of such session before
such laws shall take effect.
Mr. ABBOTT. I move its refer
ence to the Committee on Legislature.
Motion agreed to.

58

RAILROAD LANDS— SCHOOL FUNDS

Tuesday]

GRIGGS - VIFQU AIN-ES TABROOK

[June 20-

Mr. GRIGGS. Mr. President, I
have a resolution I wish to introduce.
The Secretary read the resolution
as follows:
RESOLVED; That the General As
sembly shall apportion the State into
Representative and Senatorial Dis
tricts every two years by dividing the
whole number, of registered voters
in the State by the number of Sen
ators and Representatives in the Gen
eral Assembly as provided by this
Constitution), such apportionment to
be made upon the whole number of
voters registered next prior to such
apportionment. Mr. GRIGGS. Mr. President, I
move that the resolution be referred
to the Committee on Legislative Ap
portionment. Motion' agreed to.
Mr. STEVENSON. Mr. President,
I have a resolution I desire to offer.
The Secretary read the resolution
as follows:
RESOLVED; That the Gover
nor shall have no power to grant re
prieves, commutations and pardons
for the offense of treason, or in cases
of impeachment after .conviction, or
when the crime of murder has been
proven according to the law and fol
lowed by conviction and sentence, un
less upon petition signed by three
fourths of the jury before whom the
case was tried, the presiding Judge
and the District Attorney.
Mr. STEVENSON. Mr. President,
I move the resolution be referred to
Committee on Executive.
Motion agreed to.
Mr. VIFQUAIN. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
Any railroad corporation created
or hereafter to be created, and which
has or will secure land grants from
the Federal Government will be tax

ed upon the lands so received, and
the assessor in the different precincts
where such lands may be situated,
will assess said lands at the price said
lands are offered for sale by said
railroad companies; and in case the
appraised value of said lands is be
low the assessed appraised value of
real estate in the different precincts
where such lands may be situated,
said railroad land will be assessed
at the same price of other real estate.
Mr. CURTIS. I move its reference
to Committee on Revenue and Fi
nance. Motion agreed to.
Mr. PHILPOTT. Mr. President, I
wish to offer a resolution.,
The Secretary read the resolution
as follows:
RESOLVED; That a Section be
inserted, under an appropriate article
of the State's Constitution, that the
State of Nebraska shall never he
made defendant in any court of law
or equity.
Mr. PHILPOTT. I move its re
ference to the Committee on Judic
iary. Motion agreed to.
Mr. ESTABROOK. Mr. President,
I wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That the Judiciary
Committee be requested to examine
that portion of the article in the Con
stitution of Nebraska entitled, "Edu
cation," which reads as follows:
"The principal of all funds or other
disposition of lands, or other proper
ty granted or entrusted to the State
for educational and religious purpos
es, shall forever be preserved invio
late and undiminished"; and report
to this Convention whether it is the
the duty of the State to restore to
the school fund all losses caused by
improvident or illegal loans or in
vestments or otherwise, so that such

LOTTERIES— MINORITY REPRESENTATION

59

Tuesday]

McCANN— PHILPOTT— ROBINSON

[June 20

fund shall be preserved undiminish
ed. Mr. ESTABROOK. I move its
adoption. Motion agreed to.
Mr. McCANN. Mr. President, I
wish to submit a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That the Secretary
of State be, and he is hereby request
ed to have printed for the use of the
members of this Convention the ac
companying list of authorities and ad
dresses for and against universal
suffrage. Mr. McCANN. Mr. President, the
documents in question consist of an
address delivered by Mrs. Elizabeth
Cady Stanton before the Judicial
Committees of the Legislature of
New York in 1867, and the majority
report of Judge Bingham, and the
minority report of Mr. Butler and Mr.
Loughridge, of the Judiciary Commit
tee at Washington. There is but one
copy of these reports to be had, and
I would like to have the reports, or
such portions as may be thought nec
essary, published for the benefit of
the members.
Mr. CAMPBELL. Mr. President, I
think it is foolish to waste money
printing matter on Woman Suffrage.
There is only $15,000 appropriated
for printing purposes, and I would
like to know what it would cost to
have it done before I would vote for
the ordering of this printing.
Mr. McCANN. I am not able to
say what the cost would be. I move
Mr. President, to refer it to the Com
mittee on Suffrage, they can merely
collate such as they think would be
beneficial to the Convention, and eith

er print all, or no part of it, as they
see fit.
The motion was agreed to.
Mr. PHILPOTT. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED; That a Section be
inserted in an appropriate Article of
the Constitution, that the General As
sembly shall have no power to auth
orize Lotteries or Gift enterprises for
any purpose, and shall pass laws to
prohibit the sale of lottery or gift
enterprise tickets in this State.
Mr. PHILPOTT. Mr. President, I
move it be referred to the Committee
on Miscellaneous Subjc-ts.
Referred NEM. CON.
Mr. ROBINSON. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
WHEREAS; Experience shows
that the existence of a strong and ac
tive minority, tends to keep the ad
ministration of Government free
from corruption therefore
RESOLVED ; That the Committee
numbered "Four" be instructed to
prepare for the consideration of this
Convention, a Section providing for
minority representation, analogous to
that in force in the State of Illinois.
Mr. CURTIS. Mr. President, I
move it be referred to the Committee
on Electoral and Representative Re
form (No. 4.)
So referred NEM. CON.
Adjournment.
Mr. HASCALL. Mr. President, In
order to give members a chance
to prepare more resolutions, I move
that we take a recess until two
o'clock.

60

POPULATION— ASSESSED VALUE

Wednesday]

SECRETARY OF STATE

[June 21

The PRESIDENT (pro tem). Will
the gentleman withdraw his motion
for the present. The President wish
es to announce some Committees.
Mr. HASCALL. I will do so, cer
tainly. The PRESIDENT. (taking the
Chair) The Committee on State
Lands (No. 18) is composed of three
gentlemen, while the rules require it
should be composed of seven appoint
ed. I will therefore add to that Com
mittee Messrs. Thomas, Vifquain,
Estabrook and Lyon.
Mr. WAKELEY. It seems to me
that the most important work for this
Convention is Committee work, and
therefore move that we now adjourn
until to-morrow at 10 o'clock.
The motion was agreed to.
So the Convention (at Eleven
o'clock and forty minutes) adjourn
ed. ,

SEVENTH DAY.
Wednesday, June 21, 1871
The Convention met at ten o'clock
a. m. and was called to order by the
President; Prayer.
Prayer was offered by Rev. F. M.
Dimick of Omaha, as follows:
Almighty God, our Heavenly Fath
er; Thou who rulest in the heavens
and upon the earth and under whose
direction all governments and nation
alities exist, and under whom we
have our national existence, we lift
up our hearts in thanksgiving for our
preservation. We thank Thee for our
nation's prosperity, and pray that
Thy blessings may rest upon us at
this time. We thank Thee that thou
hast planted us here between the
two great oceans and pray that Thou

wilt make this nation and people
an example of justice and right to
all the earth. We pray thy blessing
upon those assembled here at this
time that they may lay such a found
ation for the future growth of this
state as shall result in the good of
all and Thy glory. We pray that
Thou wilt preside over all these de
liberations and direct to such con
clusions as shall bring happiness in
all our future days, we ask it for
Christ's sake. Amen.
The Secretary called the roll.
Reading of the Journal.
The Journal of the last days pro
ceedings was read and approved.
The Secretary read a communica
tion from the Secretary of State as
follows: Secretary's Department.
Lincoln, Nebraska,, June 19, 1871,
To the Honorable President of the
Constitutional Convention:
Dear Sir — In answer to a resolu
tion of your Honorable body adopted
this day, asking for information in
regard to the Population and Assess
ed Value of all property of the sev
eral counties of this State, I have the
honor to submit the following report:
Adams  No return
Buffalo  $ 472,386
Burt  1,128,723
Butler  972,765
Cass  3,704,574
Cedar  613,974
Cheyenne  920,394
Colfax  739,419
Cuming  1,211,980
Dakota  653,384
Dixon  303,863
Dodge  1,880,439
Douglas  10,470,161
Gage  1,337,621
Hall  697,171
Hamilton  607,234
Jefferson  1,718,099
Johnson  1,022,193
Lancaster  3,184,036
L'Eau qui Court  219,328
Lincoln  1,064,894

POPULATION— ASSESSED VALUE

61

Wednesday]

ESTABROOK

[June 21

Madison  208,960
Merrick  1,127,133
Nemaha  3,045,785
Otoe  5,000,538
Pawnee  1,049,218
Platte  1,587,240
Pierce  234,890
Polk  464,265
Richardson  2,596,975
Sarpy  1,596,210
Saunders  1,289,689
Saline  1,046,380
Stanton  637,926
Seward  338,551
Washington  1,855,706
Wayne  328,861
Webster  8,999
York  185,694
Aggregate  $55,549,868
Adams  35
Buffalo  194
Burt  2,846
Butler  1,292
Cass  8,116

Cedar  .' . . . 1,033
Cheyenne  365
Colfax  1,426
Clay!  54
Cuming 
Dawson  173
Dakota  2,040
Dixon  1,349
Dodge  4,205
Douglas  19,997
Fillmore  238
Gage  3,396
Hall  1,940
Hamilton  130
Jefferson  2,441
Johnson  3,426
Kearney  93
Lancaster  7,074
L'Eau qui Court  234
Lincoln  1,352
Madison  1,136
Merrick  557
Nemaha...  7,,759
Nuckolls  8
Otoe  12,345
Pawnee  4,180
Platte  1.905
Polk  136
Richardson  9,739
Saline  3,147
Saunders  4,572

Sarpy  2,919,
Seward  2,958
Stanton  641
Washington  4,459
York  604
Total in organized counties. 120,372
In unorganized territory west of
Madison  184
Total (official) except Cuming
county  120,556
Cuming county estimated  2,500
Total population of state. . . .123,056
Report of Standing Committees
Mr. ESTABROOK. Mr. President.
I have a report from the Committee
on Education, School Funds and
Lands. The Secretary read the report as
follows: The Committee on Education,
School Funds and Lands, to whom
was referred the resolution relative
to the location of Agricultural lands,
have had the same under consider
ation and have instructed me to re
port; That during the time since the ad
journment yesterday until the present
hour the Governor's office has. been
closed and locked, so that the re
cords therein relating to this subject
have not been accessible. But they
have learned from sources entitled to
belief that 90,000 acres of this land,
the amount to which the State is en
titled, have been selected within the
past year by commissioners duly ap
pointed by the Governor under and
by virtue of an act of the Legislature
giving him the authority, that such
selections were all made in the Da-
cotah Land District and were duly re
ported to the land office therein, and
marked upon the plat. That the entry
however, and the investiture of the
title in the State were not deemed
complete until fees to the amount of
$8.00 for each section were paid by
the State to the land offices, that the
Legislature having adjourned with
out making an appropriation for
these fees these lands were declared

62

AGRICULTURAL COLLEGE LANDS

Wednesday]

ABBOTT— HASCALL

[June 21

by such officers, restored to their
former condition, and subject to
private entry. That several individ
uals tempted by the consideration of
the increased value of these lands
while so with-held from market, have
entered a large portion of them with
in a few weeks, and since the ad
journment of the last Legislature.
Your Committee have examined
the law applicable to this case and
find the land officers are not entitled
to fee for these entries and that so
far as we are able to, discover upon
the brief and cursory examination
we have been able to give the sub
ject the Stalte has done all re
quired of it to secure to itself the
title to these lands. We take the
liberty to quote the law of congress
concerning fees applicable to this
case, to wit: "That from and after
the passage of this act, in the loca
tion of lands by States and corpora
tions under grants from Congress for
railroads and other purposes, (except
for Agricultural Colleges,) the reg
isters and receivers of the land offices
of the several States and Territories
in the districts where such lands may
be located, for their services therein,
shall be entitled to receive a fee of
one dollar for each final location of
one hundred and sixty acres, to be
paid by the State or corporation mak
ing such location, the same to be
accounted for in the same manner as
fees and commissions on warrants
and pre-emption locations.with lim
itations as to maximums of salary
prescribed by existing laws, in ac
cordance with such instructions as
shall be given by the commissioners
of the general land office." (This
act was approved July 1st, 1864.)
We would recommend the passage
of the following resolution:
RESOLVED. That the Secretary
of the Interior be requested to cancell
the private entries of all lands hereto
fore selected by the State of Nebraska
as Agricultural College Lands, and to
advise this Convention as to the con
dition of those lands and the farther

steps necessary to be taken to secure
the title thereto to the State of Ne
braska. RESOLVED. That the Register
and receiver of the Dacotah land dis
trict be advised of the law relating to
fees applicable to this case, and re
quested to allow the private entry
of no more of the Agricultural lands
of this State.
RESOLVED. That the Secretary
of this Convention be directed to
send immediately a copy of this report
to the Secretary of the Interior, and
also the same to the Register and
Receiver of the Land Office of the
Dacotah Land District. E. ESTABROOK, Chairman.
Mr. ABBOTT. Mr. President.
Those entries have Deen made this
month and the report will not go to
the land office until the last of the
present month or first of next month.
Would it not be better that this go
to the Commissioner General of the
Land Office?
Mr. HASCALL. I am well satisfied
the Committee are mistaken on this
point. There is information that
these lands were entered prior to
the adjournment of the session of
the Legislature, because at the ad
journed session the attention of mem
bers was called to the fact that al
ready a large portion of the lands
had been entered by certain persons,
and particularly by a member of
the prior Legislature.
Mr. WOOLWORTH. I would en
quire of my colleague (Mr. Has
call) what member of the Legisla
ture he refers to?
Mr. HASCALL. I would say that
my information comes from private
parties, but not having the proof that
would justify making the charge di-

AGRICULTURAL COLLEGE LANDS

63

Wednesday]

HASCALL— WOOL WORTH-ABBOTT

[June 21

rect. My information on that sub
ject is as well entitled to credit as
the information the Committee have.
Both are hearsay, and consequently,
unless insisted upon, I would withold
the name.
Mr. WOOLWORTH. There is
no impropriety in mentioning the
name. A general charge goes out
that some member of that body has
done this thing.
Mr. McCANN. Mr. President. I
move to amend the report by sub
stituting the "Commissioner of the
General Land Office," instead of
"Secretary of the Interior".
Mr. HASCALL. By leave of the
Convention, I will make one remark
further. The reason I did not
choose to mention the name is the
fact that the name can be known
at the Dakota Land Office, as the
names will probably be all published
when they are received at that office,
and I prefer it should come from
there instead of myself.
Mr. WOOLWORTH. The explana
tion is satisfactory.
The PRESIDENT. The question
is upon the amendment.
Mr. McCANN. The Secretary of
the Interior- being the head of that
department it will, of course, be
speedily referred to the Commis
sioner of the General Land Office.
I therefore withdraw my amend
ment. Mr. WOOLWORTH. I shall re
new the amendment of the gentle
man from Otoe (Mr. McCann,) for
the reason that this communication
should be addressed to the Secretary
of the Interior. It will take some
time for the Secretary to get a letter

from one office to another, and why
not send it to the office from which
this action is required.
Mr. McCANN. I think the ob
ject will be sooner attained by ad
opting the resolution as it stands.
This communication, if received by
the Commissioner will be referred to
the Secretary' of the Interior. I hope
we will adopt the resolution.
Mr. ABBOTT. I would state that
if this communication goes to the
Secretary of the Interior it will be
on his desk until brought to his at
tention through the General Land
Office. Send it to the land office and
if the report is not satisfactory then
it will go up to the Secretary of the
Interior. Mr. GRIGGS. The gentleman
from Hall (Mr. Abbott) is correct, as
far as my experience goes. In our
land office I know that letters ad
dressed to the Secretary of the In
terior lie for ten or fifteen days' and
I believe it should first go to the com
missioner of the Land Office that it
may receive more immediate action.
Mr. ESTABROOK. It is a matter
entirely immaterial. I am aware
there is considerable circular motion
to be gone through to get over all
these departments, and we would not
have made the report until we had
examined the records of the Execu
tive, for there, I presume, will be
found the appointment of the com
missioners to locate these lands, and
this report would not have been sub
mitted only we deemed it necessary
to make the utmost expedition to
get this matter before the proper au
thorities; and if it gets there quicker
by going to the Commissioner of the

64

AGRICULTURAL COLLEGE LANDS

Wednesday]

SPRAGUE— ROBINSON-MYERS

[June 21

General Land Office, so much the
better. It goes to the Secretary of
the Interior as the head, and pertains
to the land office bureau. I do not
think it makes much odds either
way; but, if required, I will consent
to any amendment.
Mr. ABBOTT. If the gentleman
has had much experience in land of
fice matters he will find it does make
a good deal of difference. The Sec
retary of the Interior will take no
notice of the thing until the Commis
sioner of the General Land Office has
made a report. I speak from actual
knowledge. Mr. SPRAGUE. As this seems to
be a matter of considerable impor
tance to the State, and entitled to
belief, I think the Secretary should
furnish a copy to both the Secretary
of the Interior and the Commissioner
and the object thus be obtained.
Mr. WOOLWORTH. I have no ob
jection. It accomplishes the object I
have in view. I withdraw my amend
ment. The PRESIDENT. My experience
is that it takes from thirty to forty
days for a communication to get from
the Secretary of the Interior to the
General Land Office.
Mr. ROBINSON. The facts as
stated by the gentleman from Doug
las (Mr. Hascall) are true. There
were also entries made prior to the
meeting of the last Legislature.
' There will have to be another com
munication sent, and I move the re
port be amended so as to strike out
that portion of it, and let it read,
"that entries were made subsequent
to the selection of these lands," so
that it will cover all possible cases.

The law applies to entries made sub
sequent to the selection.
Mr. ESTABROOK. I think the ob
ject will be accomplished if we send
one to each department. It states
that some entries were made subse
quent to the last Legislature.
The PRESIDENT. Read that part
of it, Mr. Secretary.
The Secretary reads "that during
the time since the adjournment — "
Mr. HASCALL. Mr. President.
I would suggest that the report it
self, is not subject to amendment.
If the Committee who report these
facts are willing to correct the facts,
they will be corrected of course.
The PRESIDENT. The Chair will
entertain the resolution of any gen
tleman to correct, whether it is par
liamentary or not. The Secretary
reads " that several individuals,
tempted by the consideration of the
increased value of these lands, while
so with-held from the market, have
entered a large portion of them with
in a few weeks, and since the ad
journment of the last legislature."
Mr. MYERS. I hardly think > it
worth while to waste so much time in
the consideration of the Report, I
have full confidence in the ability
of that Committee in presenting a
true state of facts to this Convention,
the facts presented ought to be taken
because they are our agents the facts
cannot be amended, they can be dis-
sussed. This Convention has certain
duties to perform, and it is not a
part of our duty to hunt up or punish
parties who may have been derilect
in the performance of their duties
the Governor of the State of Ne
braska is the custodia* of the lands

LEGISLATIVE DISTRICTS

65

Wednesday]

WAKELEY— GRIGGS— SCOFIELD

[June 21

of the State, and if these trespassers
and plotters have seized upon the
legacy of the General Government to
us there are legal measures to be
adopted to oust them at once from
their possession of these lands.
The PRESIDENT. Gentlemen,
the question is upon the amendment
of the gentleman from Saunders (Mr.
Sprague) that a copy each be sent
to the Commissioner of the Interior
and the General Land Office.
The amendment was agreed to.
Mr. ESTABROOK. I would like
to inquire whether the report was
adopted or is it the amendment that
is adopted.
The PRESIDENT. The motion
now is upon the adoption of the re
port as amended.
Motion agreed to.
Resolutions.
Mr. WAKELEY. Mr. President.
I present a resolution and ask that it
be referred to the Committee on
Electoral and Representative Re
form. The Secretary read the resolution
as follows: Article.
/
RESOLVED. That there be insert
ed in the Legislative Article, the fol
lowing provisions:
Sec The state shall be divided in
to nineteen Senatorial Districts,
which shall be composed respectively
of contiguous territory and shall be
as compact, and as nearly equal in
population, as practicable.
Sec. The Senate shall consist of
Twenty-four Senators, five of whom
shall be chosen from the State at
large, and one from each Senatorial
District. Sec. The House of Representatives
shall consist of Sixty-six members,

nine of whom shall be chosen from
the State at large, and 3 from each
Senatorial District.
Sec. At any election of Senators
from the State at large, or of Repre
sentatives, each qualified voter may
cast as many votes for one candidate
for either office, as there are persons
to be elected to that office by the
same constituency, or may distribute
the same or equal parts thereof, at
his option, among the candidates, not
exceeding the number to be elected.
The candidates highest in votes shall
be declared elected, or, if an equal
vote for two or more having the re
quisite number shall require it the
choice between them shall be made
by lot.
Referred NEM. CON.
Mr. GRIGGS. Mr. President, I of
fer a resolution and ask that it be re
ferred to the Committee on Legisla
tive. The Secretary read the resolution
as follows:
RESOLVED. That a clause be in
serted in the Constitution prohibiting
any local or special Legislation.
Referred NEM. CON.
Mr. SCOFIELD. Mr. President,
I offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Governor of
the State be requested to furnish for
the use of this Convention, a full
statement of all the public lands,
other than School Lands, which have
been donated to the State of Nebras
ka by the United States, when such
lands were selected, and for what
purpose, and under what law, and
the disposition of the same.
Mr. CAMPBELL. Mr. President.
I would like to add to that "and
how much of the State land has been
forfeited".
Mr. WOOLWORTH. Mr. Presi-

66

SECTARIAN SCHOOLS— RAILROAD LANDS

Wednesday]

HASCALL— MASON— WILSON— VIFQUAIN

[June 21

¦dent. I would like to know how
these lands have been forfeited, for
it is suggested that some of them
have been forfeited. I would like to
have the amendment of the gentle
man from Otoe (Mr. Campbell)
specify, so that we can understand
what we are voting for.
Mr. HASCALL. I wish to say that
the selection of our state lands is
one thing and the confirmation an
other, now the fact is that lands have
been selected, which could not be con
firmed to the state, for the reason
that the land is within the railroad
limits, where the land is worth $2.50
per acre; now if lands selected, have
not been confirmed it stands in the
same position as before the selection
was made, and the State has no right
in them.
Mr. CAMPBELL. Mr. President.
I withdraw the amendment.
Mr. THOMAS. I would like to
have the resolution read.
The PRESIDENT. As we have no
Governor, I would like to have the
wording of the resolution changed so
that it would read "Acting Gover
nor." The change is made and the Sec
retary reads the resolution again.
The PRESIDENT. Gentlemen, the
question is upon the passage of the
resolution. Mr. MASON. Mr. President, I of
fer this amendment:
The Secretary read the amend
ment as follows:
"And inform the Convention how
much land, and the particular tracts
which have been selected, the selec
tion of which has not been confirmed
by the General Government.

The amendment was agreed to.
The PRESIDENT. The question
now is upon the adoption of the res
olution as amended.
The resolution was agreed to.
Mr. WILSON. Mr. President. I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That neither the
General Assembly nor any county,
town, or township, school district,
or other public corporation shall ever
make any appropriation, or pay from
any public fund whatever, anything
in aid of any church or sectarian
purpose or to help support or sustain
any school. Academy, Seminary, Col
lege, University or other literary or
scientific institution, controlled by
any church or sectarian denomina
tion whatsoever, nor shall any grant,
or donation of land, money, or other
personal property, ever be made by
the State, or any such public corpora
tion to any church or for and sec
tarian purpose.
Mr. WILSON. I move the refer
ence of the resolution to the Com
mittee on Public Accounts and Ex
penditures. The resolution was so referred.
Mr. VIFQUAIN. I offer a resolu
tion. The Secretary read the resolution
as follows:
RESOLVED. That any railroad
corporation created, or hereafter to
be created, and that has or will re
ceive, land grants from the federal
government, will, after they have be
gun to dispose of their lands under
their so called pre-emption laws, be
taxed upon said pre-emption lands or
credits, as upon other notes or cred
its under the revenue laws.
Mr. VIFQUAIN. Mr. President I
move its reference to the Committee
on Revenue and Finance.

RAILROADS— SPECIAL LAWS

67

Wednesday]

GRENELL-STEWART— KILBURN

[June 21

The resolution was so referred.
Mr. GRENELL. Mr. President.
I ask leave to submit a resolution
and ask that it be referred to Com
mittee No. 8 (Railroad Corpora
tions.) The Secretary read the resolution
as follows:
RESOLVED. That the rolling
stock and all other movable prop
erty belonging to any railroad com
pany or corporation in this State
shall be considered and held to be
personal property, and shall be liable
to execution and sale in the same
manner as personal property of indi
viduals and the Legislature shall
pass no laws exempting any such
property from execution and sale, and
every corporation organized, or doing
business under the laws, or authority
of this state, shall have a public place
in this State for the transaction of
its business and an agent or agents
duly authorized to transact the busi
ness of the same at such place.
The resolution was referred to the
Committee on Railroad Corporations
Mr. STEWART. Mr. President.
I offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Secretary
of this Convention request the Regis
ter of the Land Office at Dacotah, to
transmit at once, the name of the par
ties who have made private entries of
the lands selected for the Agricul
tural College.
Mr. ESTABROOK. I would sug
gest that this resolution be made a
part of the communication already
adopted by the Convention.
Mr. ABBOTT. I suggest the reso
lution be amended by adding the
words "also the amount entered by
each individual".
Mr. STEWART. I accept the
amendment.

Mr. GRIGGS. I move the adop
tion of the resolution.
The motion was agreed to.
Mr. KILBURN. Mr. President. I
offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Legislature
shall not pass local or special laws
in any of the following cases: for —
1. Granting divorces.
2. Laying out, opening, altering
and working roads or highways.
3. Vacating roads, townplats,
streets, alleys and public grounds.
4. Locating or changing county
seats. 5. Regulating county or township
affairs. 6. Regulating the practice in
Courts of Justice.
7. Regulating the jurisdiction and
duties of justices of the peace, police
magistrates, and constables.
8. Providing for changes of venue
in civil and criminal cases.
9. Incorporating cities, towns, or
villages, or changing or amending the
charter of any town, city or village.
10. Providing for the election of
local officers in precincts, counties,
towns or cities.
11. Summoning and impaneling
grand or petit juries.
12. Providing for the management
of common schools.
13. Regulating the interest on
money. 14. The opening and conducting
of any election, or designating the
place of voting.
15. The sale or mortgage of real
estate belonging to minors or others
under disability.
16. The protection of game or fish.
17. Chartering or licensing ferries
or toll bridges.

68

SPECIAL LAWS— APPORTIONMENT

Wednesday]

MYERS— TOWLE —ROBINSON

[June 21

18. Remitting fines, penalties or
forfeitures. 19. Restraining all, or, any kind of
live stock from running at large.
20. Creating, increasing, or de
creasing fees, percentage, or allow
ances of public officers during the
term for which said officers are elect
ed or appointed.
21. Changing the law of descent.
22. Granting to any corporation,
association, or individual, the right to
lay down railroad tracks, or amend
ing existing charters for such pur
poses. 23. Granting to any corporation,
association or individual any special
or exclusive privilege, immunity, or
franchise whatever.
24. In all other cases where a
general law can be made applicable
no special law shall be enacted.
25. The Legislature shall have no
power to release or extinguish, in
whole or in part, the indebtedness,
liability or obligation of any corpora
tion or individual to this State, or
to any municipal corporation therein.
Mr. KILBURN. I move the resolu
tion be referred to the Committee on
Judiciary (No. 1).
The motion was agreed to.
Mr. MYERS. Mr. President, I of
fer the following resolution:
The Secretary read the resolution
of Mr. Myers as follows:
RESOLVED. That the Committee
on Legislative Department are re
quested to consider the following as
an amendment to the Constitution.
That within five years after the
first meeting of the Legislature, and
within every subsequent term of ten
years, an enumeration of the taxable
inhabitants shall be made, in such
manner as shall be directed by law.
The number of representatives shall
at the several periods of making en
umeration, be fixed by the Legisla
ture, and apportioned among the sev
eral counties aceording to the number

of taxable inhabitants in each, and
shall never be less than sixty nor
greater than one hundred. Each or
ganized county shall have at least one
representative; but no county here
after organized, shall be entitled to a
separate Representative until a suffi
cient number of taxable inhabitants
shall be contained within it, agree
ably to the ratio which shall be es
tablished. Mr. MYERS. I ask that that be
referred to the Legislative Com
mittee. Mr. TOWLE. Mr. President. I
would ask if that is subject to amend
ment, whether an amendment would
be in order, if so, I move you that
we strike out the word taxable wher
ever it occurs in the resolution.
The PRESIDENT. The Chair
would rule that the resolution is
not amendable.
Mr. ROBINSON. Mr. President. I
would suggest that this resolution is
but a request to a Committee, and
it must be adopted here and not re
ferred. The PRESIDENT. I will state to
the -gentleman that this rule (No.
36) is very broad and says "All pro
positions presented to the Convention
relating to the provisions on frame of
the Constitution, shall, in the first
instance, be referred to an appropri-*
ate Standing Committee without de
bate except as to the Committee to
which the reference shall be made."
Mr. GRENELL. Mr. President. I
would understand this resolution to
be a proposition "relating to the pro
visions on frame of the Constitution."
The PRESIDENT. The Chair so
understands, and rules that the reso
lution is not amendable.
Mr. LAKE. Mr. President. I

FEES— IMPEACHMENT— PROHIBITION

69

Wednesday]

LAKE— S COFIELD— PHILPOTT— ROBINSON

[June 21

move the adoption of the following
resolution: The Secretary read the resolution
as follows:
RESOLVED. That the Auditor of
State be, and he is hereby requested
to furnish a statement to this Con
vention, showing the amount of Com
mencement fees reported to him un
der the act of the Legislature approv
ed June 22nd, 1867, and the names
of the counties and courts whence the
same was returned, and the amounts
from each.
The motion was agreed to.
Mr. SCOFIELD. Mr. President.
I have a resolution and move its
adoption. The Secretary read the resolution
as follows:
RESOLVED. That the Clerk of
the Supreme Court be requested to
furnish, for the use of this Conven
tion a statement of the number of
cases now pending in that court and
also the number of cases that have
been heard and determined in said
court since the State organized, and
the counties wherein such actions
were originally commenced.
The motion was agreed to.
Mr. PHILPOTT. Mr. President.
I have a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Constitu
tion be so amended as to read as
follows: The House of Representatives shall
have the sole power of impeachment,
but a majority of all the members
elected must concur therein. All im
peachments shall be tried by the Sen
ate, and when sitting for that purpose
the Senators shall be upon oath or
affirmation to do justice according to
law and the evidence. When the
Governor of this State is tried the
Chief Justice shall preside; no person
shall be convicted without the con

currence of two thirds of the Senators
elected, but judgment in such cases,
shall not extend further than re
moval from office or disqualification
to hold any office of honor, profit or
trust under the government of the
State, or both at the discretion of
the Senate. The party, whether con
victed or acquitted, shall nevertheless
be liable to prosecution, trial, judg
ment and punishment according to
law. Mr. PHILPOTT. I move its re
ference to the Committee on Judici
ary. The motion was agreed to.
Mr. PHILPOTT. Mr. President, I
have a resolution.
. The Secretary read the resolution
as follows:
RESOLVED. That the Constitu
tion be so amended as to contain an
article as follows:
The sale, as a beverage, of spirit
uous, vinous and malt liquors, is for
ever prohibited in this State. The
Legislature of the State is hereby em
powered to pass such laws as will se
cure, and effect the enforcement of
this article.
Mr. ROBINSON. Mr. President,
I have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED. That the Judiciary
Committee be and are hereby re
quested to inquire into and report up
on the propriety of establishing a
Board or Tribunal for the determina
tion of the plea of insanity when the
same is interposed in criminal cases,
said Board to consist of the superin
tendent of the Insane Asylum and
such other learned physicians as by
law shall be added to such Board.
Mr. ROBINSON. I move its refer
ence to the Judiciary Committee.
The motion was agreed to.
Mr. HINMAN. Mr. President, I

70

PUBLICATION LAWS— SUNDAY CODE

Wednesday]

HINMAN-PARCHEN— THOMAS

[June 21

have a resolution to offer and move
its reference to the Legislative Com
mittee. The Secretary read the resolution
as follows:
RESOLVED. That the Legislature
shall provide that no law shall take
effect until the same is published
throughout the State, either by pub
lication in one newspaper in each
county where a newspaper is publish
ed, or until the laws are distributed
in pamphlet form to each of the or
ganized counties of the State.
The motion was agreed to.
Mr. PARCHEN. I offer a resolu
tion and move its reference to the
Committee on Municipal Corpora
tions. The Secretary read the resolution
as follows:
RESOLVED. That a section may
be inserted in the Constitution as to
empower the municipal authorities of
every incorporated town to regulate
their affairs in regard of keeping Sab
bath commonly called Sunday.
The motion was agreed to NEM.
CON. Mr. THOMAS. Mr. President, I
desire to offer a resolution.
Resolution . read by the Secretary
as follows:
RESOLVED. That the Committee
on Judiciary be instructed to inquire
into the expediency of incorporating
in the Constitution a clause to the
effect following, to wit:
The Legislature at its first session
after the adoption of the Constitution
shall provide for the appointment of
these [three] Commissioners whose
duty it shall be to inquire into, revise
and simplify the rules of practice,
pleadings, forms and proceedings and
arrange a system adapted to the
Courts of Record of this State and re
port the same to the Legislature sub

ject to their modification and adop
tion; and such Commission shall
terminate upon the rendering of the
report unless otherwise provided by
law. Mr. THOMAS. Mr. President, I
move its reference to the Judicial
Committee. The motion was agreed to.
A communication from the Secre
tary of State was presented and read
by the Secretary as follows:
Office of Sec'y. of State,
Lincoln, Neb., June 21st, 1871.
The Honorable, the President of
the Constitutional Convention,
Sir:In answer to a resolution of your
honorable body on the 2 0th inst. I
have the honor to report that I am
unable to find any contracts or
awards of the State printing in the
file of any office. I find however,
that the persons named below have
filed bonds to perform the labor and
furnish the material mentioned in the
printed list which is attached hereto
and made a part of my reply.
Wesley Montgomery, . . Class No. 1
Mills & Co., Class No  2
E. P. Rolf, Class No  3
C. E. Redfield, Class No  4
E. P. Rolf, Class No  5
E. P. Rolf, Class No  6
CLASSIFICATION NO. 1.
Bills and Resolutions in Bill Form.
 ems composition, small pica
type, per 1000.
 quires flat cap, 14 lbs to ream.
 quires of 2 4 impressions press
work.
 ems composition, pica, yea and
nay lists.
 quires flat cap, cut for yea and
nay lists.
 quires of 24 impressions each,
of press work.

REPORT ON STATE PRINTING

71

Wednesday]

SECRETARY OF STATE JAMES

[June 2V

CLASS NO. 2.
Senate and House Journals, Gover
nor's Messages, Officers' Reports in
the Journals — Super Royal Octavo
Form.
 ems long primer composition.
 quires paper 41 lbs to ream.
-quires presswork (24 impres

sions. ) CLASS NO. 3.
Reports, Communications and Pam
phlet Documents separate from
Journals, — Octavo.
 ems long primer composition.
 quires of paper 40 lbs to ream.

 quires, 24 imp. press work.
CLASS NO. 4.
General and Local Laws, Joint Res
olutions, Memorials, in one super
royal octavo volume.
 ems long primer composition.
 quires super royal, 40 lbs paper.

-quires, 2 4 imp. press work.

CLASS NO. 5.
Letter Heads, Blanks and Circulars.
-ems of composition, brevier

measurement, for letter heads,
circulars and all ruled blanks.
-quires V2 sheet letter 12 lbs to
ream.
-quires full sheet letter 12 lbs to
ream.
-quires press work on letter
heads.
-flat letter, 10 lbs to .ream, for
blanks. ,
-press work on letter blanks.
-quires flat cap, 14x17, 141bs.
-quires flat cap, press work.
-quires folio post, 17x22, 161bs.
-quires of press work.
-quires note 8x10, 5 lbs.

-quires press work.
-quires red and blue ruling in one

direction.
-quires red and blue ruling in

two directions.
Note. — In all the above classes rule
work, or figure work in columns with
out rules will be measured one and a
half times for composition; and rule
and figure work twice.
CLASS NO. 6.
Folding and stitching bills and reso
lutions, and folding and stitching
of pamphlet documents, and covers.
 sheets of flat cap one fold, per
100 sheets.
 sheets of flat cap, stitched per
100 sheets.
 paper covers for octavo pamph
lets, including composition, pa
per and press work, per 100
covers.
 covers put on such pamphlets,
per 100 covers,
 sheets folded octavo (four
times) per 100 sheets.
CLASS NO. 7.
Folding, stitching, covers and binding
for Laws and Journals.
 sheets folded octavo, per 100
sheets
 paper covers for Laws and Jour
nals, inclusive of papers compo
sition and press work, 100 cov
ers.
 copies binding of Laws and Jour
nals in paper covers including
stitching, per 100 copies.
 copies, binding of Laws and

Journals, in law sheep, including
material, stitching, and letter
ing.
I am very respectfully your obe
dient servant.
WM. JAMES,
Secretary of State.
Mr. LAKE. The Judicial Com
mittee have a resolution from this

72

CRIMINALS— LEGISLATIVE SESSIONS

Wednesday]

WEAVER-GRENELL— KIRKPA TRICK

[June 21

body to act upon, and are waiting
for information to be derived from
this report, or communication. I
move its reference to the Judicial
Committee. The motion was agreed to NEM.
CON. Mr. WEAVER. I have a resolu
tion to offer.
The Secretary read the resolution
as follows:
RESOLVED. That the Judiciary
Committee be requested to inquire
into the expediency of permitting
criminals to testify in their own be
half. Mr. WEAVER. Mr. President, I
move its reference to the Judiciary
Committee. The motion was agreed to.
Mr. GRENELL. Mr. President, I
have a resolution.
Resolution read by the Secretary
as follows:
RESOLVED. That the Committee
on the Legislative department be in
structed to inquire into the expedi
ency of so changing the present Con
stitution. 1. That the Legislature shall meet
annually for the transaction of busi
ness. 2. The pay of the members of the
Legislature shall be a salary for the
term for which they are elected and
mileage. 3. That the sum of  : — dollars
be allowed each member for station
ery, postage, newspapers and all
other allowances.
Mr. ABBOTT. I call for the re
reading of the resolution.
The Secretary re-read the resolu
tion. Mr. GRENELL. I move that the
resolution be referred to the Legisla
tive Committee.
The motion was agreed to.

Question of Privilege.
Mr. KIRKPATRICK. I rise to a
question of privilege. On Monday a
resolution was adopted by this body
requesting certain information from
the Auditor relating to the indebt
edness of the State, bonded or other
wise; and also requesting him to
furnish a tabular statement of the
receipts and expenditures of the state,
and other information. I would en
quire if you have received any re
sponse to that resolution.
The PRESIDENT. The Secretary
tells me he informed the Auditor, but
no response has yet been received.
Mr. GRENELL. I was in the Au
ditor's office this morning, and they
were at work on the report. They
informed me it would soon be ready.
Motion to Adjourn.
Mr. GRIGGS. I move this Conven
tion adjourn until to-morrow morn
ing. The PRESIDENT. Will the gen
tleman from Gage (Mr. Griggs)
postpone his motion for a minute or
two. I have a
Mr. GRIGGS. I will.
Bill for Clerk's Services.
The PRESIDENT. Gentlemen,
here is a bill, approved by the Chair
man of a Committee for work done
by a clerk, and brought to me for
approval. I see by referring to sec
tion 7 of the act by which we are
called "That the amount due each
person shall be certified by the Presi
dent of the Convention to the Audi
tor of State, who shall issue warrants
upon the Treasurer of the State, and
the same shall be paid by the Treas
urer as other warrants are paid."

STATE PRINTING

73

Wednesday]

McCANN— PHILPOTT-MYERS

[June 21

Mr. LAKE. What Committee is it
from? Mr. McCANN. The Committee on
Rules. The rules were lengthy; and
a copy was first made in full, then
altered and amended. A second copy
was made for the use of the Presi
dent, and a third for the use of the
printer. There was a good deal of
writing to be done, and in a short
space of time, and it was necessary it
should be done in a legible and neat
manner. The Committee employed a
¦clerk or copyist to copy these rules,
at the time the clerk was performing
this duty it was my impression it
would be the duty of the President
of this Convention to certify to the
work, and the warrant would be
drawn by the Auditor. I believe no
action of the Convention is required,
but I will move that the Convention
be required to audit the account.
Motion agreed to NEM. CON.
Resolutions Again.
Mr. PHILPOTT. Mr. President.
I have a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Judiciary
Committee be allowed and empower
ed to consider on oath or affidavit
•of responsible parties of information
imparted to it relative to the con
tracts now existing between the
State and parties for State printing,
which may now be reported to this
Convention by the Secretary of
State. The PRESIDENT. Gentlemen, the
question is upon the passage of the
resolution. Mr. MYERS. I trust the resolu
tion will not be adopted. I doubt
the propriety of sending for persons

and especially affidavits. I do not
think the subject of that gravity
and necessity that we should resort
to legislative stratagems for the ac
complishment of the object of .these
parties, which is already understood.
We have already a communication
from the Acting Governor. To un
dermine any of that official state
ment, to go behind it by affidavit, is
certainly an unusual practice. I
think this thing has been hunted up
far enough, with the information we
have from the proper department
to enable this Convention to view the
matter understandingly, without go
ing to the cost of procuring persons
or affidavits. This is a Convention,
not a Legislature, and why go to
these extraordinary outside means to
accomplish a purpose so well under
stood. Mr. PHILPOTT. I think the gen
tleman from Douglas (Mr. Myers)
misunderstands the object of the res
olution. I am of the opinion this
has not gone far enough yet. The
object of the resolution introduced a
few days ago was for the purest mo
tive. The object of this resolution
is based upon the report of the Sec
retary of State. I am informed, on
reliable authority, by a gentleman
whose word may be believed, that cer
tain contracts have been made, and
that they cannot now be found. I
do not make any charges, it may be
they are mislayed; but because the
Secretary of State cannot find them
does not follow that the contracts do
not exist. The resolution is that the
Judiciary Committee may be allowed
to consider such information as to
the contracts made as can be found;

74

STATE PRINTING

Wednesday]

TOWLE— MANDERSON

[June 21

and there are competent persons will
ing to testify that certain contracts
have been made, both of which can
not be found. I do think the Judici
ary Committee should be allowed to
take that into consideration, in order
to enable them to arrive at the facts
of the case. I want that Committee
should report intelligibly. In order
to do so they ought to have all the
reliable information which it is pos
sible to have; and the gentleman
ought not to oppose any scheme
which will accomplish this object.
Mr. KIRKPATRICK. I desire to
offer an amendment to the resolution,
to strike out the word "affidavit."
Mr. PHILPOTT. I will accept it
if the gentleman will substitute the
word " affirmation."
Mr. TOWLE. Mr. President, while
it may be possible, and more than
possible, it may be extremely prob
able, that there have been many
causes, and there exists much reason
why an investigation should be in
stituted in relation to certain depart
ments of this State, still, in my view
of this matter, we are elected for a
certain specific purpose; and we are
not elected for the purpose of forni-
ing and resolving ourselves into an
indefinite series of investigating Com
mittees. If we commence this ball, if
we first introduce the wedge, where
will we stop, and to what extent will
we find ourselves traveling? There
will be an investigation as to the in
dividuals who recently escaped from
the penitentiary; as to the lands
sold; and the contracts for the build
ing in which we now stand. The in
vestigation will be lengthy, queries
and resolutions will be innumerable,
and the appropriation and time for

us will be thrown away. Those indi
viduals who have given these bonds,.
simply made their bids to do the
work at certain specified rates, and
those bids are all filed, and a portion
of the records and thereupon, when
those bids were accepted, the parties
were required and did enter into a
bond with the State to do their work
as provided in the bids. It appears.
to me there can be no corruption in
that case. There is no necessity of
investigation here, and there is no
propriety either. The only question
for us is, shall we obtain the print
ing necessary for this Convention.
We have so far obtained it, and it has
been provided in the shortest time.
Mr. MANDERSON. Mr. President,
I shall oppose the adoption of the
resolution of the gentleman from
Lancaster (Mr. Philpott) even if the-
resolution asking for this informa
tion came from the Judiciary
Committee. The former resolution
was that the Secretary of State,
and the Auditor of State each
be requested to make a report as to
the contracts for public printing al
ready made. We have received a
report from the Secretary of State
only, and we have yet to receive, I
take it, a report from the Auditor.
It may be that official has the infor
mation which we desire, it may be
that in his office is the information
we wish. But I oppose it further,
Mr. President, I think it is establish
ing a bad precedent, we cannot do as
the resolution proposes, without turn
ing our committee rooms into courts
of investigation. I think it is entirely
unnecessary that we should take any
such action in this case.
Mr. MASON. The question is

TAXATION— STATE PRINTER

75

Wednesday]

MASON— ROBINSON- BOYD

[June 21

whether there be now in existence a
contract for the performance of this
printing. If there be such contract,
then the State is bound by it. It
seems there has been a statement
furnished us from the Secretary's of
fice. He reports that Mr. A has the
printing for No. 5. Mr. B for No. 3.
Mr. C. for No. one, etc. Now Mr.
President, it may be that No. 5 covers
the incidental printing, and that No.
3 covers the printing of the Journal.
It may be necessary for the Com
mittee to inquire what these respec
tive numbers mean. I suppose this
could be determined by the oath of
the parties to whom contracts were
let. I do not deem it of any great
consequence, further than to deter
mine the question as to whether
there now exists a contract between
this State and some person to do this
printing. If there be such contracts,
then that person is entitled -to the
work. If this Convention refuse to
award the work to him, he would
have the right to collect damages.
I don't know that it is necessary for
this Committee to swear a witness.
Mr. KIRKPATRICK. I wish to
know if my amendment was accept
ed. The PRESIDENT. It was.
The question being upon the re
solution of Mr. Philpott, the Conven
tion divided, and the motion was not
agreed to.
Mr. MASON. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That the Committee
on Municipal Corporations be in
structed to. inquire into and report
as to the expediency of putting the

following into the Constitution, to
wit: 1. All Cities, Villages and other
Municipal Corporations, shall be in
corporated by general law, and shall
have no other powers than such as
are provided by law.
2. The valuation of all property,
whether real, personal, or mixed, for
taxation or assessment shall not ex
ceed that made by the State for pur
poses of taxation.
3 . The percentage for taxation and
assessment shall be limited,' and
neither shall be levied only upon pro
perty benefited, and for special assess
ment only in proportion, and to the
amount of the benefit derived by the
improvement for which the assess
ment was made.
Referred to the Committee on Mu
nicipal Corporations NEM. CON.
Mr. ROBINSON. Mr. President, I
have a resolution.
The Secretary read the resolution
as follows:
RESOLVED. That Committee No.
27 be instructed to report the expedi
ency of incorporating into the Con
stitution, a section providing for the
election of a State Printer, and defin
ing his powers.
Mr. ROBINSON. Mr. President, I
move its reference to Committee No.
27 (Committee on Printing and Bind
ing.) Motion agreed to.
Mr. BOYD. I wish to offer a reso
lution, Mr. President.
The Secretary reads the resolution
as follows:
RESOLVED. That Committee No.
9, on Miscellaneous Corporations, be
instructed to inquire into the ex
pediency of inserting in the proposed
Constitution a clause "that the gener
al assembly shall provide by law,
that in all elections for directors or
managers of incorporated companies,

76

CORPORATION ELECTIONS— SUNDAY

Wednesday]

PARCHEN-GRIGGS— STATE AUDITOR

[June 21

every stock holder shall have the
right to vote in person or by proxy,
for the number of shares of stock
owned by him, for as many persons
as there are directors or managers
to be elected, or to cumulate said
shares and give one candidate as
many votes as the number of direct
ors, multiplied by the number of his
shares of stock, shall equal; or to
distribute them, upon the same prin
ciple, among as many candidates as
he shall think fit and such directors,
or managers, shall not be elected in
any other manner.
Referred to Committee No. 9,
(Miscellaneous Corporations) NEM.
CON. Mr. PARCHEN. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED. That a section may
be inserted in the Constitution as to
empower the Municipal Authorities of
any incorporated town to regulate
their affairs in regard to keeping Sab
bath, commonly called Sunday.
Mr. PARCHEN. I move the reso
lution be referred to Committee No.
2 3 (Penitentiaries and Reformatory
Institutions). The resolution was so referred
NEM. CON. Adjournment.
Mr. GRIGGS. Mr. President. I
move we adjourn until to-morrow
morning, at ten o'clock.
The PRESIDENT. The motion to
adjourn is in order, but here are
two communications from the Audi
tor, which I would like to have the
Secretary read.
Mr. GRIGGS. I withold the mo
tion for the present.
The Secretary read the communi

cation from the Auditor, as follows:
Auditor's Office.
Lincoln, June 21, 1871.
Hon. S. A. Strickland, President Con
stitutional Convention:
Sir: — In response to resolution of
Constitutional Convention of 20th
inst. with request for statements of
School Lands sold, etc., I have the
honor to report the following to the
several questions asked:
First, whole amount of school
lands sold, 86,840.
Second, Average price per acre,
$9.09. Third, No. of acres sold in each
county as follows:
1867-68 Acres Av. price
Saunders  640 $ 8.63
Lancaster  1,345 28.82
Otoe  5,667 10.33
Nemaha  3,723 7.60
Pawnee  1,030 9.00
Dodge  2,551 9.60
Cedar  325 7.50
Dakota  270 7.00
Saline  89 9.40
Washington  3..470 10.00
Sarpy  866 7.40
Douglas  1,938 9.87
Total sales in 1867 and 1868, 21,-
944 acres, average price $10.53.
1869-70 Acres Av. price
Saline  949 $ 8.38
Cass  11,171 8.96
Gage  1,791 7.70
Colfax  650 9.73
Sarpy  440 7.00
Washington  2,430 7.66
Richardson  5,580 8.25
Dixon  370 7.00
Douglas  3,920 12.15
Lancaster  12,170 7.80
Dodge  4,060 7.34
Seward  3,440 7.07
Nemaha  3,898 7.88
Butler  10 25.00
Stanton  450 7.82
Johnson ........ 2,054 7.20
Hall  640 16.30
Pawnee  1,980 7.04
Otoe  8,493 8.47

STATE LANDS— COST OF CAPITOL

77

Wednesday]

STATE AUDITOR GILLESPIE

[June 21

Total acres sold 1869 and 1870,
64,905; general average $8.48.
Fourth question, The amount of
school lands taken under the home
stead and pre-emption laws — the
amount selected in lieu thereof — ¦
will answer by quotation from the
second annual report of the commis
sioner of public schools, session of
1860-'61, by Hon. W. E. Harvey:
"In accordance with the act to pro
vide for the selection of lands in lieu
of sections 16 and 36, in cases where
part of sections thereof, have been
sold, approved January 13, 1860, I
have selected in the Dakota land dist
rict. In lieu of lands
entered  3,659.60 acres
To supply sectional
township  849.40 acres
Total acres
selected  4,509.00
South Platte Land District.
In lieu of land
entries  3,084.60 acres
For sectional
township  800.00 acres
Total acres
selected  3,884.60
.. ..Nemaha Land District 
In lieu of lands
entered  960 acres
For sectional
township  480 acres
Total acres
selected  1,440
Grand total of acres
selected  9,833.60
The confirmation of the foregoing
selections have never been reported
by the department at Washington,
and consequently the title has never
passed to the State.
Question sixth, relative to the ac
tual amount of common school lands
of the State, I will state that it
cannot be definitely ascertained, as
the survey of the State has not been
completed, and the area of the State
not known in this department.

Seventh question, "How much has
been raised annually by direct tax
ation for common schools, etc?"
There has been levied annually two
(2) mills upon the assessed valua
tion of the taxable property of the
State for common schools.
Eighth question, the amount ac
cruing to the school fund from school
land sold and leased.
Interest to Jan. 1, 1869, $ 6,659 37
Interest to Jan. 1,,1871, 100,174 24
Amount rec. from ....$106,835.61
lease of school lands, 5,197.68
Total  $112,032.29
Respectfully submitted,
JOHN GILLESPIE, State Auditor.
I move that 200 copies of the re
port from the Auditor be printed for
the use of the members.
Motion agreed to.
The Secretary then read the
following second communication
from the Auditor. Auditor's Office,
Lincoln, Neb., June 21, 1871
Hon. S. A. Strickland, President of
Constitutional Convention.
Sir: — In response to a resolution
of 20th inst, from your honorable
body, asking for "a statement show
ing the various amounts that have
been appropriated or expended upon
the Capitol Building and Grounds"
I have the honor to report as follows:
Cost of Capitol Bld'g. . . .$97,873.68
Cost fencing Capitol gd's 2,535.00
Cost grading Capitol gd's 3.256.27
Cost trees Capitol gd's. . . 2,082.10

Total  $105,767.05
Respectfully submitted,
JOHN GILLESPIE, State Auditor.
Mr. ABBOTT. Mr. President. I
move the report be referred to the
Committee on Public Buildings.
Motion agreed to.

78

COURT FEES

Thursday]

CHAPLAIN FIFIELD— AUDITOR GILLESPrE

[June 22

Mr. ABBOTT. Mr. President. I
now move that we adjourn until to
morrow, morning at ten o'clock.
Motion agreed to.
So the Convention (at twelve
o'clock and five minutes) adjourned.

EIGHTH DAY.
Thursday, June 22, 1871
The Convention met at ten o'clock
a. m. and was called to order by the
President. Prayer.
Prayer was offered by Rev. L. B.

Fifield of Lincoln as follows:
Our Father, thanks be unto Thee
for thy mercies and glory forever.
Oh, Thou who art the eternal wisdom
show us into Thy own truth, teach
us that- we may control our hearts;
deliver us from evil; bless the steps
of our path we pray, and lead us out
from the wilderness into Thy light.
Amen. Reading of the Journal.
The Secretary read the Journal of
the last days proceedings.
The Secretary read the following
communication from Hon. John Gil
lespie, State Auditor.

Missing Page

Fold out

SUPREME COURT CASES

79

Thursday]

AUDITOR GILLESPIE-LAKE

[June 22

Mr. McCANN. Mr. President, I
move that the reading of the tabular
statement be dispensed with, and 200
copies ordered printed.
The motion was agreed to.
The Secretary read the following
communication from Hon. John Gil
lespie, State Auditor. State of Nebraska.
Auditor's Office,
Lincoln, Neb., June 22, 1871
Hon. Silas A. Strickland, President of
Constitutional Convention.
Sir: In response to a resolution of Con
stitutional Convention of 21st inst,
asking for a statement "showing the
amount of Commencement Fees re
ported to this office, under the act of
the Legislature approved June 22,
1867, and the names of the counties
and courts where the same was re
turned, and the amounts from each",
I have the honor to report the follow
ing as returned to this office:
FIRST JUDICIAL DISTRICT, HON.
O. P. MASON, JUDGE.
Commencement Fees reported
from;
otoCeOUnty  ^^O
Nemaha  1'llz
Richardson  °™
Pawnee  £""
Johnson  %%*.
Gage  *H
Jefferson  °"
Saline  lu

Saunders 

•100

Seward 

60

Total amount report
ed in 2nd Judicial Dis
trict 

. . .$9,580

THIRD JUDICIAL DISTRICT,
HON. L. CROUNSE, JUDGE.
Commencement Fees reported
from; County Amount
Washington  $570
Dodge  605
Platte  235
Lincoln  325
Burt  130
Dakota  195
Cuming  85
Hall  80
Colfax  '  50
Cedar  25
Total amount report
ed in 3rd Judicial Dist
rict  $2,240

Total amount reported
in first Judicial District. . .$5,625
SECOND' JUDICIAL DISTRICT,
HON. GEO. B. LAKE, JUDGE. '
Commencement Fees reported
from; County Amount
Douglas  V,Gr
Cass  i'^S
Sarpy  %Y
Lancaster  DD0

RECAPITULATION.
1st Judicial Dist  5,625
2nd Judicial Dist  9,580
3rd Judicial Dist  2,240

Total  $17,445
Supreme Court  410
Grand total  $17,855
All of which is respectfully sub
mitted. Very respectfully
Your Obt. Servt.
JOHN GILLESPIE, State Auditor.
Mr. LAKE. Mr. President, I move
that the report from the Auditor be
referred to the Judiciary Committee.
The motion was agreed to.
The Secretary read the following
communication from the Clerk of
the Supreme Court:
Office of Clerk of the Su-

80

STATE FINANCES

Thursday]

GUY A. BROWN— AUDITOR GILLESPIE

[June 22

preme Court, State of Nebraska.
Lincoln, June 22, 1871.
To the Hon. the members of the Con
stitutional Convention.
Gentlemen: — In accordance with a
resolution, this day passed by your
honorable body, I have the honor to
report. 1. That the number of cases now
pending in the Supreme Court is six
teen (16).
2. That the number of cases
heard and determined in said court
since the State organization is 88.
3. That the counties wherein
such actions were originally com
menced are as follows: Douglas
(32), Otoe (30)\, Cass (7), Nemaha
( 4 ) , Lancaster ( 3 ) , Dodge ( 3 ) , Paw
nee (2), Burt (2), Dakota (2),
Washington (2), and Lincoln (1).
Total 88.
Very respectfully
Your obedient servant,
GUY A. BROWN,
Clerk of Supreme Cr't.

Mr. MANDERSON. Mr. President,
I move that the communication be
referred to the Judiciary Committee.
The motion was agreed to.
The Secretary read a communica
tion from the Auditor of State as fol
lows: Auditor's Office,
Lincoln, Neb., June 21, 1871.
Hon. S. A. Strickland,
President Constitutional Con
vention: Sir: In reply to the following resolu
tion of the Constitutional Convention
of the 20th inst, viz.:
RESOLVED: That the Auditor of
State be requested to furnish to this
Convention, without delay, a state
ment showing the entire indebted
ness of the State, outstanding and un
paid at this date, including all un
paid and outstanding warrants and
bonds of the territory of Nebraska.

I have the honor to report the following:
STATE INDE BTEDNESS.
Outstanding warrants (general fund)  $130,000
Outstanding warrants (building fund)  40'000
Territorial militia bonds, etc., (held by school fund)  36,300
Interest on bonds and floating indebtedness  2 5^000
Loan of "University fund" (Act approved February 6, 1871) . . 16^000
Annual expenses on general fund  200,000
Total Indebtedness  $447,300
RESOURCES
Tax levy of 1870 ("general fund")  $122,500
Tax levy of delinquent general fund taxes  60,500
Tax levy of sinking fund 1870  26^800
Tax levy of delinquent S R L taxes  18,000
Total resources  $227,800
Amount of liabilities over resources  $219,500

The foregoing shows the flnancial
condition of the State, by enumerat
ing the outstanding indebtedness and

expenses annually of the State, and
giving a statement of the State's re
sources, for the payment of the samev

PRINTING— SCHOOLS

81

Thursday]

KIRKPATRICK— McCANN— JAMES

[June 22

as now provided by law, which leaves
a balance of indebtedness to be pro
vided for of $219,500.
I am respectfully,
your obedient servant,
JOHN GILLESPIE, State Auditor.
Mr. KIRKPATRICK. Mr. Presi
dent, I move that the communication
be laid on the table, and 100 copies
be printed for the use of this Con
vention. Mr. WILSON. I move to amend
by making the number 1,000.
The amendment was not agreed
to. Mr. McCANN. I move to amend
by fixing the number at 500 copies.
The Convention divided and the
amendment was agreed to.
The motion as amended was
agreed to.
The Secretary read the following
communication from the Acting Gov
ernor: State of Nebraska,
Executive Department,
Lincoln, June 22, 1871.
To the Honorable, the President of
the Convention.
Dear Sir:
In answer to the enquiry of your
honorable body in relation to the
cost of the public printing of the
this State, up to this date, I have to
state, that in answer to an enquiry
addressed to the Auditor of State, I
am informed the entire disburse
ments for this purpose up to this
time amounts to the sum of $20,851.-
10. I am very respectfully,
Your obedient servant,
WM. H. JAMES, .
Sect, of State.

Mr.

ABBOTT- I move it be refer

red to the Committee on Public Ac
counts and Expenditures.
The motion was agreed, to.
Mr. McCANN. Mr. President, I
would ask the Secretary if the com
munication of the Auditor in re
sponse to the resolution requesting
a statement of school lands sold has
been received and if so that it be
read. The PRESIDENT. The Secretary
has read that statement and it has
been ordered printed.
Mr. McCANN. I would call the
attention of the Convention to the
remark of the Auditor to the ques
tion, "How much has been raised
annually by direct taxation for com
mon schools, etc.." He says, "there
has been levied annually two (2)
mills upon the assessed valuation of
the taxable property of the State for
common schools." I apprehend, Mr.
President, the object of the mover
was to get the gross amount RAIS
ED, NOT the amount LEVIED. I
want to know how much has been
raised; and I take it that was the
object of the motion.
Mr. ABBOTT. Another question
was not answered — the number of
acres of school lands entered under
the pre-emption laws. I would like
that embodied.
Mr. McCANN. Mr. President, I
move that the statement be referred
to the Auditor for correction.
Mr. CAMPBELL. I would also
offer an amendment, Mr. President,
that he state how much was received
from Otoe county.
Mr. TOWLE. The report present
ed this morning from the Auditor
and ordered printed, contains all the

82

SCHOOL LANDS

Thursday]

NELIGH— SPEICE-WOOL WORTH

[June 22

necessary information.
Mr. McCANN. Mr. President, I
would state, in reply to the gentle
man that the information wanted
is for the committee; that it is nol
in shape to obtain the object desired.
I will put my resolution in writing,
asking that this report be referred
to the Auditor for correction in the
two items specified.
Mr. NELIGH. I also would like
incorporated in the resolution of the
gentleman from Otoe "that the Aud
itor be requested to inform this Con
vention if there is any county in this
State of the name of Cuming, and if
so what amount of school lands have
been sold, and its average price per
acre." Mr. GIBBS. Mr. President, I
would call the attention of the Con
vention to the fact that Burt County
is left out. A large portion of land
has been sold there.
The PRESIDENT. I notice that
in one of the other communications
Burt County is left out. I don't
know why.
Mr. SPEICE. I desire to know
the number of acres sold in Platte
County. I know the greater portion
of Section 16, Township 17, Range
1, East, has been sold. I would like
to have the Auditor report any that
have been reported to him.
The PRESIDENT. Will the gen
tleman from Platte (Mr. Speice)
offer a resolution?
Mr. SPEICE. I will.
The PRESIDENT. Please reduce
it to writing.
Mr. SPRAGUE. I find there are
a great many mistakes in this re
port of the Auditor's. I know there

was a much larger amount of lands
sold in our County (Saunders) than
is here credited. According to the
Auditor's report there has been but
640 acres sold in our County.
Mr. WOOLWORTH. Mr. Presi
dent, I am told that the records in
the Dept. of State, are very defective,
that they will not show all the sel
ections of land, nor nearly all, and I
would suggest, if it is possible that
an inquiry be extended to the offi
cers of the Land offices of the diff
erent districts, and if we do not find
the desired information there, then
an inquiry be directed to the Gen-
ral Land office; this investigation to
be as thorough and extensive as pos
sible. Now I do not know anything
about this matter myself, for I have
never had any. business which called
me to investigate it. I have not been
a member of the Legislature, or in
any other way whatever been con
nected with the Government. I mere
ly state what is told me, and if it is
true that the records of any depart
ment of our State Government are
defective the matter should be look
ed up. I don't make any motion,
Mr. President, I merely suggest. It
is for those who are connected with
this matter to take action in it.
Mr. HASCALL. Mr. President, I
think this whole matter can be reach
ed through our various State officials
here in Lincoln. When these school
lands are sold, of course the money
would come into the State Treasury.
If the money has not come into the
Treasury we can assertain from the
Treasures of the different Counties
why it has not. It is a very easy
matter to reach it in that way.

SCHOOL LANDS

83

Thursday]

WOOLWORTH— McCANN

[June 22

Mr. WOOLWORTH. It seems to
me, Mr. President, that the right
place to commence these inquiries is
at the fountain head — at the differ
ent land offices. I speak now, not
merely of the 16th and 36th Sections,
but with reference to a great many
other donations which have been
made by the General Government.
If it is true that these departments
here, do not contain the information
required, then that information
ought to be obtained at' once from
the local or General Land offices. I
don't know anything about it. I
make no charges. I merely re-echo
statements which have been made in
my presence since I came here: but
I would like to know, for my own
satisfaction just what disposition
has been made of these lands.
Mr. SPEICE. I would like very
much to have the information which
the gentleman from Douglas (Mr.
Woolworth) speaks of; but I don't
understand that the resolution spok
en of here, touches anything other
than the 16th and 36th sections.
I take it, that the statement of the
Auditor now before the Convention,
would, perhaps, if corrected, show all
the lands which have been sold by
-the different land offices.
Mr. McCANN. Mr. President, I
wish to offer a resolution.
The resolution is read by the Sec
retary as follows:
RESOLVED: That the report of
the Auditor of State, in reply to the
resolution of the Convention of the
20th inst., asking for a statement of
school lands, value, etc., be respect
fully returned to the Auditor, with
the request that he further inform
the Convention.

1st. . As to the amount of taxes
actually collected, and from what
counties. 2nd. As to the number of acres
taken under homestead and pre-em-
tion laws.
The PRESIDENT, I think the
gentleman from Cuming (Mr.' Ne
ligh) offers an amendment.
Mr. NELIGH. Yes sir.
The Secretary read the amendment,
as follows: RESOLVED: That the Auditor
of this State be requested to inform
this Convention, if there is any
county in this State of the name of
Cuming, and if so, what amount of
school lands has been sold, and its
average price per acre.
The resolution was referred to
Committee on Education.
Mr. SPEICE. Mr. President, I of
fer an amendment to the resolution
of the gentleman from Otoe (Mr.
McCann). The Secretary read the resolution
as follows:
RESOLVED: That the Auditor of
State be requested to report to this
Convention, the number of acres of
school land sold in Platte County, to
gether with the amount of money re
ceived therefor.
Amendment agreed to.
Mr. SPIECE. I see that the coun
ties of L' Eau qui Court and Madison
are not mentioned in the list of coun
ties published in the Auditor's re
port. I move that these counties be
considered, in the resolution.
The PRESIDENT. It will be done,
without objection is made.
Mr. LAKE. Mr. President. It
seems to me that these amendments
to the resolution offered by the gen
tleman from Otoe, (Mr. McCann) are
somewhat out of place, for this rea-

84

SCHOOL LANDS

Thursday]

LAKE-GRAY— SPRAGUE

[June 22

son: the Auditor has answered the
questions asked him, so far as this
matter is concerned. His answer to
the first question is "first, whole
amount of school lands sold, 86,840."
To the second question he answers;
"Second, average price per acre,
$9.09." To the 3rd,, "Third, number of
acres sold in each county," and fol
lows with a list of the different
counties in the State, and set oppo
site each the number of acres sold
in that county. Now, unless we Im
peach the integrity and fairness of
the Auditor, he has reported all that
appears in his office. It seems to
me . that if information be desired
more specially on this subject, there
should be a further and independent
resolution, directing him to report
specially as to those sections, and not
encumber the resolution of the gen
tleman from Otoe (Mr. McCann) in
this manner. Now I am perfectly
satisfied that the information desired
is not to be found in the Auditor's
office, because I believe the Auditor,
when he made this report, report
ed all the information in his posses
sion relative to these three questions:
First as to the whole amount of
school lands sold, Second the average
price per acre and, third the number
of acres sold in each county. He has
answer these interrogatories, and
we have that answer on our tables
before us. It seems to me that this
matter is entirely out of order.
Mr. GRAY. Mr. President. I have
no doubt but that this report of the
Auditor's contains a statement of the
whole matter appearing upon the re
cords in his possession. I have no

doubt but that these counties that
don't appear have not made their re
turns, and consequently could not be
put upon the report. That informa
tion can be obtained in a moment by
sending a Committee to ask the Audi
tor whether he has any such informa
tion in his possession, and if gentle
men here have any doubt about the
whole matter appearing in this re
port, they can send a Committee to
wait upon the Auditor.
Mr. SPRAGUE. Mr. President, I
wish to offer an amendment to the
resolution of the gentleman from
Otoe (Mr. McCann).
The Secretary read the resolution
as follows:
RESOLVED: That the report of
the Auditor of State, in response to-
a resolution of this Committee of the
20th inst., with request for state
ments of school lands sold and etc.,
be referred back to said Auditor with
a request for a statement of all school
lands sold in Saunders county, not
only in the years 1867-68, but also-
all sold in said county in the years
of 1869 and 1870.
Mr. ESTABROOK. Mr. President,
I would like to hear from the gentle
men on this floor, representing these
counties, whether there has been re
turns to the State officers from these
counties. I would like to hear from
the gentleman from Cuming, (Mr.
Neligh) Mr. NELIGH. I am satisfied that
there has been considerable lands
sold in Cuming county, and I have
a communication from the clerk of
the county asking me to obtain deeds
from the State, and I have no doubt
there is something appearing on the
State records here concerning these
sales.

SCHOOL LANDS

85

Thursday]

ESTABROOK— SPEICE— GIBBS

[June 22

Mr. ESTABROOK. I would like to
ask further from the gentleman, if
he thinks the county Treasurer has
made any report to the State.
Mr. NELIGH. I have no doubt he
has sir.
Mr. ESTABROOK. Mr. President,
perhaps the proper place to direct
this inquiry is to the Treasury de
partment. Mr. SPRAGUE. Mr. President. In
introducing the resolution offered by
me, I do not intend to cast any re
flection upon the Auditor; but I am
satisfied that there has been sales
reported from Saunders county,
which do not appear on this state
ment. Mr. SPEICE. Mr. President, be
fore putting the amendment I have
offered. I have this to say to the
gentleman from Douglas (Mr. Esta
brook) in answer to his question
whether we are confident that any
lands have been sold in our counties,
and if so, whether reports have been
made to the Auditor. In regard to
the first question. I can answer,
yes sir, positively. I am satisfied
that almost the entire amount of
Town 17, Range 1, East; also of 18
Range 1, East. But whether the
county officers have reported the
sales to the State officers, or not, I
cannot tell.
I do not think that by offering this
resolution, we have any design to im
peach the report of the Auditor. I
started out with the belief that the
Auditor had made a mistake and if
he has, it would not be any discour
tesy to ask him whether he has or
not. If the county officers are at
fault I for one desire to know it.

Mr. ABBOTT. Mr. President. I
move that the Auditor's report and
the whole thing be referred to a Com
mittee of three.
Mr. WOOLWORTH. It seems to
me, that the Committee on Education,
School Funds and Lands is the prop
er one to commit this matter to.
Mr. ABBOTT. I accept the sug
gestion of the gentleman from Doug
las (Mr. Woolworth) to commit to
the Standing Committee on Educa
tion, No. 6.
Mr. GIBBS. I have spoken to
the Auditor, and he says he has re
ported all the lands on his records;
The fault must be with the county of
ficers. But there is apparently a
mistake in this report, as there is
money reported received from coun
ties in which it does not appear any
lands have been sold.
Mr. McCANN. I agree with the
gentleman from Douglas, (Mr. Lake)
that my resolution ought not to be
encumbered by these amendments.
The PRESIDENT. The question is
upon the motion to commit by the
gentlemen from Hall (Mr. Abbott).
The motion to commit was agreed
to. The PRESIDENT. The question
now is on the adoption of the resolu
tion of the gentleman from Saunders
(Mr. Sprague).
Mr. SPRAGUE. Mr. President, I
ask leave to withdraw my resolution
now, — or instead of withdrawing it,
I would ask that it be referred to
the same Committee with the others.
So referred NEM. CON.
Petitions.
Mr. THOMAS. Mr. President, I

86

PRINTING BIDS— OFFICES

Thursday]

SPEICE-LAKE— THOMAS

[June 22

desire to offer a petition from
De Forrest Porter and 74 others, and
I ask that it be referred to the Com
mittee on Schedule.
The PRESIDENT. It will be so
referred if no one objects.
Mr. SPEICE. Mr. President, I call
for the reading of the petition.
The Secretary read the petition as
follows: To the Honorable, the members of
the Constitutional Convention of the
State of Nebraska in Convention as
sembled. We the undersigned, citizens and
voters of the State do hereby most
respectfully and earnestly petition
your honorable body to provide for
the vacation of all State and county
officers of said State: and to provide
for the election of officers to fill the
same, at the same time of the vote
for or against the adoption of the
new Constitution which you shall
form. (Signed) DE FORREST PORTER.
And 74 others.
Reports of Standing Committees
Mr. LAKE. Mr. President, The
Committee on Judiciary wish to make
report. The report was read by the Secre
tary as follows:
Mr. President. The Judiciary Com
mittee to whom was referred the re
solution relative to printing which is
herewith returned, have had the same
under consideration and beg leave to
report that they are unable to find
that any provision has been made
for the printing of this Convention,
that it is not included in any of the
contracts for printing entered into on
behalf of the State with any person
or persons whomsoever.
Your Committee are of the opinion
that the subject of printing is entire
ly within the control of this Con

vention, and that the best interest of
the State as well as a proper regard
to the spirit of the Constitution re
quire that the printing be given to
the lowest responsible bidder who is
in a situation to do the work.
Your Committee would further say
that they see no reason for providing
at this time for any but the inciden
tal printing, and therefore submit
the following as a substitute for the
original resolution and recommend
its adoption.
RESOLVED: That this Conven
tion has the right to control all the
printing necessary to a proper dis
charge of its duties.
Your Committee further recom
mend that the necessary incidental
printing be let as soon as practicable
to the lowest responsible bidder,
five days notice being first given.
That person to whom the contract
shall be awarded be required to give
ample security for the prompt and
faithful performance of the work and
that the contract be unassignable.
GEO. B. LAKE,
Chairman.
Mr. McCANN. Mr. President, I
move the adoption of the resolution.
The motion was agreed to.
Mr. ESTABROOK. Mr. President,
I move it be referred to the Com
mittee on Printing and Binding with
instructions to carry the same into
effect. The motion was agreed to.
Mr. THOMAS. Mr. President, The
Judiciary Committee desire to make
report. The Secretary read the report as
follows: Mr. President. Your Committee
on Judiciary to whom was referred
the following resolution to- wit:
RESOLVED: That the Judiciary
Committee be and are hereby re
quested to inquire into and report
upon the propriety of establishing a

INSANITY— GRAND JURY SYSTEM

87

Thursday]

MANDERSON— HASCALL

[June 22

board or tribunal for the determi
nation of the plea of insanity, when
the same is interposed in criminal
cases, said board to consist of the
Superintendent of the Insane Asylum
and such other learned physicians as
by law shall be added to such board."
Would respectfully report, that we
have carefully examined the said
resolution and report the same back
with the recommendation, that the
provisions thereof be not embodied
in the Constitution. GEO. B. LAKE,
Chairman Judiciary Com.
Mr. MANDERSON. Mr. President,
I move that the report be adopted.
Mr. HASCALL. Mr. President, I
move to amend by saying that we ac
cept the report, then, after due con
sideration the proposition may be
entertained. The PRESIDENT. When the re
port is read it is considered accepted,
the question is on the adoption.
The motion was agreed to.
Mr. MANDERSON. Mr. President,
At the request of the Chairman of
the Committee on Judiciary, I beg
leave to offer this report.
The report was read by the Secre
tary as follows:
Report of the Standing Committee
(No. 1,) Judiciary, (through Mr. Man
derson. )
Your Committee on Judiciary to
which was referred the following
resolution: RESOLVED: That the Judiciary
Committee submit a report to this
Convention on the Constitutionality
of abolishing the Grand Jury system
in this State". Begs leave to report
that in its opinion it is Constitutional
to abolish the Grand Jury system.
CHARLES F. MANDERSON,
for the Committee on Judiciary.
Mr. ESTABROOK. I presume
these resolutions are offered as sug

gestions to the different Committees,
those referred to the Judiciary are
to elicit their opinion as to the law,
when they report, they become sug
gestions, and as such should be on
our table. They may be adopted in the
Constitution or not.
Mr. HASCALL. Mr. President, I
would say that the views just ex
pressed were the reasons why I vot
ed against adopting the last report.
I think it is improper for reports to
come in here in regard to the frame
of the Constitution. I think as the
General has said, nothwithstanding
the adoption of these reports, the pro
position is still before the Convention.
It looks as an inlproper proceeding
to transact business in that way.
Mr. ESTABROOK. If this report
was referred to a Committee for di
rection, it seems to me it should go
back to that Committee.
Mr. MANDERSON. Mr. /President,
It seems to me the subject matter
of this resolution is more properly
for the Committee on Bill of Rights.
As I understand the resolution it
was merely to obtain from the Judi
cial Committee its opinion as to the
constitutionality of abolishing the
Grand Jury system. That Committee
has given its opinion. I do not think
myself that a motion to adopt the
report would be in order, but a mo-.
tion to refer this report to the Com
mittee on Bill of Rights I think
would be in order. I therefore make
such motion.
Mr. WAKELEY. Mr. President, I
have no sort of choice personally as
to what is done with the report, but
as inaugurating a system for prece
dent, I desire to say a word upon

GRAND JURY— BILL OF RIGHTS

Thursday]

WAKELEY— MAXWELL— MASON

[June 22

it, I do not understand that when a
report from the Committee is made
here it requires no action on the
part of the Convention; it does not
recommend any action, but is merely
the expression of the Committee on
an abstract question of law. I do not
understand, under those circum
stances, the Convention is called up
on to take any action on the report.
I do not see anything in that report
to be referred to the Committee on
Bill of Rights. The report states the
Judicial Committee deem it consti
tutional to abolish the Grand Jury
system, they do not ask the Conven
tion to take any action, do not pro
pose any action. No member of the
Convention proposes any action. Mr.
Manderson proposes that the report
be referred to the Committee on Bill
of Rights. I suggest that if the Com
mittee on Bill of Rights should take
any action it should be presented in
the form of a resolution. What you
send to the Committee by referring
this report is simply an expression of
the Judicial Committee upon an ab
stract question of Constitutional law.
Mr. MYERS. Mr. President, I
move that the report be laid on the
table. The PRESIDENT. Allow me to say
I think these motions should be re
ferred back unless they are to be iaid
on the table or referred to some other
Committee, as if you should adopt
and the question should come up at a
future time it would require a Itvo-
thirds vote of the body to change.
Mr. MAXWELL. Mr. President —
Mr. MYERS. I object, a motion to
lay on the table is not debatable.
Mr. HINMAN. A motion to com

mit is not debatable.
Mr. MAXWELL. The rules read,
to commit, to amend, to lay on the
table, so that the motion to lay on
the table is third.
The PRESIDENT. By the rule,
the motion to lay on the table, by
the gentleman from Douglas (Mr.
Myers) takes precedence.
The motion was agreed to.
Mr. MASON. Mr. President, Your
Committee on Bill of Rights present
their report.
The Secretary read the report as
follows: MR., PRESIDENT:
Your Committee on "Bill of
Rights" report the following pre
amble and article 1 of the proposed
Constitution and would respectfully
recommend that the same be adopted
by the Convention. O. P. MASON,
Chairman Committee Bill of Rights.
THE CONSTITUTION OF THE
STATE OF NEBRASKA.
PREAMBLE. -
We, the people of the State of Ne
braska — grateful to Almighty God
for the civil, political and religious
liberty which He hath so long per
mitted us to enjoy, and looking to
him for a blessing upon our endeav
ors to secure and transmit the same
unimpaired to succeeding generations
— in order to form a more perfect
government, establish justice, insure
domestic tranquillity, provide for the
common defense, promote the general
welfare, and secure the blessings of
liberty to ourselves and posterity,
do ordain and establish this Consti
tution for the State of Nebraska.
ARTICLE I.
Bill of Rights.
fl 1. All men are by nature free and
independent, and having certain in
herent and inalienable rights— among
these are life, liberty and the pur-

BILL OF RIGHTS

Thursday]

MASON REPORT

[June 22

suit of happiness. To secure these
rights and protection of property,
governments are instituted among
men, deriving their just power from
the consent of the governed.
fl 2. No person shall be deprived
of life, liberty or property without
due process of law.
fl 3. The free exercise and enjoy
ment of religious profession and wor
ship, without discrimination, shall
forever be guaranteed; and no per
son shall be denied any civil or po
litical right, privilege or capacity on
account of his religious opinions;
hut the liberty of conscience hereby
secured shall not be construed to dis
pense with oaths or affirmations, acts
of licentiousness, or justify prac
tices inconsistent with the peace or
safety of the State. No person shall
he required to attend or support any
ministry or place of worship, nor
shall any preference be given by law
to any religious denomination or
mode of worship.
If 4. - Every person may freely
speak, write and publish on all sub
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth, when published with good mo
tives and for justifiable ends, shall
be a sufficient defense.
fl 5. The right of trial by jury as
heretofore enjoyed, shall remain in
violate; but the trial of civil cases
before justices of the peace by a
jury of less than twelve men, may
be authorized by law.
fl 6. The right of the people to be
•secure in their persons, houses) pa
pers and effects against unreasonable
•searches and seizures, shall not be
violated, and no warrants shall issue
without probable cause, supported by
affidavit, particularly describing the
place to be searched and the persons
or things to be seized.
ff 7. All persons shall be bailable
hy sufficient securities, except for
treason and murder, where the proof
is evident or the presumption great;

and the privilege of the writ of
habeas corpus shall not be suspended,
unless when in case of rebellion or
invasion, the public safety may re
quire it.
fl 8. No person shall be held to
answer for a criminal offense, unless
on an indictment of a grand jury,
except in cases in which the punish
ment is by fine, or imprisonment
otherwise than in the penitentiary,
in cases of impeachment, and in
cases arising in the army and navy,
or in the militia when in actual ser
vice in time of war or public danger.
| 9. In all criminal prosecutions
the accused shall have the right to
appear and defend in person and by
counsel; to demand the nature and
cause of the accusation, and have a
copy thereof; to meet the witnesses
face to face, and to have process
to compel the attendance of witnesses
in his behalf, and a« speedy public
trial by an impartial jury of the
county or district in which the of
fence is alleged to have been com
mitted. fl 10. No person shall be com
pelled in any criminal case to give
evidence against himself, or be twice
put in jeopardy for the same offence.
ff 11. All penalties shall be pro
portioned to the nature of the
offense; and no conviction shall
work corruption of blood or forfei
ture of estate; nor shall any person
be transported out of the state for
any offense committed within the
same, nor shall cruel and unusual
punishment be inflicted.
fl 12. No person shall be imprison
ed for debt, arising out of, or found
ed on a contract express or implied,
except in cases where there is strong
presumption of fraud.
ffl3. Private property shall not be
taken or damaged for public use
without just compensation. Such
compensation when not made by
the state, shall be ascertained by a
jury as shall be prescribed by law.
The fee of land taken for railroad

90

BILL OF RIGHTS

Thursday]

MASON REPORT

[June 22:

tracks, without consent of the owners
thereof, shall remain in such owners,
subject to the use for which it was
taken. f 14. No ex post facto law, or law
impairing the obligation of con
tracts, or making any irrevocable
grant of special privileges or im
munities, shall be passed.
ff 15. The military shall be in
strict subordination to the civil
power. fl 16. No soldier shall in time of
peace be quartered in any house
without the consent of the owner;
nor in time of war except in the man
ner prescribed by law.
<[ 17. The people have a right to
assemble in a peaceable manner to
consult + for the common good, to
make known their opinions to their
representatives, and to apply for a
redress of grievances.
^ 18. All elections shall be free
and there shall be no hindrance or
impediment to the right of a quali
fied voter to exercise his franchise.
ft 19. Treason against the state
shall consist only in levying war
against the state, or in adhering to
its enemies giving them aid and com
fort. No person shall be convicted
of treason, unless on the testimony
of two witnesses to the same overt
act, or on confession in open court.
IT 20. The writ of error shall be a
writ of right in all cases of felony,
and in all capital cases shall operate
as a supersedeas to stay the execution
of the sentence of death until the
further order of the supreme court
in the premises.
1f 21. The privilege of the debtor
to enjoy the necessary comforts of
life shall be recognized by whole
some laws, exempting a reasonable
amount of property from seizure or
sale for the payment of any debts
or liability.
fl 2 2. Aliens, who are, or may
hereafter become bona fide residents
of this state, shall enjoy the same
rights in respect to the possession,

enjoyment and inheritance of prop
erty of native born citizens.
If 2 3. Every person ought to find
a certain remedy in the laws for all
injuries and wrongs which he may
receive in his person, property or
reputation; he ought to obtain, by
law, right and justice freely and
without being obliged to purchase it,.
completely and without denial,
promptly and without delay.
ff 2 4. A frequent recurrence to the-
fundamental principles of civil
government is absolutely necessary
to preserve the blessings of liberty.
fl 2 5. The powers of the govern
ment of this State are divided into
three distinct departments, the legis
lative, executive and judicial; and
no person, or collection of persons,
being one of these departments, shall
exercise any power properly belong
ing to either of the others, except
as hereinafter expressly directed or
permitted. 1f 2 6. This enumeration of rights
shall not be construed to impair or
deny others retained by the people,
and all powers not herein delegated
remain with the people.
Mr. WOOLWORTH. Mr. Presi
dent, I move that the report be ac
cepted and ordered printed.
The motion was agreed to.
Mr. WOOLWORTH. Mr. Presi
dent, the Committee on Executive
agree to submit the following report,
and they ask of the Convention to
adopt the article in the Constitution.
I move that the report be accepted
and 100 copies ordered printed.
Motion agreed to.
Bill of Rights.
Mr. WOOLWORTH. Mr Presi
dent, if it is in order. I move that
the Bill of Rights be made the special
order for two o'clock for to-morrow.
Mr. MASON. Mr. President, be-

BILL OF RIGHTS

91

Thursday]

WOOL WORTH— W AKELEY -LA KE

[June 22

fore that motion is put I would like
to inquire if that would give sufficient
time for the printer?
Mr. WOOLWORTH. I supposed
we would get them to-morrow. I
am willing to set it for Monday, at
two o'clock.
Mr. MASON. If necessary, and the
printing can be done, I would favor
the consideration of the article to
morrow afternoon. Perhaps the or
der might be made, and if the print
ing is not done we can reconsider the
hour. Mr. KIRKPATRICK. I hope the
gentleman from Douglas (Mr. Wool-
worth) who is the Chairman of the
Committee on Executive, will let this
go over for a short time. I hope
those gentlemen who are ready to re
port will not press their business
until the other Committees can get
together and report. I would like
him to say Monday afternoon.
Mr. WOOLWORTH. All I desire
is to facilitate the business of the
Convention as rapidly as possible.
The PRESIDENT. ' Gentlemen;
the question is upon the motion for
to-morrow. Mr. MASON. I would not insist
upon it if any member of the House
desired to be absent. But I hope the
order may be made. If it should so
happen that the business of Com
mittees was more important, the or
der could be continued.
Mr. WAKELEY. I am opposed,
at this time, to making this article
a special order for any day. Some
thirty other standing Committees, all
of whom have important work in
hand, have yet to report; and until
the business is more advanced than

at this time, I do not think it wise
to make any subject a special order
for any particular time. I think we
will only retard business by so doing.
There will be ample time hereafter,
when we see what will be the earli
est leisure the Convention will
have to go into it.
Mr. LAKE. I agree with my col
league (Mr. Wakeley) entirely in this
that it will be best to wait until the
printed report is laid upon our tables,
and we have an opportunity to scan
it; then we can determine better
what time we prefer to take the mat
ter up. Then we can act intelligently
as to the time we would prefer to
consider the subject matter of the re
port. I, myself, for one can say I
shall be quite busy between now and
the time the gentleman from Otoe
(Mr. Mason) has selected for the con
sideration of this article*,, and I much
prefer, if he has not some good rea
son to the contrary, that it should be
postponed to the time indicated by
my colleague (Mr. Woolworth), who
first requested the extension of time
till Monday afternoon.
Mr. MASON. I desire to say it
was not my motion to consider to
morrow, but the gentleman from
Douglas (Mr. Woolworth) whose
motion I seconded.
Mr. NEWSOM. I hope the policy
indicated by this motion will not pre
vail for this reason. It is readily
to be seen that the gentlemen com
posing this Committee of Bill of
Rights are the only gentlemen who
have considered this question, and
their views and opinions are the only
ones which are matured, therefore
they are the only persons qualified

92

STATE CAPITOL— MASONIC LODGE

Thursday]

NEWSOM— CASSELL— PRESIDENT

[June 22

to consider that question immediate
ly. They have considered the sub
ject matter fully, and none others
have. I hope it will not prevail, be
cause if it does these gentlemen will
carry their ideas. I am not in fa
vor of an article presented by any
Committee being the' article to be
adopted by this Convention. I want
a large discussion of all questions be
fore this body, and we ought to have
more time. I prefer that this thing
lay over and no time set, so this re
port can be printed and members
have time to consider it.
Mr. WOOLWORTH. Mr. Presi
dent, I will withdraw my motion
with the permission of my second.
Motion withdrawn.
Mr. CASSELL. Mr. President. I
have a report to present.
The Secretary read the report as
follows: The Committee on State Institu
tions and Public Buildings, respect
fully submit the following report:
That the report "of the State Au
ditor, on expenditures on State Cap
itol and Grounds, be reported back
to the Convention, with a recommen
dation that it be referred to the Com
mittee on Public Accounts and Ex
penditures. J. N. CASSELL. Ch. Com.
Report adopted and referred to
Committee on Public Accounts and
Expenditures. Adjournment.
Mr. MYERS. Mr. President, I
move the Convention do now ad
journ. Mr. MASON. I would suggest we
adjourn untill to-morrow morning.

Mr. MYERS. I withdraw my mo
tion. Mr. WAKELEY. Mr. President,
I would inquire if we have passed
through the regular business.
The PRESIDENT. We are under
the order of "Resolutions."
Mr. CAMPBELL. I move we ad
journ till to-morrow morning.
Mr. MAXWELL. Mr. President, I
would desire to go through the whole
business before the Convention.
Mr. CAMPBELL. I withdraw my
motion. The PRESIDENT. I have a lit
tle matter to lay before the mem
bers. The Masonic Grand Lodge
have made application for the use of
this hall this evening. If there is
no opposition, I will grant permis
sion. (Agreed. Agreed.)
Mr. PHILPOTT. Mr. President, I
have a resolution I desire to offer,
if I have leave.
The PRESIDENT. Has he leave?
("No", "No", "Yes.")
The PRESIDENT. Out of courtesy
to the gentleman from Lancaster
(Mr. Philpott) —
Mr. MYERS. I call for the read
ing of the order of business, Mr.
President. The PRESIDENT (reading) "Re
ports from standing Committees.
Reports from select Committees.
Presentation of resolutions and
propositions to amend the Constitu
tion." The question is upon adjournment.
The Convention divided. Motion
to adjourn lost.
Mr. MAXWELL. Mr. President, I
offer a proposition to amend the Con
stitution.

SCHOOLS— PUBLIC LIBRARY

93

Thursday]

MAX WELL— PHILPOTT

The Secretary reads the proposi
tion as follows:
The Legislature shall provide a
thorough and efficient system of free
Schools whereby all children of this
state shall have a good common
school education.
2nd. The Legislature shall pro
vide for the establishment, and
maintenance of the public library in
each township, precinct and ward,
and all monies belonging to the pub
lic derived from fines, penalties
or forfeitures shall be apportioned to
the support of such libraries.
3rd. There shall be elected four
regents of the University, whose term
of office shall be four years; that
immediately after the first election
under this Constitution, said regents
shall be classified by lot so that one
shall hold for one year: one for two
years: one for three years and one
for four years. And thereafter, one
of said regents shall be elected at
the annual election in each year.
When a vacancy occurs in the office
of Regents, the Governor shall ap
point to fill the vacancy until the next
general election. The Chief Justice
Of. the Supreme Court shall be; Ex-
Officio, a member of the board of
Regents. 4th. The Regents of the Univer
sity, and their successors in office,
shall constitute a body corporate, by
the name and title of "The Regents
of the University of Nebraska."
The Board of Regents shall have
the supervision of the University, and
the direction and control of the Uni
versity fund, and all expenses there
of. The Legislature shall provide, for
the establishment, support and main
tenance of an Agricultural College
for instruction in practical agricul
ture, and the natural sciences con
nected therewith.
5th. The proceeds from the sale
of all lands that have been, or here
after may be granted hy the United
States to the State for educational

purposes, shall be held perpetually
in trust by the State, and shall be
and remain a perpetual fund which
shall not be diminished; the inter
est and income of which shall be in
violably appropriated, and annually
applied to the support of the schools
for which the grant was made.
. 6th. All lands, the title to which
shall fail from a defect of heirs shall
escheat to the State, and the inter
est on the proceeds of the sale shall
be appropriated, exclusively to the
support of common schools.
Referred to Committee on Educa
tion. Mr. PHILPOTT. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That so much of the
present Constitution as relates to
the judicial department of the Gov
ernment, be referred to the Judicial
Committee. 2nd. That so much as relates to
the Executive department, to the Ex
ecutive Committee.
3rd. That so much as relates to
the Legislative department to the
Legislative Committee.
4th. That so much as relates to
Finance, to the Committee on Rev
enue and Finance.
5th. That so much as relates to
Eminent Domain, to the Committee
on State Lands, other than School
Lands. 6th. That so much as relates to
Education, to the Committee on Ed
ucation, School Funds and Lands.
7th. That so much as relates to
Corporations in sections 1, 2 and 3
under that title, be referred to the
Committee on Miscellaneous Corpor
ations, and that section 4 of the
same title be referred to Committee
on Municipal Corporations.
8th. That so much as relates to
amendments be referred to the Com
mittee on Future Amendments.
9th. That so much as relates to

94

ASSESSMENT— CAPITAL PUNISHMENT

Thursday]

SPRAGUE— KILBURN— MOORE

[June 22

Boundaries, be referred to the Com
mittee on Federal Relations.
10th. That so much as relates
to the title"Schedule" be referred to
the Committee on Schedule.
And that the said Committees be,
and they are hereby instructed to
consider the same, and to prepare
and report such amendments as in
their judgment should be made to
the Constitution.
Mr. PHILPOTT. The object of
that resolution, Mr. President, is,
that we may bring order out of what
otherwise may he confusion. When
the Committees bring in their vari
ous reports, we may be able to as
certain just how we are getting along
in the formation of the Constitution.
It seems to me it ought to be adopt
ed. Resolution adopted.
Mr. SPRAGUE. Mr. President, I
wish to offer a resolution.
The resolution is read by the Sec
retary as follows:
WHEREAS: Under the Revenue
laws now in force in this State, it
not infrequently occurs that the as
sessment and valuation of the real
estate of different portions of the
same county, is very disproportionate
and unequal, therefore.
RESOLVED: That the Revenue
and Finance Committee be instructed
to inquire into the propriety of re
porting to this Convention a proposi
tion to be engrafted in the Consti
tution now being made, requiring
that the assessment and valuation of
all the real estate of any one county
shall be made by one man, and not
re-valued oftener than once in three
years. Referred to the Committee on Rev
enue and Finance. Adjournment.
Mr. ABBOTT. Mr. President, I
move we adjourn until ten o'clock
to-morrow morning.

The Convention divided and the
motion was lost.
Resolutions Again.
Mr. KILBURN. Mr. President, I
wish to offer a resolution.
The Secretary reads the resolution
as follows:
RESOLVED: That the property
of the State, counties, and other mu
nicipal corporations, both real and
personal, and such other property,
as may be used exclusively for ag
ricultural and horticultural societies,
for school, religious, cemetery and
charitable purposes, may be exempt
ed from taxation; but such exemp
tion shall be only by general law.
PROVIDED: That not more than
ten thousand dollars of property of
any church corporation shall be ex
empted from taxation. In the as
sessment of real estate incumbered
by public easement, any depreciation
occasioned by such easement may be
deducted in the valuation, of such
property. Referred to Committee on Bill of
Rights. Mr. MOORE. Mr. President, I
wish to offer a resolution.
The Secretary reads the resolution
as follows:
RESOLVED: That the Committee
on Bill of Rights take into consider
ation the propriety of placing in the
Constitution a provision prohibiting
capital punishment in this State, and
substituting therefor, imprisonment
for life, said provision to remain in
full force for the term of five years
from the adoption of the Constitu
tion. Referred to the Committee on Bill
of Rights. Adjournment Again.
Mr. CAMPBELL. Mr. President.I
move we adjourn until to-morrow
morning at ten o'clock.
The Convention divided, and the

JUDICIAL ELECTION— STATE OFFICES

95

Thursday]

CURTIS-WAKELEY— ESTABROOK

[June 22

motion was lost.
Resolutions Again.
Mr. CURTIS. Mr. President, I
have a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Grand
Jury system in this State be abolish
ed. Referred to the Committee on Bill
of Rights. Adjournment Again.
Mr. LEY. Mr. President, I move
we adjourn until to-morrow morning
at ten o'clock.
The Convention divided and the
motion lost. Resolutions Again.
Mr. WAKELEY. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
WHEREAS: It is desirable that
the choice of Judges should be re
moved as far as practicable from
party or political influence.
RESOLVED: That it should be
provided in the Constitution, that
Judges shall not be chosen at any
general election, or within sixty days
next before, or next after a general
election. 2nd. RESOLVED: That provision
should be made, authorizing the Leg
islature to establish in cities having
a population of over ten thousand,
municipal courts with limited civil
and criminal jurisdiction.
Referred to the Committee on Ju
diciary. Mr. WILSON. Mr. President, I
desire to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That no person shall
be eligible to the office of governor,

or lieutenant governor, who shall not
have attained the age of 30 years,
and been for five years next preceed-
ing his election, a citizen of the Unit
ed States and of this State. Neither
the governor, lieutenant governor,
auditor of public accounts, secretary
of state, superintendent of public in
struction nor attorney general shall
be eligible to any other office during
the period for which he shall have
been elected.
Referred to Executive Commit
tee. Adjournment Again.
Mr. STEWART. I move we ad
journ until to-morrow morning at
ten o'clock.
Mr. ESTABROOK. Mr. President,
I would like to offer a resolution be
fore the motion to adjourn is put, if
i may have leave. "(Leave,"
"Leave.") The Secretary read the resolution
as follows:
RESOLVED: That the acting
Governor be requested to furnish, for
the use of this Convention a state
ment of all the proceedings had in re
lation to the selection of the Agricul
tural College Lands, so far as such
proceedings appear among the re
cords of the Executive office; or so
far as they may have come to his
knowledge from other sources.
Mr. ESTABROOK. I move the ad
option of the resolution.
The motion was agreed to.
Mr. NELIGH. I ask leave to offer
a resolution. ("Leave.")
The Secretary read the resolution
as follows:
WHEREAS: That the State of
Nebraska is nearly entirely depend
ent on its agricultural resources, and
as the products of its soil requires
cheap and easy transportation to its
different markets; and Whereas rail
roads are more convenient and su-

96

RAILROAD BONDS— PRINTING

Friday]

BO YD-PHrLPOTT— CAMPBELL

[June 2$

perior than other class of communi
cation, therefore be it
RESOLVED: That the Constitu
tion contain under its appropriate ar
ticle, a section No — , that counties,
precincts, cities and towns may issue
bonds for the encouragment of rail
roads by stock, or donation, not ex
ceeding 15 per cent, of its assessed
valuation said bonds shall in no case
exceed 8 per cent.
Mr. BOYD. I move the resolution
be referred to Committee number 12,
(County and Municipal Indebted
ness.) The resolution was so referred
NEM. CON.
The PRESIDENT. The question is
upon the motion of the gentleman
from Pawnee, (Mr. Stewart.) to ad
journ until to-morrow morning at
ten o'clock.
The motion to adjourn was agreed
to. So the Convention (at twelve
o'clock and four minutes) adjourned.

NINTH DAY.
Friday June 23, 1871.
The Convention met at ten o'clock
a. m. and was called to order by the
President. Prayer.
Prayer was offered by Rev. L. B.
Fifield, of Lincoln, as follows:
Oh Lord, we bless Thee for Thy
loving kindness and for Thy truth.
Wilt Thou be pleased in peace" and
safety to keep us this day. Wilt Thou
send divine wisdom into all the
earth; with new songs may men
praise Thee, and may sin shrink af
frighted from our hearts and truth
be foremost everywhere. Amen.

Leave of Absence.
Mr. SCOFIELD. I ask leave of
absence for Mr. Woolworth until to
morrow morning.
Leave granted NEM. CON.
Mr. PHILPOTT. I ask leave of
absence for Mr. Robinson until to
morrow morning.
Leave granted NEM. CON.
Reading of Journal.
The Secretary read the last day's
proceedings which were approved.
Mr. PHILPOTT. Mr. President, I
wish to offer a resolution with refer
ence to the Rev. Mr. Fifield, who has
been acting as Chaplain.
Mr. MYERS. Mr President, let
it come under the regular order of
the day.
Reports from Standing Committees.
The PRESIDENT. The reports of
standing committee will be called in
order. Mr. CAMPBELL. Mr. President, I
wish to submit a report from the
Committee on Printing and Binding.
The Secretary read the report as
follows: Mr. President. Your Committee
on Printing and Binding, to whom
was referred the resolution to adver
tise for bids for incidental printing
beg leave to report that the Commit
tee has performed said duty.
J. C. CAMPBELL, Chairman.
Report received. Resolutions.
Mr. STEWART. Mr. President, I
have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED: That the Constitu
tion be so amended that there shall
be five districts of the Circuit Court

JUDICIAL DISTRICTS— WORD "MALE'

97

Friday]

STEVENSON— PARCHEN— PHILPOTT

[June 23

in this State, as follows:
First District — Richardson, Paw
nee, Johnson, Gage, Jefferson, Thay
er, Nuckolls, Webster, Franklin, Lin
coln, Grant and Jackson counties.
Second District — Otoe, Nemaha
and Lancaster counties.
Third District — Cass, Sarpy, Saun
ders, Seward, Saline, Butler, Polk,
York, Fillmore, Clay, Hamilton, Ad
ams and Kearney counties.
Fourth District — Douglas and
Dodge counties.
Fifth District — Washington, Burt,
Cuming, Dakota, Dixon, Cedar,
L'Eau qui Court, Holt, Pierce,
Wayne, Madison, Stanton, Colfax,
Platte, Merrick, Hall, Boone, Greeley,
Howard, Buffalo, Sherman, Valley,
Dawson, Harrison, Monroe, Taylor,
Lyon and Cheyenne counties, and
that judges for the above districts
be elected at the same time that the
Constitution is submitted for adop
tion or rejection.
Mr. STEWART. Mr. President, I
move the report be referred to the
Judiciary Committee.
Motion agreed to.
Mr. STEVENSON. Mr. President,
I wish to offer a resolution.
The Secretary read the resolution
as follows:
WHEREAS; God in His divine
goodness, after He had created man
and placed him in the garden of
Eden, saw that he was lonely and
down hearted, whereupon He created
woman in order that he might have
a partner in the trials and tribula
tions of this life; therefore be it
RESOLVED: That in order to
perpetuate that divinity intended
partnership, to secure domestic tran
quility to ourselves and posterity,
that the word "male" be never strick
en from the Constitution of the State
of Nebraska.
Mr. STEVENSON. Mr. President,
I move its reference to the Committee

on Suffrage.
Motion agreed to.
Mr. PARCHEN. Mr. President, I
offer this resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Sergeant-
at-arms be ordered to make out and
have printed for the use of the Con
vention 200 copies of an accurate
statement of the name, age, occupa
tion, place of birth, postoffice, and
whether married or single of the del
egates and officers of this Convention.
Mr. HASCALL. I move its refer
ence to the Sergeant-at-arms.
Motion agreed to.
Mr. WAKELEY. I move the ages
of unmarried persons be omitted. .
Mr. McCANN. Mr. President,
This may be treated as a matter of
levity, but it has an object in view.
I would oppose the motion, and state
this object is to arrive at the 'ages.
Mr. PHILPOTT. Mr. President, I
have a resolution.
The Secretary read the resolution
as follows:
WHEREAS: It is becoming in a
people to recognize Almighty God in
their civil and political capacities as
a sovereign society, and eminently
proper that the delegates of the peo
ple who are assembled to frame for
such people a fundamental law for
their government, should seek and
ask for the guidance and blessings
of Him who presides over the destiny
of nations; and
WHEREAS: L. B. Fifield has
thus far through the proceedings of
this Convention daily waited upon
the same, and acted for it in the
capacity of chaplain; therefore be it
RESOLVED: That the Rev. L. B.
Fifield for his said services receive
the thanks of this Convention, and
that he be elected by acclamation,
chaplain of the same; and that he be

98

ELECTION OF CHAPLAIN

Friday]

PHILPOTT— MAXWELL— KIRKPATRICK

[June 23

paid for his services as such the
same pay per diem allowed members
of the Convention.
Mr. GRENELL. Mr. President, I
see no necessity for this action, for
the Convention has already taken
action upon the matter.
Mr. PHILPOTT. Mr. President,
the object of the resolution is this —
It is true some action was taken by
the Convention with regard to this
matter, but it was merely the pas
sing of a resolution asking that the
clergymen of the city of Lincoln
meet and arrange for some minister
to perform this duty. Now, I am in
formed that this meeting was not
held, for some reason. Through the
kindness of Mr. Fifield we have not
been left without a chaplain, but he
has come here and opened the exer
cises with prayer, each day. I think
we have no right to ask him to do
this for nothing. We are able to
pay for this service, and we ought
to pay for it.
Mr. GRENELL. I would only ask
the gentleman from Lancaster (Mr.
Philpott), to amend the preamble
so that it show why this action is
taken. Mr. MAXWELL. Mr. President,
I certainly do not oppose the propo
sition to pay a chaplain but, at the
same time, there is no evidence be
fore this Convention that the other
clergymen refuse to act. Has there
been a Committee appointed to wait
upon them and inform them of the
action of the Convention, and they
have refused to act? Now, then, if
we vote this resolution, it in effect,
says that the other clergymen of this

city have refused to comply with the
request of the Convention. It seems
to me that, by that vote, we are
placing ourselves in a false position.
Until we know they refuse to act,
we have no right to vote in this
way. If Mr. Fifield is the only man
who will officiate, then we should
vote to pay him. I hope the resolu
tion will not be adopted until we
know the other clergymen refuse to
act. Mr. PHILPOTT. Mr. President,
by leave of my second I will with
draw my motion until the matter is
inquired into, although I am certain
I am right about the action taken by
the clergymen of this city; but yet,
not to reflect upon the clergy I will
withdraw for the present.
Mr. KIRKPATRICK. It will be
remembered there was early action
taken by this Convention with regard
to a Chaplain. It was deemed by this
Convention a courtesy to all the
members of the clergy of this city, to
ask them to arrange the matter of
officiating here, among themselves.
I recollect seeing in the papers of this
city, a call, to his brother clergy
men, signed by Mr. Fifield, and that
two ministers have officiated here
and perhaps three. It may be there
has been action taken, and that our
present Chaplain is merely doing his
part of the duty. I am opposed to
this Convention going back on its
own action.
Mr. CAMPBELL. Mr. President, I
rise to a point of order. Is there a
question before the house?
The PRESIDENT. There is.
Mr. CASSELL. I believe the resolu
tion invited the ministers to offlci-

ELECTION OF CHAPLAIN

99

Friday]

MYERS— PHILPOTT--STEVENSON

[June 23

ate but there was no Committee ap
pointed to invite them, and they have
had no official notification of this res
olution. Mr. MYERS. Mr. President, I,
for one, do not think it is right for
this Convention to go about begging
this service. I think it is right for
this Convention to employ a minister
to open our sessions with religious
•exercises, and pay him for it. We
have invited the clergy of this city to
make arrangements among them
selves, by which we will have prayer
here, no one has responded to that
invitation except Father Fifield, ex
cept one gentleman who officiated at
the request of the President. Now
I am in favor of having prayer, as
is the custom in bodies of this char
acter, and that our Chaplain shall
be an officer here, and have the
rights of the floor. Let us have our
minister, and not go around here
hegging these services.
Mr. PHILPOTT. Mr. President, I
will say that I have amended my res
olution. I will take the responsibil
ity of it, and I offer it as amended.
The PRESIDENT. The Secretary
will read the resolution as amended.
The Secretary read the resolution
as follows:
.WHEREAS: It is becoming in a
people to recognize Almighty God,
in their civil and religious capacities
as a sovereign society, and eminently
proper that the delegates of a peo
ple who are assembled to frame for
such people a fundamental law for
their • government, should seek and
ask for the guidance and blessings
•of Him who presides over the destiny
•of Nations;
AND WHEREAS the ministers of
Lincoln, though requested by the

Convention, have not arranged for
prayer for this Convention,
AND WHEREAS L. B. Fifield has,
thus far through the proceedings of
this Convention, daily waited upon
the same and acted for it in the ca
pacity of Chaplain, therefore
BE IT RESOLVED: That Rev. L.
B. Fifield, for his said services, re
ceive the thanks of this Convention,
and that he be elected by acclama
tion, Chaplain of the same and that
he be paid for his services as such,
the same pay per diem, allowed mem
bers of this Convention.
Mr. STEVENSON. Mr. Presi
dent if we are to elect a Chaplain for
this Convention I would move that
the resolution be amended, and have
him elected by ballot. There may be
some difference of opinion as to who
shall officiate. Therefore I move we
proceed to elect a Chaplain by bal
lot. Mr. MYERS. Mr. President I de
sire to speak. The clergymen of the
town were requested by this Conven
tion to appear here and officiate at
the opening of our sessions. The no
tice was duly published, but none
came save the Rev. Mr. Fifield. He
came here not expecting pay, and has
continued to officiate as Chaplain of
this body without money and without
price. The PRESIDENT. I will say,
gentlemen, that I have inquired into
the matter, and this gentleman (Mr.
Fifield) is the only one who seemed
disposed to officiate. The question
is upon the amendment.
Mr. ABBOTT. Mr. President, I
think it is eminently proper that this
Convention should open with prayer,
and I am in favor of the resolution.
The PRESIDENT. Will not the

100

CHAPLAIN— PRINTING JOURNAL

Friday]

ESTA BROOK— LAKE— W AKELEY

[June 23

gentleman from Lancaster (Mr. Phil
pott) amend his resolution so as to
elect by ballot?
Mr. PHILPOTT. Yes sir.
Mr. THOMAS. I would like to
know, Mr. President — how the reso
lution will then read.
Mr. MYERS. Mr. President, I
will move to strike out all after the
word "Resolved" and that we now
proceed to the election of a Chaplain.
Motion agreed to.
The PRESIDENT. The question is
upon the resolution as amended.
Mr. TOWLE. Mr. President, I
move that we strike out all the
"Whereaseas's." The PRESIDENT. The question is
upon the motion of the gentleman
from Richardson, (Mr. Towle) to
strike out all the wherease's — the
preamble. Motion agreed to.
The PRESIDENT. The question
is upon the adoption of the resolution
as amended. The "Ayes" and
"Nays" have been called for.
Mr. THOMAS. I withdraw the de
mand for the "ayes" and "nays"
The Secretary read the resolution
as amended as follows:
RESOLVED: That this Convention
do now proceed to the election of a
Chaplain. The resolution was agreed to.
The vote was taken with the fol
lowing result.
Rev. Fifield  43
Rev. Peck  1
Rev. Lemon  1
Rev. Dungan  1
Rev. Young  1
Mr. Philpott  1
Blank  1
Total  49

The ' PRESIDENT. Rev. L. B. Fi
field having received forty-three
votes, is elected.
Printing of Reports.
Mr. ESTABROOK. Mr. President,
this was laid on my desk, it is the
report of the Executive Committee.
It appears to have been printed in
newspaper form. I think that by
the motion to print, it was intended
to be printed in bill form in order
that it might be amended. I move
you, Mr. President, that this report
and all other reports from Commit
tees as articles of the Constitution,
be printed in bill form.
Mr. LAKE. The report -ought also
to be corrected as the heading reads
"Report from the JUDICIARY Com
mittee." It should be the EXECU
TIVE. The motion of Mr. Estabrook was
agreed to.
Mr. WAKELEY. Mr. President,
I offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the journal of
the proceedings of each day shall be
printed in time to allow a copy to
be placed on the desk of members
before the opening of the session on
the succeeding day.
The PRESIDENT. The question
is upon the adoption of the resolu
tion. Mr. WAKELEY. The object I
have in offering this resolution is
this: Considerable time is occupied
each morning by the reading of the
journal, and this time may be saved
by having the journal printed and
placed upon the desks, and it will
give us a better chance to make the

PRINTING DAILY JOURNAL

101

Friday]

L AKE— ES TABROOK— KIRKPATRICK

[June 23

necessary corrections. I don't think
it would cost much.
Mr. LAKE. It seems to me we
would incur a good deal of expense
if we should adopt this plan. It
seems to me if we are all here at
the reading of the journal in the
morning, each one can see whether
the journal is correct in that which
he has offered and save the expense
of printing. I would like to know if
the gentleman who introduced the
resolution is informed what the ex
pense would be?
Mr. WAKELEY. I am not so in
formed, but I would suggest that it
might be referred to the Committee
on Printing to ascertain the cost.
Mr. KIRKPATRICK. Mr. Presi
dent, if the resolution is passed and
the plan of the gentleman from
Douglas (Mr. Wakeley) is followed,
it will conflict with the rule of the
Convention that the journal shall be
read each morning.
Mr. CAMPBELL. Mr. President,
I do not see any necessity for refer
ring that to the Committee on Print
ing. That Committee is now pretty
well informed, it will cost $25 to
$30 per day. If the Convention sees
fit to go into that additional expense,
they can do so now without referring
to the Committee.
Mr. ESTABROOK. Perhaps "it
might cost $25 per day if all the res
olutions offered here were printed
entire, which would not be necessary,
but that there could be a saving of
time to compensate for the addition
al expense. I have no doubt what
ever, that it would be much more
convenient, and that the record could
be made more accurate. The jour

nal is read now, members' attention
is turned away, and they do not
catch everything. If it is laid on our
table every morning we can ascertain
whether it is correct. I move this
amendment, that is shall be done
under the direction of the Printing
Committee and that they strike
out all that is not necessary to be
printed, print simply notes or a
sketch of the journal and that they
exclude all they do not think neces
sary. Mr. KIRKPATRICK. I do not
agree that somebody shall be em
powered to revise and curtail our
part of the journal: I think the res
olutions proposed are the most im
portant part of the journal; very often
I cannot hear the resolution read, but
I will state right here this whole
thing is imperfect. We ought to cor
rect the journal. Suppose we adjourn
this afternoon, the clerk then has to
make up the journal, and the Presi
dent examines to see if correct. It
then goes to the Committee on Print
ing, and they will decide what por
tion of it is to be printed, and it
comes back the day after to-morrow.
It cannot be laid on our table to-mor
row morning and when we do get
it it is no use to us. I have been in
bodies where this has been tried,
and it never amounted to any
thing. Mr. TOWLE. Mr. President, It
appears to me this resolution should
not pass the Convention. The idea
advanced by the mover of the resolu
tion was simply that it should be
passed as a mere matter of economy.
Now it has been told us by one gen
tleman on the Printing Committee

102

PRINTING DAILY JOURNAL

Friday]

TOWLE-NEWSOM-MASON

[June 23

that the cost would be $25 to $30
each journal, and the query is
whether we had better sit half an
hour to hear the journal read, which
will come directly from the lips of
the clerk, and we shall know if it is
perfectly true, whether we shall
spend half an hour of the whole
house hearing that journal read or
whether we shall spend this money
in getting it printed. When we ap
prove the journal what do we ap
prove, the printed copy or the journal
as it exists in the notes of the clerk?
Then, suppose, in the amendment of
the gentleman from Douglas (Mr. Es
tabrook), which destroys, to a certain
extent, the whole character and prin
ciple which was involved in the first
resolution, which is that it should
be only a transcript, and only an ab
stract — we pass upon it not knowing
the contents of the abstract, and cer
tainly not the original journal, so
that the object of the first resolution
is gone, and we are expending a vast
amount of money for adopting the
amendment and knowing scarcely
anything whatever in relation to the
proceedings. It now takes the clerks
until nearly twelve and one o'clock
at night to make up these journals.
If we are going to have this print
ed, or an abstract, it would take an
additional clerk to prepare that jour
nal to be printed the next morn
ing. It would entail a vast amount
of labor upon these clerks, or it
would necessitate the immediate em
ployment of other clerks, which I do
not believe in on account of the ex
pense. I am, therefore, opposed
to the resolution.
Mr. NEWSOM. I understand the

question to be on the resolution.
Mr. TOWLE. I do not understand
that. I understood the amendment
was simply that the printing of the
journal should be under the direc
tion of the Chairman of the Com
mittee on Printing.
The PRESIDENT. That was the
amendment. Mr. MASON. I desire to enquire
what the Chair stated the question
was before the house.
The PRESIDENT. The motion of
the gentleman from Douglas (Mr.
Estabrook) was to commit the reso
lution to the Standing Committee.
Mr. MASON. Permit me to enquire
if a motion to commit does not take
precedence of the motion to amend?
The PRESIDENT. Yes sir, but I
did not understand there was a mo
tion to commit.
Mr. MASON. The gentleman from
Douglas (Mr. Wakeley) made the
motion to commit. He moved to
commit the resolution to the Com
mittee on Printing.
The PRESIDENT. I will read you
what I have here. Mr. Estabrook
moved to amend that it be done un
der the direction of the Committee
on Printing.
Mr. MASON. I am not responsible
for the notes of Mr. President. Mr.
Wakeley moved to commit the reso
lution to the Committee on Printing.
Afterward the gentleman from Doug
las (Mr. Estabrook) moved to
amend. I now enquire whether the
question is not on the motion to com
mit. The PRESIDENT. I did not un
derstand the gentleman from Doug-

RAILROADS— APPORTIONMENT— NTL. CAPITOL 103

Friday]

VIFQUAIN-NELIGH-GRENELL

[June 23

las (Mr. Wakeley) to make the mo
tion to commit.
Mr. WAKELEY. My best recollec
tion is that I did not make the mo
tion. I suggested that it should be
referred to the Committee on Print
ing for that purpose. I do not think
I made a motion.
Mr. MASON. I seconded the mo
tion and so understood it. I move
to commit the whole subject to the
Committee on Printing.
The motion was agreed to.
Mr. VIFQUAIN. I have a resolu
tion. The resolution was read by the
Secretary as follows:
WHEREAS; It is dangerous to the
safety of our institutions to allow
Railroad monopolies to get control
of all the roads in our State, and
WHEREAS; by the immense land
grants given from our State by the
Federal Government to the Union
Pacific and B. & M. R. R., it is evi
dent that said two corporations are
in a fair way to control the traffic
of this State, be it hereby
RESOLVED: That the Railroad
Committee are requested to submit
to this Convention, at their earliest
convenience a section to be incorpor
ated in our Constitution, specially
calculated to reach these two giant
corporations, and thereby save the
welfare of our people in the future.
Mr. VIFQUAIN. I move the adop
tion of the resolution.
Mr. HASCALL. Mr. President, I
claim it is a proposition which ought
to be referred to the Committee on
Railroads. I move its reference to
that Committee.
The motion was agreed to.
Mr. NELIGH. Mr. President, I
desire to offer a resolution.

The Secretary read the, resolution
as follows:
WHEREAS; That when we en
tered the Union of States our Con
stitution provided that the Legisla
ture should consist of a Senate of
thirteen members, and a House of
Representatives of thirty members,
with only a population of about forty
thousand, and mostly confined to
twenty counties, and
WHEREAS; We- have now a popu
lation of about one hundred and
forty thousand and distribution is
about forty-two organized counties
therefore RESOLVED: That the Constitu
tion be so amended that the Legis
lature consist of a Senate of not less
than twenty-seven members and a
House of Representatives not less
than eighty-one members.
Mr. WAKELY. Mr. President, I
move its reference to the Legislative
Committee. The motion was agreed to.
Mr. GRENELL. Mr. President, I
beg leave to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That in case the
Government of the United States
shall at any time hereafter desire to
remove the National Capitol to with
in this State the Legislature may
cede to the United States, jurisdic
tion over any district not exceeding
one hundred square miles, wherever
the government of the United States
may select, provided such grant shall
take effect only on the removal of
the National Capitol to such district.
Mr. GRENELL. I move it be re
ferred to the Committee on Federal
Relations. Mr. WEAVER. I have a resolu
tion. The Secretary read the resolution
as follows:
RESOLVED: That the Committee

104

TAX LIMIT— RAILROADS— JUDICIARY

Friday]

WEAVER— BO YD-MANDERSON

[June 23

on Revenue and Finance be request
ed to inquire into the expediency of
inserting a clause into the Consti
tution, limiting taxes in the aggre
gate for county and State purposes
to two per cent, on the assessed val
uation of the property of the State.
Mr. WEAVER. Mr. President, I
move the resolution be referred to
the Committee on Revenue and Fi
nance. Motion agreed to.
Mr. BOYD. Mr. President, I have
a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED: That the Committee
on Judiciary be and they are here
by instructed to report to this Con
vention, whether it is competent for
this State, by its Constitution, to re
quire railroads chartered by the Gen
eral Government to have and main
tain a public office in this State
where transfers of stock shall be
made and in which shall be kept
for public inspection, books, in which
shall be recorded the amount of cap
ital stock subscribed and by whom;
the names of the owners of its stock
and the amounts owned by them
respectively; -the amount of stock
paid in and by whom; the transfers
of said stock; the amount of its
assets and liabilities, and the name
and place of the residence of officers.
Also, whether such railroad compan
ies shall be compelled to annually
make a report, under oath, to the Au
ditor of Public Accounts, of all their
acts and doings.
Mr. BOYD. Mr. President, I
move the adoption of the resolution.
Motion agreed to.
Mr. MANDERSON. Mr. Presi
dent, I desire to offer a resolution,
which I move be referred to the
Committee on Judiciary, without be
ing read.
Motion agreed to.

The following is the resolution of
Mr. Manderson.
RESOLVED: That the Commit
tee of Judiciary be instructed to take
into consideration the advisability of
embodying the following Article in
the Constitution, (filling the blanks
in section 8) under the head of "Ju
dicial Department." ARTICLE.
JUDICIAL DEPARTMENT.
SECTION 1. The Judicial powers
of the State shall be vested in one Su
preme Court, Circuit Courts, Courts
of Common Pleas, Probate Courts,
Justices of the Peace, and such in
ferior Courts as the Legislature may
from time to time establish.
Sec. 2. The Supreme Court shall
consist of three (3) Judges, any two
of which shall constitute a quorum,
and shall hold at least two terms at
the seat of Government of the
State annually, and such other terms
there and elsewhere as may be pro
vided by law.
Sec. 3. The Supreme Judges shall
be elected by the electors of the
State at large, at a special election
called for the purpose. Those first
elected shall hold their office for
three (3), six (6) and nine (9)
years; the term of each respectively
to be decided by lot, and after said
election, one Judge shall be elected
every three years. The judge having
the shortest term to serve shall be
Chief Justice during the remainder
of his term of office.
Sec. 4. The Supreme Court shall
have original jurisdiction in quo war
ranto, mandamus, habeas corpus, and
such cases of impeachment as may
be required to be tried before it, and
such appellate jurisdiction as may
be provided by law.
Sec. 5. From and after the adop
tion of this Constitution, the Judges
of the Supreme Court, shall each re
ceive a salary of $5,000.00 per an
num, payable quarterly.
Sec. 6. The Supreme Court shall by

MANDERSON 'S JUDICIARY REPORT

105

Friday]

[June 23

general rules, establish, modify and
amend its practice, and may also
make all rules that may be necessary
for the exercise of its appellate juris
diction, and have a general superin
tending control over all inferior
•courts and tribunals; shall appoint
one reporter of its decisions, and one
-clerk, who shall hold their offices
for nine years, subject to removal
by the court.
Sec. 7.. The State Circuit Court
:shall be divided into three (3) Judi
cial Circuits, in each of which the
electors thereof shall elect one Cir
cuit Judge, who shall hold his office
for the term of six years and until
his successor is qualified.
Sec. 8. The Counties of

shall constitute the 1st Judicial Cir
cuit; the Counties of  the
2nd Judicial Circuit; and the Coun
ties of  • the 3rd Judicial
Circuit. Sec. 9. The three Circuit Court
-Judges shall constitute a quorum;
they shall hold two terms each year,
in each circuit, at such times and
places as may be provided by law.
Sec. 10. The Circuit Courts shall
have like original jurisdiction with
the Supreme Court and such appel
late jurisdiction as may be provided
by law. It shall have jurisdiction by
appeal in all cases in law, where the
.amount involved is $300.00 and
over, when full security, in double
the amount of the judgment and
costs is given by the party appealing.
Sec. 11. The Circuit Judges shall
•each receive a salary of $4,000.00
per annum, payable quarterly.
Sec. 12. They shall appoint one
clerk in each Judicial Circuit who
shall hold his office for six (6) years,
unless removed by them, and shall
select one of their number as presid
ing Judge. COMMON PLEAS COURT.
Sec. 13. The Common Pleas Court
of the State shall consist in num
ber of as many as it may require

to give one to each 20,000 inhabi
tants of the State, and the Common
Pleas Districts shall be as required
by law; Provided that contiguous
counties and compact territory shall
comprise said districts; that the
county of Douglas shall constitute
one district and that they shall be
bounded by county lines. No altera
tion or change of any District shall
be made which will affect the tenure
of office of any Common Pleas Judge.
Sec. 14. There shall be elected by
the electors thereof, one Common
Pleas Judge in each Common Pleas
District, who shall hold his office for
the term of four (4) years, and re
ceive a salary of $3,000.00, payable
quarterly. Sec. 15. The original jurisdiction
of the Common Pleas Courts shall
extend to all matters, civil and crim
inal, to cases in equity and law,
where the amount involved is over
$100; and such appellate jurisdiction
as may be provided by law.
Sec. 16. The number of terms and
times and places of holding the Com
mon Pleas Courts in the different
counties forming the Common Pleas
Districts shall be as provided by
law. Sec. 17. Each Common Pleas
Court shall have one clerk; to hold
his office for four (4) years; to be
appointed by the judge thereof, and
to be subject to his removal.
Sec. 18. The Common Pleas
Judges of the State shall meet once
in two years, to, establish uniform
rules of practice in their Courts and
to modify the same.
Sec. 19. There shall be established
in each county a Probate Court,
which shall be a Court of Record,
open at all times and holden by one
Judge, elected by the voters of the
county who shall hold his office for
the term of three years and shall re
ceive such compensation, payable
out of the county Treasury or by
fees, or both, as shall be provided by
law, provided, however, that in no

106

MANDERSON'S JUDICIARY REPORT

Friday]

[June 23

case shall the said compensation ex
ceed $2,500.00.
Sec. 20. The Probate Court shall
have jurisdiction in Probate and Tes
tamentary matters, the appointment
of administrators and guardians;
the settlement of the accounts of ex
ecutors, administrators and guardi
ans; the issuing of marriage licences,
and for the sale of land by executors,
administrators and guardians, and
the same jurisdiction as to the trial
of civil cases as is provided herein for
Justice of the Peace.
JUSTICE OF THE PEACE.
Sec. 21. There shall be six Jus
tices of the peace in each county, who
shall be elected by the electors of
the county, and hold their office for
three years and until their succes
sors are qualified. The Legislature
may increase the number of Justices
in towns and cities, not to exceed
one for each 5,000 inhabitants.
Sec. 22. Justices or tne Peace
shall have such civil and criminal
jurisdiction in minor offences, and
perform such duties as may be pro
vided by law.
Sec. 2 3. They shall have origi
nal jurisdiction in all cases in law
where the amount involved is $100
and under; and concurrent jurisdic
tion with the Probate and Common
Pleas Courts where the sums invol
ved in such causes is $300, and un
der. Sec. 2 4. Judges of the Supreme.
Circuit, Common Pleas, and Probate
Courts shall be in-eligible to any
other than the Judicial office, during
their continuance therein; except
that they serve, when lawfully elect
ed as members of conventions to al
ter or revise the Constitution of the
State. They shall receive no fees
or perquisites other than as provided
herein, and their salaries shall not
be increased or diminished during
the term for which they shall have
been elected.
Sec. 2 5. Supreme, Circuit, and

Common Pleas Judges shall be elect
ed at a special election not to be
held within sixty days of a general
election. Sec. 2 6. In case the office of any
Judge shall become vacant before
the expiration of the regular term
for which he was elected, the vacan
cy shall be filled by appointment by
the Governor until a successor is
elected at a special election " called
for the purpose which election shall
be so called within sixty days after-
such vacancy.
Sec. 27. Two- thirds of the mem
bers elected to each House of the
Legislature may require the opinion
of the Supreme Court upon impor
tant questions of Constitutional law.
Sec. 28. Judges may be removed
from office by concurrent resolution
of both Houses of the Legislature, if
two-thirds of the members elected
to each House, concur therein; but
no such removal shall be made ex
cept upon complaint, the substance
of which shall be entered upon the
Journal, nor until the party charged
shall have had notice thereof and an
opportunity to be heard.
Sec. 2 9. All process, writs, and
other proceedings shall run in the
name of "The people of the State of
Nebraska." Sec. 30. All officers provided for
in this Article shall respectively re
side in the circuit, District, or county
for which they may be elected, or
appointed. Mr. MAXWELL. Mr. President, I
wish to offer, and I move its refer
ence to the Committee on Judiciary,
without being read.
Motion agreed to.
The following is the resolution of
Mr. Maxwell. ARTICLE.
JUDICIAL.
1st. The Judicial power of the
State shall be vested in a Supreme
Court, in District Courts, County

MAXWELL'S JUDICIARY REPORT

107

Friday]

[June 23

Courts', Justices of the Peace, and
such inferior Courts as the Legisla
ture may establish.
2nd. The Supreme Court shall
consist of at least three Judges, two
of whom shall constitute a quorum,
or to pronounce a decision. It shall
have original jurisdiction in quo war
ranto, mandamus, habeas corpus, and
such appellate jurisdiction as may be
provided by law. It shall hold at
least two terms in each year at the
seat of government, and such other
terms as may be provided by law.
The Judges of the Supreme Court
shall be elected by the electors of
the State at large. The Judges of
the Supreme Court shall immediately
after the first election under this
Constitution be classified by lot, so
that one shall hold for two years,
one for four years, and one for six
years; and at all subsequent elections
the terms of each of said' Judges shall
be for. six years.
3rd. The State shall be divided
into four Judicial districts, of which
the counties of Otoe, Nemaha, Rich
ardson, Pawnee and Johnson, shall
constitute the first district. The
counties of Cass, Saunders, Sarpy,
and Douglas shall constitute the 2nd
district; and the territory now em
braced in the 3rd Judicial District
and the counties of Butler, Lancaster,
Gage, and the counties west there
of, and south of the Platte river,
except that now embraced in the 3rd
District shall constitute the 4th Dis
trict. The Legislature may at any
time, when the increase of business
demands, by a vote of two-thirds of
the members elected to each house
increase the number of the Judicial
Districts, not to exceed seven,
and provide for the election of
judges, but shall not so change the
boundaries as to vacate the office of
any judge thereof. That the judges
of each of said district Courts shall
be elected from, and be a resident of
their respective districts.
4th. The County Court shall be a
Court of Record, shall be holden by

one judge, who shall be an attorney
at law in each county in this State,
and shall have civil jurisdiction in
actions at law in the amount of five
hundred dollars, and shall hold Court
for the transaction of civil business
on the 1st Mondays of January, April,
July and October in each year, at
which time a Jury shall be provided
as required by law. The County
Court shall have jurisdiction in Pro
bate and testamentary matters; the
appointment of administrators and
guardians; the settlement of the ac
counts of executors, administrators,
and guardians and such jurisdiction
in habeas corpus, the issuing of mar
riage licenses, and for the sale of
lands by executors, administrators
and guardians as may be provided
by law, that said Court shall be at
all times for the above purposes. The
judges of said Court shall be elected
for three years.
5th. Three Justices of the Peace
shall be elected in each township,
precinct, or ward of the several
counties of the State. Their term of
office shall be three years. That im
mediately after the first election they
shall be classified by lot so that one
of said justices shall hold for one
year, one for two years and one
for three years and that at all elec
tions thereafter all justices shall be
elected for a term of three years and
shall not have jurisdiction in any
matter wherein the title or bound
aries of land arp in controversy, nor
in actions of libel or slander, and
shall have jurisdiction in actions on
contract in the amount of two hun
dred dollars.
6th. In case the office of any judge
shall become vacant before the ex
piration of the regular term for
which he was elected, the vacancy
shall be filled, by appointment by the
Governor until a successor is elected
and qualified, and such successor
shall be elected for the unexpired
term at the next general election
occuring after such vacancy.
7th. The judges of the Supreme

108

STATE LANDS— TAX EXEMPTIONS

Friday]

VIFQUAIN— NELIGH-BALLARD

[June 23

Court shall receive for their services
the sum of three thousand dollars
per annum,, and the judges of the
district courts shall receive for their
services the sum of two thousand
five hundred dollars per annum,
and shall in addition be paid their
necessary travelling expenses incur
red in holding their several terms of
Court, and not exceeding the sum of
five hundred dollars in one year.
8 th. The clerks of the several
counties shall be clerks of the Dist
rict Court of their respective coun
ties, and the Supreme Court shall
appoint suitable persons as clerk and
reporters of the Supreme Court.
9th. Judges may be removed from
office by impeachment, in which
case the same proceedings shall be
had as in the impeachment of Gover
nor, and two-thirds of the Senate
shall be required to find the party
guilty. The style of all process shall be
"the People of the State of Neb
raska." The District Courts shall have
original jurisdiction in all cases in
law and equity and such appellate
jurisdiction as is provided by law,
and shall hold at least one term of
court in each county in each year.
Mr. VIFQUAIN. Mr. President, I
have a resolution to offer.
The Secretary read the resolution,
as follows:
RESOLVED, That all lands hereto
fore not appropriated and belong
ing to the five hundred thousand
acres of internal improvement lands
given by the Federal Government to
the State of Nebraska will be equally
divided among the several counties
of the State, and by them used for
internal improvements in such coun
ties, providing that no lands will be
used by any county without submit
ting the same to a vote of its people
under such rules as may be pres
cribed by the first session of the

Legislature, after the adoption of the
new Constitution.
Mr. VIFQUAIN. Mr. President, I
move it be referred to the Committee
on State Lands (other than School
Lands.) .
Motion agreed to.
Mr. NELIGH. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That for the en
couragement of the establishing of
manufactures in this State, the
Constitution be so amended exempt
ing all manufacturing companies
from taxation by laws of this State
for the term of six years.
Mr. NELIGH. Mr. President, I
move to refer to Committee on Manu
factures and Agriculture.
Motion agreed to.
Mr. BALLARD. Mr. President, I
hope now there is a determination
to go to work. We have established
a bad precedent in coming here to
hear the journal read, and filling in
the morning hour with resolutions.
I hope all have been presented that
are wanted. The people are looking
at us and are anxious to know what
we are going to do; they are expect
ing a Constitution to be submitted to
them, and we ought to work.
Mr. MYERS. Mr. President, I call
the gentleman to order.
The PRESIDENT. The gentleman
will not be permitted to speak un
less he makes a motion, or leave is
granted. ("Leave," "Leave.")
Mr. BALLARD. I thought I was
in order. I say we have been here
a number of days. We have done
much it is true, but I think we might
have done much more. I hope this

BALLARD'S PROTEST— RAILROAD TAXES

109

Friday]

BALLARD— MANDERSON— BOYD

[June 23

body will go to work in earnest and
get the reports; for the reason that
these resolutions will perhaps be
worked over again in Committee of
the Whole. The sooner the Conven
tion goes to work substantially the
better. I want to get home some time
next winter. We can go to work and
"commence to grind," as the saying
is, and get to the framing of the
Constitution. This day week some
of the gentlemen will want to go
home, and, perhaps, an adjournment
of ten days will be requested; and
the result will be that we shall finish
our work so near to the next elec
tion that the people will have scarce
ly any time to study the Constitu
tion before they are called on to
vote for it. I think we can do more,
and I hope we shall.
Mr. MANDERSON. Mr. President,
I have a resolution to offer.
The Secretary read the resolution
as follows:
RESOLVED: That the compensa
tion of the Sergeant-at-arms and
Doorkeeper be fixed at $3.00 per day;
that the compensation of the pages
be $1.50 per day, and that they be
permitted to draw their pay during
the sitting of the Convention under
proper warrant.
Mr. MANDERSON. I move, Mr.
President, that the resolution be
adopted. Mr. PHILPOTT. Mr. President, I
move to amend by saying that the
Chaplain shall receive $3.00 per day.
The PRESIDENT. Gentlemen, the
question is to amend.
Mr. TOWLE. Mr. President, I
move to raise the pay of the pages to
$2. Mr. MANDERSON. I take those

figures from what the last Legisla
ture paid.
Mr. TOWLE. I hope the gentle
man will not take the last Legisla
ture as a precedent.
The motion, as amended, was
agreed to.
Mr. BOYD. Mr. President, I wish
to offer a resolution and move its
adoption. The Secretary read the resolution
as follows:
WHEREAS: certain railroad cor
porations in this State, by virtue
of the building of their roads, have
become entitled to large tracts of
the public domain, and although the
title may not yet have passed from
the General Government, said corpor
ations are virtually the owners there
of, therefore
RESOLVED; That the Judiciary
Committee be instructed to report to
this Convention whether, in their
opinion, we can, by the proposed
Constitution, provide for the collec
tion of taxes on said lands.
Resolution adopted.
Mr. WAKELEY. Mr. President,
I wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the President
of this Convention be authorized to
employ what additional clerks may
be necessary.
Mr. WAKELEY. I have been in
formed that some action of this kind
is necessary, and I offer the resolu
tion for that reason.
Mr. ESTABROOK. I move to
amend, Mr. President, by inserting
that "the Convention now proceed
to the election of Engrossing and En
rolling Clerks." We are now about
to report, from the different Com
mittees, and their services will be re
quired.

110

ADDITIONAL CLERKS

Friday]

ESTABROOK— TOWLE— HASCALL

[June 23

Mr. THOMAS. Mr. President, I
would like to ask whether there is
any Enrolling and Engrossing to be
done at the present time.
Mr. ESTABROOK. I would say
there is no Enrolling or Engrossing
to be done at present. They can help
the clerks we already have to get
their papers in shape.
Mr. HASCALL. Mr. President, I
would say, we will have work for an
Engrossing clerk, but not for an En
rolling clerk until the Constitution
is finally adopted. Then it will have
to be enrolled and properly pre
served. Mr. KIRKPATRICK. I think, Mr.
President, we ought not to employ
officers until we have duties for them
to perform.
Mr. TOWLE. It will be remem
bered by the House that, at the be
ginning of the session, I offered a res
olution with regard to the employ
ment of more clerks: and for va
rious reasons, which the House
thought proper to urge at that time,
my resolution was rejected, and it
was generally considered that all the
work required by this Convention,
outside of that done by the two sec
retaries, could be done by profession
al copyists, (of whom there are a
number in this town) under the di
rection of the President. The Com
mittees, I understand have agreed to
do their own copying. There are a
number of people here who would
be glad to do copying by "piece
work". I hope the resolution will
not be adopted. I move we adjourn
until 10 o'clock tp-morrow morning.
Mr. GRENELL. Mr. President, It
seems to me that this motion ought

not to prevail at this time there is
now 
Mr. TOWLE. Mr. President^ I
withdraw my motion.
Mr. HASCALL. Mr. President,
the rules require that, each Article
of the Constitution should be read a
first and second time, before they are
finally discussed in Committee of the
Whole and we might put in some
time perhaps in that way.
The PRESIDENT. I would say
for the information of the gentleman
from Douglas, there should be two
more headings to our order of busi
ness, for "Bills on first Reading," and
"Bills on second Reading."
Mr. ESTABROOK. I wish to offer
a resolution, Mr. President.
The Secretary read the resolution
as follows:
RESOLVED: That this .Conven
tion do now proceed to elect an En
grossing and Enrolling Clerk, who
shall do such duties as shall be pre
scribed by the President.
The PRESIDENT. Is this offered
as a substitute for the resolution of
the gentleman from Douglas (Mr.
Wakeley) .
Mr. ESTABROOK. Yes, sir.
The PRESIDENT. Gentlemen,
the question is upon the substitute.
Mr. TOWLE. Mr. President. I de
sire the ayes and nays.
Mr. CAMPBELL. Mr. President, I
move to postpone until next Monday,
for the reason that these clerks
would have nothing to do until that
time. Mr. WAKELEY. I am informed
by officers of. this House that
there is a necessity for additional
clerical help in order to keep up
the Journal.

ADDITIONAL CLERKS

111

Friday]

ES TABROOK— KIRKPATRICK— WAKELE Y

[June 23

Mr. GRENELL. Mr. President, I
am in favor of employing more
clerks. I am informed that the work
cannot be done without overtaxing
our present clerks.
Mr. KIRKPATRICK. I am sat
isfied the resolution of the gentleman
from Douglas (Mr. Estabrook) is
just, if there is additional clerical
force needed, but I understand this
is not the case.
Mr. ESTABROOK. It seems to me
all the members are a little ostenta
tious of their parsimony, and I have
my share of it no doubt. There seems
to be a disposition to "save at the
spiggot, and waste at the bung hole,"
but all I wish to know is, that the
assistance asked is really needed, and
I am satisfied it is. While I take
this position, I will say I don't be
lieve in these little outside arrange
ments, where somebody is to go and
call in assistance here and there. If
we are to have clerks here, let us
know who they are. Hence I offer
my substitute.
Mr. KIRKPATRICK. Mr. Presi
dent, I would like to know if the
gentleman applies his remarks to me,
when he says members are disposed
to "spend at the bung hole, and save
at the spiggot." I think such remarks
are entirely uncalled for, and out of
place. I think it is evident we do
not, at present, have work for En
grossing or Enrolling Clerks, and it
would be imposing on them to set
them at the ordinary work of journal
clerks. The PRESIDENT. The question
is upon the postponement until Mon
day morning.
Mr. CAMPBELL. I am willing,

Mr. President, if those clerks will
state that they cannot get the work
up from the adjournment tomorrow
morning until Monday morning, to
withftraw my motion.,
Mr. ESTABROOK. I would like to
ask the gentleman if he desires to
have our clerks break one of the com
mandments, I forget the number. It
is to keep the Sabbath.
Mr. WAKELEY. I move the gen
tleman be referred to the Committee
on Education.
The PRESIDENT. The question
is on the motion to postpone.
The Convention divided and the
motion was agreed to.
Mr. GRAY. Mr. President, I have
a resolution to offer.
Mr. ABBOTT. I move the Conven
tion do now adjourn until to-morrow
morning at ten o'clock.
Mr. MAJORS. Mr. President, I
desire to ask leave of absence for my
colleague, Mr. Tisdel.
Leave granted NEM. CON.
Mr. ABBOTT. Mr. President, I
insist, on my motion to adjourn.
Mr. MYERS. Mr .President, I
arise to a point of order
The PRESIDENT. The gentleman
from Douglas (Mr. Myers) will state
his point of order.
Mr. MYERS. The gentleman from
Dodge (Mr. Gray) had the floor when
the gentleman from Hall (Mr. Abbott)
made the motion. A motion to ad
journ is not in order when a member
has the floor.
The PRESIDENT. The motion to
adjourn is not in order; The gentle
man from Dodge (Mr. Gray) had the
floor. The Secretary read the resolution

112

DONATIONS TO CORPORATIONS

Friday]

GRAY— NELIGH -HASCALL

[June 23

of the gentleman from Dodge (Mr.
Gray) as follows:
RESOLVED: That the Committee
on State, County and Municipal In
debtedness, (No. 12) to who* was
referred the resolution for an article
of which a copy is hereby attached,
be required to report the same back
to this Convention by to-morrow.
"Mr. Gray offered a resolution
that the following be incorporated
into the Constitution and be submit
ted separately:
SECTION. 1. No County, City,
Town. Township, Precinct or other
municipality, shall ever become sub
scribers to the capital stock of any
Railroad or private corporation, or
make donations to, or loan its credit
in aid of such corporation; PRO
VIDED, That the adoption, or re
jection of this article, shall not affect
in any way the question of the legal
ity of the donations already made to
Railroads or private corporations.
Mr. GRAY. Mr. President, I move
the adoption of the resolution. Now
the object I have in view, is this, the
resolution which was offered, and
which is attached to this resolution,
and was referred to its appropriate
Committee, is a resolution, which I
desire to have reported back to this
Convention for their action and if I
can get a majority vote of this Con
vention in favor of it, to have it
grafted into the Constitution as an
independent article. I desire when
it is reported back to have it printed
and placed before the members, so
that we may be prepared to consider
it when we go into Committee of the
Whole. How can we do this if this is
lying in a dormant condition, before
a Standing Committee? It has been
there for two or three days already.
I regretted to have to send it to a
Committee at all, for I thought it

would cause delay. I desire this Con
vention to establish some rule by
which these resolutions will be re
ported back from the Committees to
which they are referred. Therefore
I hope the resolution may pass and
prevail. Mr. NELIGH. Mr. President, I
move to amend the motion and to
refer the resolution to the Commit
tee on State, County and Municipal
Indebtedness. Mr. PHILPOTT. I call for the
reading of the resolution. .
The Secretary read the resolution
again. Mr. KIRKPATRICK. Mr. Presi
dent, I think the amendment offered
by the gentleman from Cuming (Mr.
Neligh) does not facilitate the object
of the motion.
Mr. NELIGH. Mr. President, I
withdraw my motion.
Mr. HASCALL. Mr. President, I
hold that the resolution itself is not
proper, and it is ill timed. This mat
ter has been referred to a Standing
Committee and they require time to
act upon it. It does not follow, be
cause a resolution is referred to a
Committee, that the same resolution
be reported back to the Convention.
I am not one who is prepared to say
that these Standing Committees have
yet had proper time to prepare their
reports, but after they have had suf
ficient time to consider all the reso
lutions committed to them, I am in
favor of requesting them to report
not upon any one special resolution,
but upon the whole matter referred
to them. I am opposed to forcing
any committee to report until they
have had sufficient time to act upon

MUNICIPAL AID TO CORPORATIONS

113

Friday]

TOWLE— GRAY— BALLARD

[June 23

the matter committed to them.
Mr. TOWLE. I move that we now
adjourn until to-morrow morning at
10 o'clock.
Mr. McCANN. Mr. President, I
wish to ask a question for informa
tion: Is there not a special order of
business for this afternoon at 2
o'clock? The PRESIDENT. There is not.
Mr. GRAY. Mr. President, the
question to adjourn to a time certain
I believe; is debatable. I trust this
motion will not prevail until this res
olution is passed; it will take but a
short time to act upon this motion,
and I hope the friends of my resolu
tion will vote against the motion to
adjourn. Mr. BALLARD. Mr. President,
we refused to adjourn yesterday un
til the regular order of business was
gone through with, and I hope we
will follow that rule. It is time for
the members of this Convention to
begin to make a record for them
selves, I call for the "ayes" and
"nays." The Secretary proceeded to call the
roll. The result was announced, yeas
13, nays, 34 as follows:

YEAS.

Abbott,
Cassell,Eaton, Hascall,
Lake,
Myers,Neligh,

Ballard, Boyd,
Campbell, 8

Newsom,
Parchen,Scofield,
Speice,
Stewart,
Towle,

NAYS.

Curtis,
Estabrook, Gibbs,

Granger, Grenell,
Gray,
Hinman, Kenaston,Kilburn, Kirkpatrick,
Ley, Lyon,
McCann, Majors, Mason,
Manderson, Maxwell,

Moore, Parker, Philpott,
Price,Reynolds,Shaft,
Sprague, Stevenson,
Thummel,Thomas,
Vifquain,
Wakeley, Weaver,
Wilson,

ABSENT OR NOT VOTING.
Griggs, Woolworth,

Robinson,Tisdel,

Mr. President,

Leave of Absence.
Mr. TOWLE. Mr. President, I
wish to ask leave of absence for Mr.
Parchen for one week.
Leave granted NEM. CON.
Mr. HASCALL. Mr. President, I
move to lay the resolution on the
table. Mr. GRAY. Mr. President, I call
for the yeas and nays.
The Secretary proceeded to call the
roll. The result was announced, yeas
22, nays 26 as follows:NAYS.

Ballard,

Maxwell,

Campbell,

Moore,

Gibbs,

Newsom,

Granger,

Parker,

Grenell,

Philpott,

Gray

; Price,

Hinman,

Shaft,

Kenaston,

Sprague,

Kilburn,

Speice,

Kirkpatrick,

Thomas,

Lyon,

Vifquain,

Majors,

Weaver,

Mason,

Wilson,

114 WAKELEY'S SPEECH ON COMMITTEE RIGHTS

Friday]

GRAY— WAKELEY

[June 23

YEAS.
Abbott, Myers,
Boyd, Neligh,
Cassell, Parchen,
Curtis, Reynolds,
Eaton, Scofield,
Estabrook, Stevenson,
Hascall, Stewart,
Lake, Thummel,
Ley, Towle,
McCann, Wakeley,
Manderson, ABSENT OR NOT VOTING.
Griggs, Woolworth,
Robinson, Mr. President,
Tisdel, Mr. GRAY. I now call for the
yeas and nays upon the pasage of
the resolution.
Mr. WAKELEY. Mr. Presidents
¦do not see the necessity or propriety
of pressing this motion of the gentle
man from Dodge (Mr. Gray). The
resolution to which reference is made
is a very important subject, it was re
ferred to the appropriate Standing
Committee for the purpose of con
sideration; it is now before that Com
mittee for that puropse, and if there
was any propriety in referring to that
Committee there is eminent propriety
in leaving it in the hands of that
Committee until they have sufficient
ly considered the subject and are pre
pared to report back to this Conven
tion. If the gentleman intends to
suggest, by his resolution, that this
Committee has been dilatory in the
performance of their duty, that they
are unduly delaying a report upon
this subject, let him say so; or if he
proposes to take it out of the hands of
the Committee, let him say something
to that effect. The effect of carrying
this motion would be as I understand
it to oblige this Committee to re
port tomorrow morning whether
they do or do not recommend the

passage of one particular proposition
upon the subject referred to in that
resolution. Now sir, the Commit
tee may not see fit to report that
resolution in the precise form in
which is has been sent to that Com
mittee; perhaps may conclude to
report the resolution in that precise
form and recommend that the propo
sition be embodied in the Constitu
tion; they may come to the conclu
sion to report in favor of adopt
ing the principle of that resolution,
but in a somewhat modified form;
and the Committee should have all
the time it desires unless it is asking
for an unreasonable time, to do its
duty and report its conclusions to the
Convention. As a member of that
Committee I have to say that unless
the Convention are prepared to act
on that subject without any reference
whatever to the views of the Commit
tee, I think it is not only proper but
due to the Committee itself, that they
should have the needful time for tak
ing action and preparing a report for
this Convention. Again, Mr. Presi
dent, I object to the passage of the
resolution offered by the gentleman
from Dodge (Mr. Gray) just now for
a different reason. If the mover of
any resolution which has been refer
red to a Standing Committee, if it be
proper for him to offer a resolution
and require the action of the House
upon resolutions instructing a Com
mittee what to do with that proposi
tion, then every member of this Con
vention has the same right, and
should be allowed the same opportu
nity. If every distinct proposition
made by a member of this Convention
and sent to a Committee is to be act
ed upon in Committee of the Whole,

WAKELEY'S SPEECH ON COMMITTEE RIGHTS 115

Friday]

WAKELEY— LAKE

[June 23

or separate and distinct propositions
then sir there will be no need of sub
jects upon which the Committee of
the Whole is to act. I understand
that we started out upon this plan
that all propositions relating to a
particular subject be referred to an
appropriate Standing Committee, hav
ing in charge an Article of the Con
stitution, into which it will be prop
er that a provision be inserted, and
when all these propositions have been
considered, and when the appropri
ate Standing Committee shall have
made its report embracing the whole
subject committed to them, then you
will have one distinct matter to re
fer to the Committee of the Whole.
You will have a report of the Stand
ing Committee covering the whole
held of inquiry, if you go into Com
mittee of the Whole on the subject
their report will be considered, their
report properly will take the form of
a proposed Article, or section or pro
vision, and then, sir, it will be com
petent for any member of this Con-
yention to move an amendment to
any proposition of the Committee,
hut if every gentleman of this Con
vention, who has moved a resolution
in regard to the frame of the Consti
tution, is to bring motions before the
Convention from day to day instruct
ing the Committee to report back
their opinion upon his particular
proposition, or to report that pro
position back to the Convention with
the recommendation that it pass or
not pass, and all this with a view of
sending that distinct proposition to
the Committee of the Whole to be
acted upon, I think it will take a
very long time to dispose of the busi
ness of this Convention. Why not

let this matter take the ordinary
course. That Committee, in all prob
ability will be ready to report at an
early day. I speak as a member of
the Committee not as Chairman. I
do not think there is any necessity
or any propriety in this unusual action
in regard to one particular proposi
tion which has gone to a Standing
Committee. I do not know what will
be gained by early, action upon this
subject. It is a very important sub
ject; a subject which requires as
much consideration as any one sub
ject before the Convention in any
particular! It should not be hasten
ed; it should not be pressed urgently
upon the Convention at an early
period of its session. Such is my
judgment. Mr. LAKE. It seems to me this
subject is just where it ought to be,
in the hands of the Committee on
State, County and Municipal Indebt
edness. The action which is called
for by the resolution of the gentle
man from Dodge, it seems to me im
pugns the motives of this Commit
tee; that they are not doing what
they ought to do; that they are not
acting with that promptitude they
ought to do. It seems to me, Mr.
President, no subject matter which
has been referred to this Commit
tee, by the resolution which the gen
tleman from Dodge (Mr. Gray) has,
I understand, introduced, is one of
very great moment, one which gen
tlemen of this Convention cannot
properly act upon without due con
sideration; and when I look over
the names of this Committee, and see
who compose it, I am satisfied that
in due time the report will be made

116 KIRKPATRICK'S SPEECH ON COM. RIGHTS

Friday]

LAKE— KIRKPATRICK

[June 23.

upon that subject. I understand that
the subject matter of this resolution
as introduced and sent before this
Committee, proposes to prohibit en
tirely any county or any Municipal
ity whatever, to lend its aid to any
internal improvement — an absolute
prohibition. If that be the case, it
is important that the gentlemen of
the Committee have ample time to
reflect and consider the whole sub
ject matter, and determine whether
or not that be best. We want the
views of that Committee. If it is an
appropriate Committee, it was sent
there for the purpose of obtaining
the views of that Committee, and un
til those views have been prepared
and we have it on good authority,
that they have not had time, we
should not send to the Committee.
Shall we take statements of the gen
tlemen on the floor who are interest
ed in this matter, as is the gentleman
from Dodge (Mr. Gray) ,or shall we
take the statements of members of
the Committee who say they have not
had time sufficiently to consider the
subject matter. We are fixing a time,
and a short time indeed, for the Com
mittee to report to-morrow I under
stand, I prefer that each one of these
Committees shall have ample time to
consider the subject matter of the
questions referred to them. I feel, for
one, that the Committee have not
abused the privilege which is allowed
in taking of the time which, in their
judgment they shall deem best.
There has been no abuse of time on
the part of the Committee, and I
am in favor of letting the matter
rest in their hands until they report
on the subject. I am opposed to the

resolution of the gentleman from
Dodge (Mr. Gray), on that ground;
that it is not acting fairly with the
Committee. If I was convinced they
were acting unfairly with the gen
tleman's proposition, I would most
certainly aid him in taking it from
the Committee; but until it is, I am
in favor of letting it remain where
the action of the House has placed
it. Mr. KIRKPATRICK. I take it
that no reflection was meant on the
Committee, but this is rather an un
usual course. When a gentleman of
fers a resolution it comes into the
House; it is a House resolution then,
and the House refers it to a Standing
Committee. I admit the House has-
control over the Committee and can
order from the Committee what it
has ordered to a Committee. I
have no right, nor am I disposed to
communicate to gentlemen the views
of the members of the Committee;
nor have I a right to discuss in this
House, the propositions submitted to
the Committee. I have no right to
enter into the merits of the question
now before the House, nor am I dis
posed to do so. I am not disposed
to ask the indulgence of this House,
but I will call attention to the fact
that members of this Committee are-
members of other Committees. I am
very tired, with attending to my ap
pointments; but I will state that
f think the Committee is not ready
to report the resolution back to this
House. In due time, sir, the resolu
tions referred to this Committee will
doubtless come back to the House.
I do not know what recommenda
tions will accompany them. I think

GRAY WITHDRAWS HIS RESOLUTION

117

Friday] .

GRAY— MANDERSON-MASON

[June 23

the gentleman will oblige the Com
mittee by simply withdrawing the
resolution for the time being, and
when the Committee come to it, it
will deliberate what it can do and
make an honest report, whether it
meets the concurrence of the gentle
man or not.
Mr. GRAY. With the leave of my
second, after hearing the explanation
of the Chairman of that Committee
(Judge Lake) to which was referred
the Article, I will, for the present,
withdraw my resolution.
Mr. Manderson, Judge Lake and
several others objected.
Mr. MANDERSON. I move the
consideration of the question be in
definitely postponed.
Division demanded.
Mr. MASON. I move the gentle
man from Dodge (Mr. Gray), have
leave to withdraw his resolution.
Mr. HASCALL. I call the gentle
man from Otoe to order.
Mr. MASON. The request of the
gentleman from Dodge to withdraw
was first before this House.
Mr. MANDERSON.- It was not a
resolution to withdraw. The ques
tion is upon the indefinite postpone
ment of the motion.
Mr. GRAY. I intended it as a
motion. Mr. PARKER. Would an amend
ment to his motion be in order?
The PRESIDENT. There is noth
ing in order. The question is upon
the postponement of the considera
tion of the resolution.
The ayes and nays being demanded
the Secretary proceeded to call the
roll with the following result —

ayes 19; nays 21 — as follows:

AYES.

Abbott,
Boyd,Curtis,Eaton, Estabrook,
Hascall,Lake, Ley,
Manderson, Myers,

Neligh, Reynolds, Scofield,Shaft,Stevenson,
Thummel, Towle,
Wakeley, Weaver,

NAYS.

Ballard,

Majors,

Campbell,

Mason,

Cassell,

Maxwell,

Gibbs,

Moore,

Granger,

Newsom,

Grenell,

Parker,

Gray,

Philpott,

Hinman,

Price,

Kenaston,

Sprague,

Kilburn,

Speice,

Kirkpatrick.

Stewart,

Lyon,

Thomas,

McCann,

Vifquain,

ABSENT.

Griggs,

Robinson„

Parchen,

Woolworth

EXCUSED.
Wilson, The PRESIDENT. Nineteen gen
tlemen having voted in the affirm
ative, and 26 in the negative, the
motion is lost.
Mr. MASON. Mr. President, I
move that the gentleman from Dodge
(Mr. Gray) have leave to withdraw.
Motion agreed to.
Adjournment. .
Mr. CASSELL. Mr. President, I
move to adjourn until to-morrow
morning at ten o'clock.
Resolutions. Again.
Mr. ESTABROOK. Mr. President,
I have a little document here, which

118

RIGHTS OF SUFFRAGE

Saturday]

ESTABROOK- MAX WELL— LAKE

[June 24

I would like to read.
("Leave" "Leave.")
Mr. ESTABROOK. (reading)
RESOLVED: That the Secretary
of State cause a board to be placed
before the door of this room, where
on notices of the meetings of Com
mittees be posted.
Mr. ESTABROOK. Mr. President
I move its adoption.
Motion agreed to.
Leave of Absence.
Mr. MASON. Mr. President, I ask
leave of absence for myself until
Monday at ten o'clock.
Leave granted.
Adjournment Again.
The PRESIDENT. Gentlemen, the
question is upon the motion to
adjourn until to-morrow morning at
ten o'clock.
The motion was agreed to.
So the Convention (at twelve
o'clock and twenty-three minutes)
adjourned.

TENTH DAY.
Saturday, June 24, 1871.
The Convention met at ten o'clock
a. m. and was called to order by the
President. Prayer.
Prayer was offered by the Rev. L.
B. Fifield, of Lincoln, as follows:
Oh God, the Lord, be Thou the
strength of our salvation. In this
high place, may Thy favor make here
known the securities of wisdom; here
may best learning pay homage to
best law; here may the largest ex
perience ask after the wise old way;
here may this Convention minister
unto the people according to the

grace of God's good will to men.
Amen. Reading of the Journal.
The Journal of last day's proceed
ings was read and approved.
Unfinished Business.
The Secretary read the following
resolution from Friday's Journal.
RESOLVED: That the Sergeant-
at-arms be ordered to make out and
have printed for the use of this Con
vention two hundred copies of an ac
curate statement of the name, age,
occupation, place of birth, postoffice
and whether married or single, of the
delegates and officials of this Conven
tion. The resolution was not agreed to.
Report of Committee on Rights of
Suffrage.
Mr. MAXWELL. Mr. President, I
beg leave to submit a report from the
Committee on Rights of Suffrage.
Mr. LAKE. Mr. President, This
I understand is a proposed Article to
the new Constitution. I move that
200 copies be printed for the use of
the members before any further con
sideration of it. And I move that the
reading of it be "waived.
Motion agreed to.
The following is the report:
Mr. PRESIDENT: Your Committee
on the Rights of Suffrage report the
following Article of the proposed
Constitution, and respectfully recom
mend that the same be adopted by
the Convention. SAMUEL MAXWELL, Chairman,
Committee Rights of Suffrage.
Section 1. Every male person of
the age of twenty-one or upwards,
belonging to either of the following
classes who shall have resided in the
State, county, precinct and ward for
the time provided by law shall be an
elector.

SOFFRAGE— JUDICIAL DISTRICTS

119

Saturday]

KIRKPATRICK— SCOFIELD-MANDERSON

[June 24

First, Citizens of the United States.
Second, Persons of foreign birth
who shall have declared their inten
tion to become citizens conformably
to the laws of the United States on
the subject of naturalization.
Sec. 2. The Legislature may ex
tend by law, the right of suffrage to
persons not herein enumerated but
no such law shall be in force until
the same shall have been submitted
to a vote of the people at a general
election, and approved by a majority
of all votes cast on that question at
such election.
Sec. 3. No person under guardian
ship, non compos mentis or insane,
shall be qualified to vote, nor shall
any person convicted of treason or
felony unless restored to civil rights.
Sec. 4. No elector shall be deem
ed to have lost his residence in the
State by reason of his absence on
business of the United States, of this
State, or in the military or naval ser
vice of the United States.
Sec. 5. No soldier, seaman
or marine in the army or navy of the
United States shall be deemed a resi
dent of this State in consequence of
being stationed therein.
Sec. 6. Electors shall in all cases.
except treason, felony or breach of
the peace, be privileged from arrest
during their attendance at elections,
and going to and returning from
the same. And no elector shall be
obliged to do military duty on the
days of election, except in time of
war or public danger.
Sec. 7, All votes shall be by
ballot. Mr. KIRKPATRICK. Mr. Presi
dent, I will say that the Committee
on State, County and Municipal In
debtedness,, expect to be able to re
port perhaps on Tuesday morning.
Resolutions.
Mr. SCOFIELD. Mr. President, I
have a resolution to offer, and I move

its reference to the Judiciary Com
mittee. The Secretary read the resolution
as follows:
RESOLVED: That the State shall
be divided into five Judicial districts
and until otherwise provided by law
they shall be as follows:
First District. Richardson, Nema
ha, Johnson, Pawnee, Gage, Saline,
Jefferson. Second District. Otoe, Cass, Lan
caster, Saunders, Seward, Butler.
Third District. Douglas, Sarpy.
Fourth District. Washington,
Burt, Dodge, . Cuming, Colfax, Stan
ton, Platte, Madison, Pierce, Wayne,
Blackbird, Dakota, Dixon, Cedar,
L' eau-qui Court, and the counties
lying west of L'eau-qui Court, Pierce
and Madison.
Fifth District. Boone, Polk, York,
Fillmore, Thayer, Nuckolls, Clay,
Hamilton, Merrick, Hall, Howard,
Greeley, Valley, Sherman, Buffalo,
Adams, Kearney, Webster, Franklin,
Lincoln and the counties lying west
of Lincoln, Buffalo, Sherman, and
Valley. The boundaries of the district may
be changed at the session of the Leg
islature next preceding the election
of judges therein and at no other
time; but whenever such alterations
shall be made, the district shall be
composed of contiguous counties in as
nearly compact form as circumstan
ces will permit. The alteration of
the districts shall not affect the ten
ure of office of any judge.
The resolution was referred to the
Committee on Judiciary.
Mr. MANDERSON. Mr. President,
I desire to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Committee
on Legislative Apportionment, be in
structed to report on the advisability
of incorporating the following pro
vision in the new Constitution.

120 APPORTIONMENT— COMPULSORY EDUCATION

Saturday]

MANDERSON— NELIGH-OAMPBELL

[June 24

Section. — The number of Sena
tors' shall be 19 and the number of
Representatives shall be 57; which
number may be increased every five
years by the Legislature, and shall
be apportioned according to the Fed
eral, or State census last preceding
such apportionment; provided how
ever, that any organized county with
out direct representation may, upon
application through its county com
missioners, to the Governor of the
State, procure by him the appoint
ment of a board of three (3) census
takers, whose duty it shall be, at
the expense of the county, to take the
census of the county and under oath
return the same to the Governor, and
if it appears that the population of
said county is equal to the number
required for one member of the lower
House of the Legislature then such
county shall be entitled to one mem
ber thereof.
Mr. MANDERSON. Mr. President,
I move its reference to the Committee
on Legislative Apportionment.
Motion agreed to.
Mr. NELIGH. Mr. President, I of
fer a resolution.
The Secretary read the resolution
as follows:
WHEREAS; The State of Nebras
ka has exhibited a commendable
liberality in the cause of Education
in a most munificent manner, by her
common free school law", and that
the only consideration that the State
expects in return for the burden of
heavy taxation which the support of
the free schools imposes upon her
people, is the repression of crime and
the moral advancement of human
progress: Therefore be it
RESOLVED: That while it takes
just as much of the people's money,
and costs equally as much to carry
on our common free schools whether
children attend or not, parents
and others who have children un
der their care and control of suffi
cient age for scholars, should be com

pelled by law, to send all such child
ren to the common schools.
Mr. NELIGH. Mr. President, I
move it be referred to the Committee
on Education, School Funds and
Lands. Motion agreed to.
Mr. CAMPBELL. Mr. President, I
have my report ready.
The Secretary read the report as
follows: Mr. President, The Committee on
Printing and Binding have had un
der consideration the resolution or
dering the daily printing of the Jour
nal, would beg leave to report, that
the cost would be about thirty dol
lars per day, also that the labor of
the clerks would be twice as much as
it is at present.
Therefore the Committee recom
mend the resolution do not pass.
J. C. CAMPBELL, Chairman.
Mr. LAKE. Mr. President, I move
the adoption of the report.
Mr. PHILPOTT. Mr. President, I
call for the reading of the report
again. The Secretary reads the report
again, and the motion to adopt it,
is agreed to NEM. CON.
Mr. HINMAN. Mr. President, I of
fer a resolution, and ask that it be
referred to the Committee on Suff
rage. The Secretary tries to read the res
olution but fails, and hands it to the
Assistant Secretary, who is also un
able to decipher it.
Mr. LAKE. Mr. President, I
move the resolution be referred to
the gentleman who wrote it (Mr. Hin
man), he may be able to read it.
Mr. HINMAN. I would prefer to
have the Secretary read it.

HINMAN'S WOMAN'S RIGHTS RESOLUTIONS 121

.Saturday]

HINMAN— NEWSOM-ESTABROOK

[June 24

Mr. MANDERSON. I move it be
referred to the Committee on Educa
tion. Mr. CAMPBELL. I think it
should not be referred to that Com
mittee, Mr. President, for if the gen
tleman who wrote it (Mr. Hinman)
cannot read it, now that it has got
cold, I am sure the Committee on
Education cannot.
Mr. Hinman reads the resolution,
=as follows:
WHEREAS; A division of labor
and occupation between the opposite
sexes has, during the existence of
mankind proven the most harmo
nious and beneficial and should be
kept up: and
WHEREAS; it is charged by wom
an (suffragists) that drunkenness, de
bauchery, fraud, anu all grades of
vice and villany, are the rule of the
day owing to the corruption of the
male sex, and various agitators are
desirous of changing our long used
but fogish system now existing — of
males doing the outside work and
^principal business connected with
making a livelihood, and laws to gov
ern in transactions connected there
with, the following resolutions are
offered with a request that they be
referred to the Committee on Suff
rage, for their consideration as to
the advisability of having the same
engrafted into the Constitution to be
submitted to the people.
RESOLVED. That the elective
franchise shall be conferred on fe
males alone. i
2nd. That the word "male" shall
be stricken from the Constitution
wherever the same occurs, and the
word "female" substituted therefor.
3rd. That males shall no longer
hold office, nor exercise the elective
franchise in this State.
4th. That people,, as near as prac
ticable shall conform themselves to
the following rules:
1st. That females shall hereafter
fill the occupations heretofore usual

ly occupied by men or males in
farming, mechanical and manufact
uring employments; constructing
and projecting and running railroads
and other internal improvements;
keeping hotels and livery stables and
hostlers and all other of the afore
said occupations not herein enumer
ated so as to fit her for more in
telligently making the laws connect
ed with the conduct of such occupa
tions. 2nd. That the males shall here
after exercise and fill the occupations
and employments heretofore usually
filled by women, such as nursing and
the usual household duties of fe
males together with running sewing
societies, tea parties, and all other
employments of females not herein
enumerated so as to properly fit
him for both a useful and ornamen
tal person in society.
5th. RESOLVED: That the Leg
islature shall make such laws both
penal and civil as will most effectu
ally carry out the provisions of reso
lution 4 and to compel the different
sexes to conform themselves to the
provisions therein contained and
more especially providing for the in
fliction of heavy penalties wherever
there is any continued and intention
ally obstinate violation of the same.
Mr. NEWSOM. I move that we
have the resolution read again. I
take pleasure in saying that it has
been well read (laughter).
Mr. ESTABROOK. Mr. President,
I believe that it is according to our
rules that it be read a first and sec
ond time, (laughter).
Mr. LAKE. Mr. President I
move that it be read again.
Mr. HINMAN. Mr. President, I be
lieve the reading of the resolution
again is not in order, I ask that it be
referred.

122

BRIBERY— AUDITOR'S REPORT

Saturday]

SCOFIELD— NEWSOM^LAKE

[June 24

Mr. HASCALL. Mr. President, I
move to strike out the resolution en
tirely, leaving the word "Whereas",
only, (laughter)
The PRESIDENT. The question
to commit has preference. The mo
tion to commit was agreed to NEM.
CON. Mr. SCOFIELD. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Committee
on Rights of Suffrage be instructed
to inquire into the expediency of re
porting a Constitutional provision
permanently excluding from the
right of elective franchise all persons
who may be convicted by a court of
record, of having money or other val
uable thing to influence or reward
their vote and to make the offence,
with or without' conviction, a cause
of challenge at the polls.
Referred to Committee on Rights
of Suffrage. Leave of Absence.
Mr. GRENELL. Mr. President, I
desire leave of absence until Tues
day at 2 o'clock.
Leave granted NEM. CON.
Resolutions Again.
Mr. NEWSOM. Mr. President, the
Auditor's report in reply to a resolu
tion to furnish the Convention a
statement showing the outstanding
indebtedness of the State; he shows,
among other things, that the "An
nual expenses on general fund
$200,000." I do not understand what
this means and I desire to offer a
resolution. The Secretary read the resolution
as follows:
RESOLVED: that the Auditor of
State be requested to explain that

part of his report showing the indebt
edness of the State, so as to show in
general terms what the "Annual ex
penses on General Fund" means,
whether it means the annual general
expenses of the State, and if so, how
and under what heads they occur.
Mr. NEWSOM. I move the adop
tion of the resolution.
Mr. HASCALL. Mr. President, I
see no use of adopting this resolution.
The Auditor means by that, the ap
propriations made by the last Legis
lature for the annual expenses of,
and to be paid out of the General
Fund. You will find the items in
the appropriation bill. I think that
statement is clear and concise.
Mr. KIRKPATRICK. Mr. Presi
dent, I am of ' the opinion of the
gentleman from Otoe, (Mr. NEW
SOM) that this statement is not full
enough. The Auditor is requested to
make a report of the .outstanding in
debtedness of the State unpaid at this-
date. Now can the appropriation
made by the Legislature be the out
standing indebtedness of the State.
Are the calculated expenditures for
the next year the State indebtednessr
Mr. LAKE. Mr. President. The
annual expenses on the General Fund
here must have reference to the ap
propriations of the last Legislature,
They cannot certainly refer to those
that have been paid. If this resolu
tion was adopted all the Auditor
could do would be to refer to the ap
propriation of the last Legislature
and give the substance of that ap
propriation. This can be found out
more readily by a resort to the Sec
retary of the State; much more
readily than to resort to the Auditor,
he has undoubtedly grouped the

EXPLANATION AUDITOR'S REPORT

123

Saturday]

MCCANN— NEWSOM-KIRKPATRICK

[June 24

whole bill and found the amount to
be $200,000. The reason why I
think he has done this is because un
der the head of resources he has
given the "delinquent General Fund
taxes." It seems to me it is plain
enough, unless you desire to know
the precise items which go to make
up this appropriation of the Legis
lature which foots out $200,000.
Mr. McCANN. Mr. President, it
will be borne in mind that the fis
cal year closes on the first of Novem
ber of the present year. If the whole
appropriation, made by the Legisla
ture is meant it must be for two
years; but I think this $200,000 is
the expenses of this year, and the re
sources from which this is to be met
is the delinquent general taxes. Be
fore the departure of the Treasurer
the other day in his office, he stated
to me that one quarter of a million
was a fair estimate of that tax, and
I think that is so. I think this re
port is all that was asked for by the
resolution; therefore I do not think
it is necessary to refer this back to
the Auditor unless you wish to know
the items which make up this $200,-
000. Mr. NEWSOM. Mr. President.
The reason I introduced this resolu
tion was simply this, I asked several
gentlemen what that item meant and
none of them could tell me, and I
suggested that there was nothing in
the report of the Auditor from which
any gentleman can tell what that is.
The gentleman from Douglas says he
supposes it is the appropriation made
by the last Legislature. I suppose so
too, but I do not know it. nor any
other gentleman in the house so far

as I can learn. If the last Legisla
ture made that amount of an appro
priation, I would like to know it,
and the items for which it was made
and how it is distributed throughout
the State.
Mr. KIRKPATRICK. Mr. Presi
dent, the gentleman from Otoe, (Mr.
McCann) says that this amount is
necessary to run the expenses until
the end of the fiscal year the first of
November. I think the appropriation
was made for two years and not for
one, as the gentleman states, but can
that be the sense of this $200,000
item? The report asked for was the
indebtedness of the State outstand
ing and unpaid at this date. Can
this appropriation be in any sense of
the word the information asked for
by this resolution; I think not sir.
That information is not ascertained
from this report. I will state sir,
that your Committee cannot fix the
limit of the State indebtedness for
the future unless they have some idea
of what that indebtedness has been.
If this covers the outstanding indebt
edness of the State, your Committee
on State, County and Municipal In
debtedness and this Convention also,
wants to understand it.
Unless this matter can be most
satisfactorily explained, I am for the
adoption of the resolution of the
gentleman from Otoe (Mr. Newsom),
I am not particular where the infor
mation comes from; if the Auditor
is not the proper source of informa
tion, I hope it will be asked for from
some other source. '
Mr. HASCALL. Mr. President, I
think this statement is perfectly
clear, and as clear as a statement

124

ANNUAL STATE EXPENSES

Saturday]

HASCALL— LAKE— MCCANN

[June 24

could be made, in speaking of out
standing indebtedness, he says
"Outstanding warrants (General
Fund) $130,000, outstanding war
rants (Building Fund) $40,000." It
is very plain, the appropriation is
very plain, and in that instance, war
rants have been drawn. The Legisla
ture may make appropriations for two
years which they do, and the year,
as has been stated by the gentleman
from Otoe, (Mr. McCann) terminates
at a certain period and there is no
notice taken of the fractional pare.
We have a certain period in the year,
when it commences and ends, the
latter item the gentleman speaks of
is "Annual expenses on General Fund
•$200,000." It does not say for "two
years" but "Annual". Gentlemen are
supposed to take notice of the law,
and the laws making these appropria
tions are accessible to every one.
They are kept in the Secretary's
office. It is very easy to enumerate
these expenses for this year. $15,-
000 was appropriated for this Con
vention; money was appropriated for
the Insane Asylum; moneys were ap
propriated for the Normal School;
moneys were appropriated for the
Deaf and Dumb Institute; moneys
were appropriated for the keeping
of the Penitentiary convicts. These
appropriations are made for the pres
ent year, and the annual expenses
are according to the appropriations.
Warrants may be drawn any time — ¦
they are liable to be drawn any mo
ment. Whenever a person presents
his claim, if correct, he draws his
warrant. Consequently this is as well
•defined as the Auditor could make it;
any further explanation would cer

tainly be useless, I am therefore op
posed to the adoption of a resolu
tion of that kind.
Mr. LAKE. Mr. President, on the
assurance of the members of the
Committee who have the subject un
der consideration it seems to require
the information asked. If it be
thought the source applied to is the
proper one for obtaining this infor
mation, I should be in favor of the
resolution. It may be that it is the
proper source and the Secretary of
State is not the proper person.
Mr. KIRKPATRICK. I was in
structed to seek this information in
the office of the Auditor.
Mr. LAKE. I think perhaps, Mr.
President, -it would do the members
of this Convention good, to see what
has been done with this money. Up
on reflection I am inclined to think it
will. When we see our annual ex
penses footing up $200,000 it is some
what astonishing to me to say the
least. I am inclined to think it best
that the members of this Convention
should be put in possession of the de
sired information. I shall therefore
support the resolution, if this is the
proper source to apply to.
Mr. McCANN. Mr. President, I
sincerely trust that the information
may come before the Convention, for
we shall soon be called upon to con
sider the financial issues of the State;
and I hope all information gentlemen
can avail themselves of, will be ob
tained. I suggest if the resolution is
to refer to the Auditor that it may
go to the Auditor. Any information
that may be in the possession
of the Auditor and not to be obtained
from his office, can be obtained from

ADJOURNMENT

125

Saturday]

NEWSOM-CAMPBELL-BALLARD

[June 24

the Secretary of State and Treasurer.
Mr. NEWSOM. As to the proprie
ty of the resolution going to the Au
ditor, the way I understand the work
ing of our State Government is this;
the Auditor enters on his books
every appropriation.
Mr. HASCALL. I correct the gen
tleman, only when the warrant is
drawn. Mr. NEWSOM. I do not accept the
correction because if the Auditor
does not have the information, I
would ask when is he to stop aud
iting and issuing warrants? He
must have every appropriation on his
books, and when accounts come in
to him he must audit them in pro
portion to the amount appropriated
by the Legislature, otherwise you
make the Auditor of this State a
disburser of the public money at
ieisure, not according to law. You
see the reason he must know what
the appropriations are. He does
know and for what purpose.
The PRESIDENT. Gentlemen, the
question is upon the motion of Mr.
Newsom. The motion was agreed to.
Adjournment.
Mr. CAMPBELL. Mr. President, I
move that when the Convention ad
journs it adjourn until Monday at
two o'clock.
Mr. BALLARD. I offer an amend
ment, and say ten o'clock Monday.
The PRESIDENT. The rule says
the longest time shall be put first,
so that the question put will be on
the motion of the gentleman from
Otoe (Mr. Campbell).
Mr. BALLARD. I call for the
ayes and nays.

The Secretary proceeded to can
the roll. The result was announced
— "yeas" 27, "nays" 17, as follows:
AYES.

Abbott,

Maxwell,

Boyd,

Newsom,

Campbell,

Philpott,

Estabrook,

Reynolds,

Grenell,

Scofield,

Griggs,

Sprague,

Hascall,

Stevenson,

Kenaston,

Thummel,

Kilburn,

Towle.,

Lake,

Vifquain,

Ley,

Wakeley,

McCann,

Weaver,

Majors,

Mr. President

Manderson,

f

NAYS— 17. '

Ballard,

Moore,

Cassell,

Parker,

Curtis,

Price,

Gibbs,

Robinson,

Granger,

Shaft,

Gray,

Speice,

Hinman,

Stewart,

Kirkpatrick

Thomas,

Lyon,

ABSENT AND NOT VOTING.

Eaton,

Parchen,

Mason,

Tisdel,

Myers,

Wilson,

Neligh,

Woolworth.

'i 1

Leave of Absence.
Mr. THOMAS. Mr. President, I
desire to ask leave of absence for
Mr. Majors until two o'clock Wed
nesday. Leave of absence granted NEM.
CON. Mr. GRENELL. I move the Con
vention now adjourn.
The motion was agreed to and the
Convention (at eleven o'clock) ad
journed.

126

ADDITIONAL CLERKS

Monday]

WAKELEY— ESTABROOK— TOWLE

[June 26

ELEVENTH DAY.
Monday, June 26, 1871.
The Convention was called to or
der at two o'clock p. m. by the Presi
dent. Prayer.
Prayer was made by the Chaplain
to the Convention as follows:
Almighty and allwise God, we ac
knowledge our dependence upon
Thee as we enter upon the duties of
another week. We pray we may
have the love of God in our hearts
and his blessings upon us. May it
please Thee to keep our hearts and
minds. These blessings we ask
through Jesus Christ our Lord. Amen.
Reading of The Journal.
The Secretary read the Journal of
the last days proceedings.
Leave of Absence.
Mr. WOOLWORTH. Mr. Presi
dent. I ask leave of absence until
to-morrow morning for Mr. Lake.
Leave granted.
Mr. NEWSOM. Mr. President.
I ask leave of absence until to-mor
row. I understand one of his child
ren is sick.
Leave granted.
Unfinished Business.
The Secretary read from the Jour
nal of Saturday as follows:
By Mr. WAKELEY.
RESOLVED: That the President
of the Convention be authorized to
employ any additional clerks which
may be necessary.
To. which Mr. ESTABROOK offered
the following substitute:
RESOLVED: That the Conven
tion do now proceed to elect an En
grossing and Enrolling clerk, who
shall do such duties as shall be pre
scribed by the President.
On motion of Mr. Campbell the

whole subject was postponed until
Monday next.
The PRESIDENT. Gentlemen, the
question is upon the Substitute.
Mr. THOMAS. Mr. President, I
would like to hear the substitute
read. The substitute is read by the Sec
retary again.
The PRESIDENT. The question
is upon the passage of the substitute.
Mr. HASCALL. Mr. President, I
call for the reading of the substitute
again. I did not hear it distinctly.
The PRESIDENT. The Secretary
will read the resolution and also the
substitute, again.
The Secretary reads the resolution
of Mr. Wakeley, and the substitute
offered by Mr. Estabrook.
The PRESIDENT. I will ask the
gentleman from Douglas (Mr. Es
tabrook) whether Mr. Wakeley con
sented to take the substitute.
Mr. ESTABROOK. No sir.
Mr. TOWLE. Mr. President. As
I understand the question now before
the House is this. I understand that
if we vote aye now, we vote to im
mediately proceed to the election of
Engrossing and Enrolling clerks.
The PRESIDENT. Yes sir.
Mr. TOWLE. This subject was well
discussed last week, and it seems to
me there is but little for these clerks
to do; there will be nothing for an
Enrolling clerk to do until the Con
stitution is finally adopted. I am in
formed by gentlemen who know that
there is no necessity for these clerks
at this time. That all that is neces
sary is an assistant clerk for our
present clerks. I don't know what
writing there is for an Engrossing

CLERKS— LEGISLATIVE REPORT

127

Monday]

ESTABROOK— HINMAN— MYERS

[June 26

clerk to do. The Committees are
all doing their own writing, the prob
ability is that all the reports to this
Convention will be drawn up and En
grossed by the Chairman of the Com
mittees themselves. For myself I am
willing, I am willing to do all the
writing connected with the Commit
tees I am on. On Friday, we will
adjourn probably for ten days, and
the pay of the clerks will go on. I
am in favor of the original resolution
of Judge Wakeley — that the Presi
dent employ such clerks as are need
ed from day to day.
Mr. ESTABROOK. Mr. President,
that this Convention will need
sometime during its progress, clerks
by whatever name you wish to call
them, to do the Engrossing and En
rolling for this Convention there is
no doubt. The duties of the Engross
ing clerk will begin as soon as bills
commence to be passed upon. My
object is to save expense. Now if
you elect these clerks they can per
form duties as assistants and
whenever you want Engrossing or
Enrolling done you have your
clerks ready for those duties. If
these clerks are appointed under this
order the President can assign them
duties as assistants until such time
as they are needed as Engrossing and
Enrolling clerks and so we can save
the expense of additional clerks. The
duties are not accurately described
any where, for Enrolling and En
grossing clerks, and while there is
no other duties, the President can in
dicate that they should assist the
present clerks.
-Mr. HINMAN. Mr. President, I
understand thes<- clerks have to work
until 12 o'clocfe et night and I don't

think this Convention should ask any
men to work through the whole day
and half of the night for three dol
lars. I don't think our clerks can
stand up under this work and I
think it would be economy to give
them necessary assistance.
Mr. GRIGGS. Mr. President, I
would be willing that the President
of this Convention should employ
such clerical assistance as may be
necessary but I am not willing to
employ an Enrolling and Engrossing
clerk at this time.
Mr. TOWLE. Mr. President, I
move that the further consideration
of the substitute be postponed until
two weeks from to-morrow.
The motion to postpone was agreed
to. The PRESIDENT. The question
now is upon the passage of the origi
nal resolution.
The Convention divided and the
resolution was agreed to.
Reports from Standing Committees.
Mr. MYERS. Mr. President, The
Legislative Committee have instruct
ed me to submit the following re
port. Mr. STEWART. Mr. President, I'
move that 200 copies of the report
be ordered printed for the use of the
Convention. Mr. MYERS. Mr. President, I de
sire to have the report read the first
time. Mr. WOOLWORTH. Mr. Presi
dent, as the report will be printed
and furnished to each member I
would object to the reading now to
save time.
Mr. MYERS. Mr. President, I
must insist upon the observance of

128

LEGISLATIVE ARTICLE

Monday]

MYERS' REPORT

[June 26-

the rule, that when an Article is pre
sented it must be read the first time.
By request Mr. Myers read the re
port as follows:
MR. PRESIDENT:
Your Committee on the Legislative
department present the following re
port: That they have considered the
various propositions submitted to
them by the Convention in reference
to this portion of the State Constitu
tion, and respectfully recommend the
following: 1. Legislative — Senators and Mem
bers. 2. Enacting Clause and Bills.
3. Enumeration and Apportionment.
4. Election of Senators.
5-6. Legislative Districts.
7. Who are Eligible.
8. Senatorial Classes.
9. Legislative officers and Contest
ed Elections.
10. Disqualifications of Senators and
Members.
11. Disqualification for office.
12. Pay and mileage of members of
the Legislature.
13. Persons ineligible as members of
the Legislature.
14. Crime a disqualification.
15. Impeachment.
,16. Impeachable officers.
17. Oath of Office.
18. Bills for Governor — Objections.
19. Concurrent orders and resolu
tion.
20. Appropriation Bills to Originate
in the House of Representatives.
21. Salt Lands vested forever in the
State.
22. Quorum for each House.
2 3. Senate and House may expel.
24. Journal and manner of voting.
25. Freedom of debate.
26. Stationery and printing.
27. Organizing House of Representa
tives.
28. Passage and signing of Bills.
29. Indebtedness due the State.

30 — 31—32. Bribery.
3 3. Privileges of Senators and Mem
bers.
34. Divorce.
35. Vacancies.
36. Revenue.
37. Vice and Immorality.
38. Public money and Appropriations.
39. Payment of money; statement of
expenses.
40. Ordinary expenses; casual defi
cits; appropriations limited.
41. Extra Compensation or Allow
ance.
42. Public credit not loaned.
43. Fuel, stationery and printing.
44. State hot to be sued.
45. Terms of office not extended.
4 6. Concerning roads— public and
private.
47. Draining and ditching.
48. Homestead and Exemption Laws.
ARTICLE II. — LEGISLATIVE.
Legislative Authority and Election.
fl. 1. The Legislative authority of
the State shall be vested in the Sen
ate and House of Representatives,
both to be elected by the people. The
Senate shall not exceed thirty-three
Senators, nor the House of Represen
tatives more than one hundred mem
bers. The Representatives shall be
chosen annually, by the citizens of
each county respectively, on the Tues
day succeeding the first Monday in
November. Senators shall be elected
for the term of three years, and rep
resentatives for the term of one year
from the day next after their gen
eral election. Enacting Clause.
fl. 2. The enacting clause of all
bills shall be: "Be it enacted by the
legislature of the State of Nebraska;"
and no law shall be enacted except
by bill.
No bill shall be passed unless by
the assent of a majority of all the
members elected to each branch of
the legislature, and the question upon
the final passage shall be taken im
mediately upon its last reading, and
the yeas and nays entered upon the

LEGISLATIVE ARTICLE

129

Monday]

[June 26

journal. No bill which may be passed by
the legislature shall embrace more
than one subject, and that shall be
expressed plainly and clearly in the
title. Enumeration and Apportionment.
fl. 3. An enumeration of the in
habitants of the state shall be taken
under the direction of the legislature
in the year one thousand eight hund
red and seventy-five, and at the end
of every ten years thereafter, and
the districts shall be so altered by
the legislature at the first session
after the return of every enumeration
that each senatorial district shall
contain, as nearly as may be, an equal
number of inhabitants excluding
aliens and Indians not taxed, and
shall remain unaltered until the
return of another enumeration, and
shall at all times consist of contigu
ous territory, and no county shall
be divided in the formation of a
senate district.
The members of the house of rep
resentatives shall be apportioned
among the several counties of the
state by the legislature, as nearly as
may be, according to the number of
their respective inhabitants, exclud
ing aliens and Indians not taxed, and
shall be chosen by districts.
The number of representatives
shall, at the several periods of mak
ing such enumeration, be fixed by the
legislature and apportioned among
the- several counties according to the
number of inhabitants in each.
Election of Senators.
fl. 4. The senators shall be
chosen for three years, by the citi
zens of the several senatorial dist
ricts, at the same time, in the same
manner, and at the same place, where
they shall vote for- representatives.
fl. 5. The number of senators
shall, at the several periods of mak
ing the enumeration before mention
ed, be fixed by the legislature, and
apportioned among the districts
9

formed as hereinafter directed, ac
cording to the number of inhabit
ants in each as shown by the United
States or other enumeration, and
shall never be less than one-fourth
nor greater than one-third of the
number of representatives.
ff. 6. The senators shall be
chosen in districts to be formed by
the legislature each district contain
ing such a number of inhabitants as
shall be entitled to elect not more
than three senators. When a dist
rict shall be composed of two or more
counties they shall be adjoining. No
city or county shall be divided in
forming a district.
Who are Eligible.
ff. 7. No person shall be a sena
tor who shall not have attained the
age of twenty-five years, and have
been a citizen and inhabitant of the
state three years next before his elec
tion, and the last year thereof an in
habitant of the district for which
he shall be chosen, unless he shall
have been absent on the public busi
ness of the United States or of this
state, and no person elected as afore
said, shall hold said office after he
shall have removed from such dist
rict. Senatorial Classes,.
fl. 8. Immediately after the sena
tors shall be assembled in conse-.
quence of the first election, subse
quent to the first enumeration, they
shall be divided by lot, as equally as
may be, into three classes. The
seats of the senators of the first class
shall be vacated at the expiration
of the first year; of the second class
at the expiration of the second year;
and of the third class at the expira
tion of the third year.
Time of Meeting.
If. 9. The general assembly shall
meet in the capitol on the first Tues
day of January in .every year, unless
sooner convened by the governor.

130

LEGISLATIVE ARTICLE

Monday]

[June 26

Legislative Officers and Contested
Elections.
fl". 10. Each house shall choose
its president and speaker, and other
officers. Each house shall judge of
the qualifications of its members.
Contested elections shall be deter
mined by a committee to be selected,
formed and regulate in such man
ner as shall be directed by law. A
majority of each house shall con
stitute a quorum to do business, but
a less number may adjourn from day
to day, and may be authorized by
law to compel the attendance of ab
sent members, in such manner and
under such penalties as may be pro-
Tided. Disqualification of Senators and
Members.
fl. 11. No person being a mem
ber of congress, or holding any judi
cial or military office under the
United States, shall hold a seat in
the legislature.
And if any person shall, after his
election as a member of the legis
lature, be elected to congress, or ap
pointed to any office, civil or mili
tary, under the government of the
United States his acceptance thereof
shall vacate his seat.
Disqualification for Office.
If. 12. No member of the legis
lature shall receive any civil appoint
ment within this state, or to the sen
ate of the United States, from the
governor, the governor and senate, Or
from the legislature, during the time
for which he shall have been elected;
and all such appointments, and all
votes given for any such member
for any such office or appointment,
shall be void.
Pay and Mileage of Members of the
Legislature.
fl. 13. The members of the legis
lature shall receive for their services
a sum not exceeding four dollars per
day, from the commencement of the

session; but such pay shall not ex
ceed in the aggregate four hundred
dollars for per diem allowance, ex
cept in proceedings for impeach
ment. When convened in extra ses
sion by the governor they shall re
ceive four dollars per day. They
shall receive the sum of one dollar
for every ten miles they shall travel
in going to and returning from the
state capitol, on the most usual route.
The president of the senate and
speaker of the house of representa
tives shall, in virtue of their offices,
receive an additional compensation
equal to one-third of their per diem
allowance respectively.
Persons Ineligible as Members of
the Legislature.
fl. 14. No person liable for pub
lic monies unaccounted for shall be
eligible to a seat in either house of
the legislature, or to any office of
profit or trust until he shall have
accounted for and paid over all sums
for which he may have been liable.
Crime a Disqualification.
ff. 15. No person shall be elig
ible to any office of profit or trust,
nor shall be permitted to exercise
the right of suffrage within this
state, who shall have been convicted
of bribery, perjury, or other infam
ous crime. Impeachment.
^ 16. The House of Representa
tives shall have the sole power of im
peachment, but a majority of all
members elected must concur therein.
All impeachments shall be tried by
the Senate, and when sitting for that
purpose, the Senators shall be upon
oath or affirmation to do justice ac
cording to law and evidence. When
the Governor of the State is tried
the Chief Justice shall preside. No
person shall be convicted without
the concurrence of two-thirds of the
Senators elected, but judgment in
cases of impeachment shall not ex
tend further than to removal from

LEGISLATIVE ARTICLE

131

Monday]

[June 26

office and disqualification to hold and
enjoy any office of honor, profit or
trust under this state; but the im
peached shall nevertheless be liable
to indictment and punishment ac
cording to law. No officer shall exer
cise his office after he shall have
been impeached, until he shall have
been acquitted.
fl. 17. The Governor, Secretary
of State, Auditor, Treasurer, Judges
of the Supreme and Districts Courts,
and all other elective State officers,
shall be liable to impeachment for
any misdemeanor in office.
Oath of Office.
fl. 18. Members of the Legislature,
and all other officers elective and Ju
dicial, except such inferior officers as
may be by law exempted, shall, be
fore they enter on the duties of their
respective offices, take and subscribe
the following oath or affirmation:
"I do solemnly swear (or
affirm, as the case may be) that
I will support the Constitution of
the United States, and the Con
stitution of the State of Nebras
ka, and that I will faithfully dis
charge the duties of the office of
 with fidelity, and acord-
ing to the best of my ability."
Bills for Governor and Objections.
^f 19. Every bill which shall have
passed both houses shall be presented
to the Governor. If he approves he
shall sign it, but if he shall not ap
prove he shall return it, with his ob
jections, to the house in which it
shall have originated, who shall en
ter the objections at large upon their
journal and proceed to reconsider it.
If, after such re-consideration, two-
thirds of that house shall agree to
pass the bill, it shall be sent, with the
objections, to the other house, by
which likewise it shall be reconsider
ed, and if approved by two-thirds of
that house, it shall become a law;
but in such cases the votes of both
houses shall be determined by yeas
and nays, and the names of the per
sons voting for or against the bill

shall be entered on the Journals of
each house respectively. If any bill
shall not be returned by the Governor
within ten days (Sundays excepted)
after it shall have been presented to
him, it shall be a law in like man
ner as if he had signed it, unless the
Legislature, by their adjournment,
prevented its return., in which case
it shall be a law unless sent back
within three days after their next
meeting. fl 20. Every order, resolution or
vote to which the concurrence of both
houses may be necessary (except on
a question of adjournment) shall be
presented to the Governor, and be
fore it shall take effect be approved
by him, or, being disapproved shall
be re-passed by two-thirds of both
houses, according to the rules of lim
itations prescribed in case of a bill.
fl 21. Any bill may originate in
either house of the Legislature, ex
cept bills appropriating money, which
shall originate only in the House of
Representatives, and all bills passed
by one house may be amended by the
other.Salt Lands Vested Forever in The
State.
fl 22. The Legislature shall never
sell or dispose of the saline lands be
longing to this State, hut may author
ize the purchase of contiguous lands
thereto- by authority of law, as may
be necessary for the convenience and
interest of the State.
Quorum for Each House.
ff 23. A majority of each house
shall constitute a quorum to do busi
ness, (except in cases of impeach
ment.) Each house shall determine
the rules of its own proceedings, and
be the judges of the elections, returns
and qualifications of its own mem
bers and shall choose its own officers.
Senate and House May Expel.
^f 24. Each house may determine
the rules of its procedings, punish its
members for disorderly behavior,

132

LEGISLATIVE ARTICLE

Monday]

[June 26

and with the concurrence of two-
thirds, expel a member, but not a
second time for the same cause; and
shall have all other powers necessary
for a branch of the Legislature of a
free State.
Journal and Manner of Voting.
fl 25. Each house shall keep a jour
nal of its proceedings, and publish
them, (except such parts as may re
quire secrecy) and the yeas and nays
of the members on any question
shall, at the desire of any two of
them, be entered upon the journal.
All votes in either house shall be
"viva voce."
The doors of each house, and Com
mittees of the whole, shall be open,
unless when the business shall be
such as ought to be kept secret.
Neither house shall, without the con
sent of the other, adjourn for more
than three days.
Freedom of Debate.
fl 26. For any speech or debate in
either house of the Legislature the
members shall not be questioned in
any other place.
fl 27. The Legislature shall provide
by law that all stationery required
for the use of the State, and all print
ing authorized and required by them,
to be done for their use or for the
State, shall be let by contract to the
lowest bidder; but the Legislature
may establish a maximum price.
No member of the Legislature or
other State officer shall be interest
ed, either directly or indirectly, in
any such contract.
fl 28. The mode of organizing the
house of Representatives at the com
mencement of each regular session,
shall be prescribed by law.
fl 29. Each bill and concurrent
resolution, shall be read at large on
three different days in each house,
and the bill, and all amendments
thereto, shall be printed before the
vote is taken on the final passage.
The presiding officer of each house,
shall sign in the presence of the
house over which he presides, while

the same is in session, and capable
of transacting business, all bills and
concurrent resolutions passed by the
Legislature. Indebtedness due The State.
ff. 30. The Legislature shall have no
power to release or relinquish in
whole or in part, the indebtedness,
liability or obligation of any corpor
ation or individual to this State, or
to any municipal corporation therein.
^ 31. Any person holding office un
der or by virtue of the laws of this
State, who, except in payment of his
salary, fees or perquisites, receives,
or consents to receive, directly or
indirectly, anything whatever of val
ue, or of personal advantage, or the
promise thereof, for performing or
omitting to perform, any official act
or, with the express or implied un
derstanding that his official action
or inaction is to be in some manner
or degree influenced thereby, shall be
deemed guilty of a felony, and on
conviction shall be punished as the
Legislature may provide.
fl32. Any person or persons offer
ing a bribe, if the same shall be ac
cepted, shall not be liable to civil or
criminal prosecution therefor.
But any person who offers or prom
ises such bribe, if the same shall be
rejected by the officer to whom it is
tendered, shall be deemed guilty of
an attempt to bribe, which is hereby
declared to be a felony, and on con
viction shall be punished as provided
by this article.
U 33. Any person charged with re
ceiving a bribe, or with offering or
promising a bribe that is rejected,
shall be permitted to testify in his
own behalf in any civil or criminal
prosecution therefor.
Privileges of Senators and Members.
If 3 4. Members of the Legislature
shall in all cases except treason, fel
ony or breach of the peace, be privi
leged from arrest, nor shall they be
subject to any civil process during
the session of the Legislature, nor

LEGISLATIVE ARTICLE

133

Monday]

[June 26

for fifteen days next before the com
mencement, and after the termina
tion of each session. Divorce.
fl 35. The Legislature shall not.
have power to enact laws annulling
the contract of marriage in any case
where by law the courts of the State
are or hereafter may be empowered
to decree a divorce. Vacancies.
fl 36. When vacancies occur in
either house the president of the Sen
ate, or speaker of the House in which
the vacancy may occur, shall issue
writs of election to fill such vacan
cies. fl 37. All bills for raising revenue
shall originate in the House of Rep
resentatives, but the Senate may pro
pose amendments, as in other bills.
No money shall be drawn from the
Treasury but in consequence of ap
propriations made by law.
Vice and Immorality.
If 38. The Legislature shall provide
by law for the suppression of vice and
immorality in this State, and shall
never authorize any games of chance,
lottery or gift enterprise, under any
pretense or for any purpose whatever.
Public Money and Appropriations.
fl 39. The Legislature shall make
no appropriations of money out of
the treasury in any private law. Bills
making appropriations for the pay of
members and officers of the Legis
lature, and for the salaries of the
officers of the government, shall con
tain no provision on any other sub
ject. The salary of any officer shall
not be increased for any term for
which he may have been appointed
or elected.
If 40. No money shall be drawn
from the treasury except in pursu
ance of an appropriation made by
law, and on the presentation of a
warrant issued by the Auditor
thereon; and no money shall be di

verted from any appropriation made
for any purpose, or taken from any
fund whatever, either by joint or sep-
erate resolution. The Auditor shall,
within 60 days after the adjournment
of each session of the Legislature
prepare and publish a full statement
of all money expended at such ses
sion specifying the amount of each
item, and to whom -and for what
paid. fl 41. Each Legislature shall pro
vide for . all the appropriations nec
essary for the ordinary and contin
gent expenses of the government un
til the expiration of the first fiscal
quarter after the adjournment of the
next regular session, the aggregate
amount of which shall not be increas
ed without a vote of two-thirds of
the members elected to each house,
nor exceed the amount of revenue
authorized by law to be raised in
such time; and all appropriations,
general and special, requiring money
to be paid out of the State Treasury
from the funds belonging to the
State shall end with such fiscal quar
ter; PROVIDED, that the State may
meet casual deficits or failures in rev
enues, contract debts never to exceed
in the aggregate $2 50,000; and mon
ies thus borrowed shall be applied to
the purpose for which they were ob
tained, or to pay the debt thus creat
ed, and to no other purpose; and
no other debt except for the purpose
of repelling invasion, suppressing in
surrection or defending the State in
war, (for payment of which the faith
of the State shall be pledged) shall
be contracted unless the law author
izing 'the same shall, at a general
election, have been submitted to the
people, and have received a major
ity of the votes cast for members of
the Legislature at such election. The
Legislature shall provide for the pub
lication of said law for three months
at least, before the vote of the people
shall be taken upon the same; and
provision shall be made at the time
for the payment of the interest an
nually as it shall accrue, by tax
levied for the purpose, or from other

134

LEGISLATIVE ARTICLE

Monday]

[June 26

sources of revenue, which law pro
viding for the payment of such inter
est by such tax shall be irrepealable
until such debt is paid. And provid
ed, further, that the law levying
the tax shall be submitted to the peo
ple with the law authorizing the
debt to be contracted.
If 42. The Legislature shall never
grant or authorize extra compensa
tion, fee or allowance to any public
officer, agent, servant or contractor,
after service has been rendered or a
contract made, nor authorize the pay
ment of any claim or part thereof,
hereafter created against the State.,
under any agreement or contract
made without express authority of
law; and all such unauthorized
agreements or contracts shall be null
and void. PROVIDED, the Legisla
ture may make appropriations for ex
penditures incurred, in suppressing
insurrection or repelling invasion.
|f 43. The State shall never pay,
assume or become responsible for the
debts or liabilities of or in any man
ner give, loan or extend its credit to
or in aid of any public or other cor
poration, association or individual.
Miscellaneous.
|f 44. The Legislature shall provide
by law that the fuel, stationery and
printing paper furnished for the use
of the State, the copying, printing
binding and distributing the laws and
journals, and all other printing ord
ered by the Legislature, shall be let
by contract to the lowest bidder; but
the Legislature shall fix a maximum
price; and no member thereof, or
other officer of the State, shall be in
terested, directly or indirectly, in
such contract. But all such contracts
shall be subject to the approval of
the Governor, and if he disap
proves of the same there shall be a

re-letting of the contract in such
manner as shall be prescribed by law.
|f 45. The State of Nebraska shall
never be made defendant in any
court of law or equity.
|f 46. No law shall be passed which
"shall operate to extend the term of
any public officer after his election
or appointment.
|f 47. It shall be the duty of the
Legislature to pass such laws as may
be necessary for the protection of
operative miners, by providing for
ventilation when the same may be re
quired, and the construction of the
escapement shafts, or such other ap
pliances as may secure safety in all
coal mines, and to provide for the
enforcement of said laws by such pen
alties and punishments as may be
deemed proper.
|f 48. The Legislature shall provide
for establishing and opening roads
and cartways connected with a pub
lic road for private and public use.
|f 49. The Legislature may pass
laws permitting the owners or occu
pants of lands to construct drains
and ditches for agricultural and san
itary purposes across the lands of
others. |f 50. The Legislature shall pass
liberal homestead and pre-emption
laws. Mr. MYERS. I move that 200
copies be printed.
Motion agreed to.
Communications.
The PRESIDENT. Gentlemen, I
have a communication from the Au
ditor, which the clerk will read, if
there is no objection.
The Secretary read the communi
cation as follows.

Auditor's Office, Lincoln, Nebraska, June 26, 1871.
Hon. S. A. STRICKLAND, President Constitutional Convention:
Sir: — In reply to a resolution of your honorable body, dated June
24, 1871, requesting an explanation in general terms of the amount of

REPORT OF STATE EXPENSES 135

Monday] GILLESPIE— CURTIS [June 26

annual expenses on the General Fund.
I have the honor to submit the following as shown by the appro
priation bills passed at the eighth ses sion of the Legislature, and the ex
penditures authorized by statute: APPROP RIATIONS.
Deaf and Dumb (erection of buildings)  $15,000.00
Normal School (erection of buildings)  27,758.50
Insane Asylum (outstanding indebtedness)  19,317.97
Insane Asylum (expenses of 1871)  34,800.00
Building Powder Magazine  231.46
Immigration expenses  15,000.00
Legislative expenses  16,000.00
Impeachment trials  10,000.00
Constitutional Convention expenses  15,000.00
For the payment of persons  34,895.51
Improvement of Library (Law Division)  1,000.00
Publication of Laws of 1870-.  50.00
Copying Laws  249.80
Relief of Geo. W. Whitehead  1,200.00
Relief of John M. McDonald  200.00
Current expenses of 1871  65,178.87
Total  $255,882.11
EXPENSES AUTHORIZED BY STATUTE.
Wolf and Wild Cat Bounties  $1,500.00
Gopher  1,000.00
Fugitives from Justice  1,000.00
Insane expenses (fees)  8,,000.00
State Convicts (fees)  2,000.00
Expenses Sale of School Lands  5,000.00
Revenue Expenses  7,500.00
Total  $26,000.00
Appropriations brought forward  255,882.11
Grand Total  $2,81,882.11
The grand total, although consid erably larger than my estimate of
two hundred thousand dollars ($200,000), as the annual expenses on this
Fund, will, as several of the appropri ations will not all be paid this year,
about reach the average expenses that this fund pays annually.
Respectfully yours, etc.,
JOHN GILLESPIE, State Auditor.

The PRESIDENT. Unless there is

The Secretary read the resolution
follows:

some objection, 200 copies will be PREAMBLE
ordered printed. Believing that the Christian re-
a , , ligion is the foundation of our civil
fc>o oraerea. liberties,, that its benign, equalizing
Mr rnrRTTS Mr President I and Slorious principles have upheld
Mr. CURTIS. Mr. .president, i and perpetuated our Republican insti-
have a resolution to offer. tutions, and believing that a deseera-

136

SUNDAY LAWS— DAVID BUTLER

Monday]

CASSELL— WILSON— GRIGGS

[June 29

tion of the Christian Sabbath by se
cular pursuits and amusements have
a tendency to drag down and destroy
the religious influences of the coun
try and carry us back to the dark
ages, therefore
RESOLVED: That it is the sense
of this Convention that Statutory pro
visions to prevent the desecration of
the Christian Sabbath are eminently
right and proper in this and all other
States of our union.
Mr. CASSELL. Mr. President, I
move the adoption of the resolution.
Motion agreed to.
Mr. WILSON. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the privileges
of the floor of this Convention be
and the same are hereby extended
to David Butler.
Mr. MYERS. Mr. President, I
move the indefinite postponement of
the consideration of the resolution.
The PRESIDENT. Gentlemen, the
question is upon the indefinite post
ponement. Mr. WILSON. Mr. President, I
call for the ayes and nays.
Mr. PHILPOTT. I desire to have
the resolution read again.
The Secretary read the resolution
again. The PRESIDENT, being requested
to vote read from Cushing's Manual
the rule and remarks governing the
Vote of the President.
The Secretary called the roll, with
the following result; ayes— 28 nays
— 15, as follows:

AYES— 28

Abbott, Ballard,Boyd,

Eaton,Estabrook,Gibbs,

Granger,

-Neligh,

Gray,

Newsom,

Griggs,

Price,

Hascall,

Robinson,

Hinman,

Shaft,

Ley,

Speice,

Lyon,

Sprague,

McCann,

Stevenson,

Manderson,

Thummel,

Moore,

Thomas,

Myers,

Woolworth

NAYS — 15

Campbell,

Reynolds,

Cassell,

Scofield,

Curtis,

Stewart,

Kenaston,

Towle,

Kilburn,

Vifquain,

Kirkpatrick,

Weaver,

Parker,

Wilson,

Philpott,

ABSENT

OR NOT VOT)

Grenell,

Parchen,

Lake,

Price,

Majors,

Reynolds,

Mason,

Wakeley,

Maxwell,

So the motion to indefinitely post
pone prevailed.
Mr. GRIGGS. Mr. President, I
have a resolution I wish to present,
and I move you that it be referred to
the Committee on Judiciary.
The Secretary read the resolution
as follows:
WHEREAS: In answer to reso
lution of this Convention addressed
to the Secretary of State requesting
him to furnish the entire cost of the
public printing of this state up to the
present date (June 22nd 1871).
He replies that "the entire disburse
ment for that purpose was $20,851.-
00 and
WHEREAS: Such information
does not contain the information
sought by this Convention, therefore
be it
RESOLVED: That the Secretary
of State be requested to furnish the

DUELLING— MINORITY REPRESENTATIONS 137

Monday]

SPEICE- WOOL WORTH— CAMPBELL

[June 26

information sought by the original
resolution. Mr. Griggs' motion to refer to
Committee on Judiciary was agreed
to. Mr. SPEICE.. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That- there should
be a provision in the Constitution as
follows; Any inhabitant of this State
who shall hereafter be engaged in a
duel, either as principal or second,
or who shall send or accept a chal
lenge, or knowingly be the bearer of
a challenge to fight a duel, or shall
aid or assist, or in any manner en
courage duelling — any person so of
fending shall forever be disqualified
as an elector, and from holding any
office under the laws of this State and
be punished in addition, in such man
ner as shall be provided by law.
Mr. SPEICE. Mr. President, I
move the adoption of the resolution.
Mr. HASCALL. Mr. President,
that is a proposition to be engrafted
in our Constitution and our rules re
quire it be referred to the proper
Committee. Mr. SPEICE. Mr. President, I
move it be referred to the Committee
on Miscellaneous Subjects.
Motion agreed to.
Mr. WOOLWORTH. Mr.' Presi
dent, I wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Committee
on Electoral and Representative Re
form be instructed to draft and re
port a scheme for introducing into
the election of officers of the Execu
tive Department the principle of mi
nority representation.
Referred to the Committee on

Electoral and Representative Re
form. Mr. WOOLWORTH. Mr. Presi
dent, I offer another resolution.
The Secretary read the second
resolution of Mr. Woolworth as fol
lows: RESOLVED: That the Commit
tee on State Institutions and Public
Buildings inquire into and report to
this Convention upon the propriety
of creating the Office of Superintend
ent of Public Buildings, who shall
be a professional architect.
Referred to the Committee on
State Institutions and Public Build
ings. Mr. WOOLWORTH. I offer an
other resolution, Mr. President.
The Secretary read the resolution
as follows:
RESOLVED: That the Committee
on Finance and Revenue be instruct
ed to draft and report to this Conven
tion a system of accounting in the
Treasury, providing for a review by
some officer of the action of the Au
ditor upon every claim made against
the State before the issue of a war
rant therefor.
Referred to the Committee on Rev
enue and Finance.
Mr. CAMPBELL. Mr. President, I
wish to offer a resolution and move
its adoption.
The resolution was read by the Sec
retary as follows:
RESOLVED. That a Committee
of three be appointed to visit the In
sane Asylum with instructions to re
port to this Convention to-morrow
the condition of that institution.
Resolution adopted.
The PRESIDENT. Gentlemen, I
appoint as that Committee, Mr.
Campbell, Dr. Stewart, and Dr. Ken
aston; three physicians.
Mr. TOWLE. Mr. President, I

138

CUMULATIVE VOTING— JUDGES— ROADS

Monday]

TOWLE— GRIGGS -STEVENSON

[June 26

offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That at the time of
voting on the adoption of this Con
stitution, there shall be elected by
the qualified voters of the State at
large, three judges of the Supreme
Court, at the said election each quali
fied voter may cast, upon a single
ballot, three votes for one candidate,
or he may distribute the same, or
equal parts thereof among the candi
dates as he shall see fit; and the
three candidates highest in votes
shall be declared elected judges of
the Supreme Court.
Mr. TOWLE. I move Mr. Presi
dent the resolution be referred to the
Committee on Judiciary.
Motion agreed to.
Mr. GRIGGS. Mr. President, I
offer a resolution.
The Secretary read the resolution
as follow:
RESOLVED: That the State be
divided into three general divisions
for the election of judges of the Su
preme Court, to be denominated
Southern, Central and Northern, and
one of the judges of the said court
shall be elected in each of said dis
tricts by the electors thereof at such
time or times as shall be provided by
this Constitution.
Mr. GRIGGS. I move the adoption
of the resolution.
Motion agreed to.
Mr. STEVENSON. Mr. President,
I wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the title, in
fee simple, shall vest in any county
where land is taken for public roads
or highways, upon said counties in
which such lands so taken are situ
ated, paying, or tendering to the
owner, or guardians of such lands
the actual value thereof.

Mr. HASCALL. Mr. President, I
move it be referred to the Miscellan
eous Committee.
Mr. STEVENSON. The proper
Cqmmittee, Mr. President to refer it
to, would be the Committee on Roads.
I think the gentleman is disposed to
refer too many resolutions to the Mis-.
cellaneous Committee.
The PRESIDENT. The question
will be upon the reference to the
first named Committee.
Mr. HASCALL. Mr. President, I
withdraw my motion.
The motion to refer to the Com
mittee on Roads, was then agreed
to. The PRESIDENT. For the infor
mation of the members of the Con
vention. I will say that Mr. Mason,
Chairman of the Committee on Bill
of Rights, has handed in his report.
It can be taken up, but I believe he
is not here. Mr. Woolworth, Chair
man of the Committee on Executive
has also reported. That report can
be taken up and made the order of
the day for tomorrow, if it is desired.
Mr. McCANN. Mr. President, I
will be glad if the report of the Ex
ecutive Committee be taken up, since
Mr. Mason is not here and Mr. Wool-
worth is.
Mr. ESTABROOK. Mr. President,
before anything is done in Committee
of the Whole, I hope the Bills will
be brought in printed, in the usual
form to be amended.
The PRESIDENT. The Clerk in
forms me that the Bills will be on
the desks of the members tomorrow
morning. Mr. BALLARD. Mr. President, I
move we adjourn until 10 o'clock

CONDITION OF INSANE ASYLUM

139

Tuesday]

MAXWELL— CAMPBELL

[June 27

tomorrow morning.
The motion was agreed to.
So the Convention (at three
o'clock and fifteen minutes) adjourn
ed.

TWELFTH DAY.
Tuesday, June 27, 1871.
The Convention met at 10 o'clock
A. M., and was called to order by the
President. Prayer.
Prayer was offered by the Chap
lain to the Convention as follows:
Almighty and most merciful God,
be thou pleased, we pray, thee, to
accept our thanks for thy great love.
May we never forget how much we
are indebted unto Thee for the peace
of our land and may it please Thee,
that we may have above us the pro
tection of our flag and the laws, and
may our actions have ever in view
the protection of all the people.
Amen. Reading of the Journal.
The Journal of the last day's pro
ceedings was read and approved.-
Reports of Standing Committees.
When the Committee on Rights
of Suffrage was called, the Chairman,
Mr. MAXWELL, said: Mr. Presi
dent, the Committee on Rights of
Suffrage made a report on Satur
day morning and it was ordered
•printed, but I understand it has been
lost or mislaid.
The Secretary stated that the or
iginal report had been placed into
the hands of the Secretary of State
for printing and he was informed
that it had been lost, but that he had
seen a copy of the report printed in

the "Daily State Journal" this morn
ing. Mr. MAXWELL. Mr. President,
I will state that Mr. Gere applied to
me for a copy on Saturday morning.
He has published it, 1 think essen
tially as made by the Committee.
The PRESIDENT. It would be
well for the Chairman of the Com
mittee to wait on the Secretary of
State and find out about it.
Mr. CAMPBELL. Mr. President,
the Select Committee appointed yes
terday to examine the Insane Asylum
wish to present their report.
The Secretary read the report as
follows: Mr. President, your Committee
which was appointed to visit the In
sane Asylum, and to report the con
dition of said institution to this Con
vention, would beg leave to report.
The building is a low, two-story
frame building, sixty feet long by
eighteen wide, with a shed room at
tached of the same length.
In this building are packed forty-
four persons. The male patients,
some twenty-five in number, are all
in the other room, some of them
very desperate characters.
The females are in the upper story
of the main building, in little rooms
of eight feet square, without venti
lation. Your Committee are of the
opinion that if those unfortunate
creatures remain where they are
through the summer they will be all
sick before the expiration of the
year — in fact some are now sick.
Your Committee are also of
opinion that it would be better to
turn them out than to keep them
confined where they can neither have
exercise, air, nor medical attention.
Your Committee would recommend
the following resolution:
RESOLVED: That the superin
tendent of the Insane Asylum be and
is hereby requested to procure a

140 EMIGRATION BOARD— COMMITTEE REPORTS

Tuesday]

LEY— McCANN— HASCALL

[June 27

more suitable building for the com
fort of the insane.
The resolution was agreed to.
Presentation of Resolutions.
Mr. LEY. I have a resolution.
Resolution read by the Secretary
as follows:
RESOLVED: That the President
and the Superintendent of the State
Board of Emigration be and they are
hereby requested to furnish the Con
vention with a full, complete, account
an itemized statement of the expend
itures of said Board, and for what,
and when, each item of expense was
incurred. How much has been paid
or allowed to each member of said
Board. How much has been paid
for printing and to whom; was
there any advertisement for the nec
essary printing, and invitation for
bids to do said printing, and was the
same given to the lowest bidder.
How many are now in the employ
of said Board of Emigration and
what are their names, age, nativity,
and former occupation, the names,
ages and occupation of all agents and
employees of said Board and how
much has been paid each, and in
brief the summary of all the acts of
said Board.
Mr. LEY. I move the adoption
of the resolution.
The motion was agreed to.
Mr. McCANN. Mr. President, I
have a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That so much of the
communication of the Auditor of
State under date of the 26th June,
1871, as is comprised in the two
items, "Payment of persons $34,-
89 8.50" and "Current expenses of
1871 $65,178.87", be respectfully re
turned to the Auditor requesting the
items both as to persons to whom
paid, for what services and what ex
penses. Mr. McCANN. Mr. President, I

move the resolution be adopted.
The motion was agreed to.
Mr. HASCALL. Mr. President, I
have a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Secretary
be and he is hereby directed to retain
in his possession the original of the
reports of Standing Committees of
this body and to furnish copies of
the said reports for the public print
er. Mr. HASCALL. I move the adop
tion of the resolution and will say
why I desire that it should be done.
I find that from remarks dropped
here that our Secretary has suffer
ed an original report of a Standing
Committee to go from this body,
which has gone to a printing office
not doing public printing and has
been lost. It is very improper that
any document belonging to this body
should go from it. If there is any
printing to be done the Secretary
should furnish a copy. If the Sec
retary has not time to make a copy
we must employ help to do this.
Mr. STEWART. I have no objec- '
tion to the adoption of the resolution.
I understand the report did not go
into the hands of any office not doing
public printing. I do not wish any re
flections be cast on parties unjustly.
I wish this responsibility to rest on
the parties who are responsible.
The PRESIDENT. I understood-
the' gentleman from Cass to say this
morning that he gave a copy himself
to the newspaper that published it.
Mr. MAXWELL. I will say that
I furnished the copy to Mr. Gere; I
have read it and see it is the verbatim
report.

PENITENTIARY INSPECTORS

141

Tuesday]

HASCALL— MAXWELL— SCOFIELD

[June 27

Mr. HASCALL. I was laboring
under a misapprehension as to how
the copy was obtained. I understood
that the copy was obtained by the
printer setting the type from the or
iginal. It is proper that the original
should be retained here. Without
wishing to censure any one for this
transaction I would like this resolu
tion to pass. Whatever printing is
done by the public printer the work
should be done from "copy.
Mr. MAXWELL. My observation
has been that where a paper is ord
ered printed, the bill itself goes to
the printer. There has been no order
made in this body to keep the reso
lution here. The proper way is to
keep the original and send the copy,
but it cannot always be done. The
report has simply been misplaced,
and I presume will be replaced.
The PRESIDENT. It would take
but a moment to find out what the
Secretary of State did with it, the
Secretary informs me he passed it
there. I will take the liberty to ask
the Chairman of the Committee on
Suffrage to wait upon the Secretary
of State and see what was done with
it. Mr. ESTABROOK. What Secre
tary, may I inquire, is referred to
in the resolution.
Mr. HASCALL. I will say, when
we speak of the Secretary, we mean
our Secretary, when we mean the
Secretary of State we say so.
Mr. ESTABROOK. Do I under
stand it has gone to the Secretary
of State officially?
The PRESIDENT. Yes, sir.
Mr. ESTABROOK. How came

it into the hands of the Secretary
of State?
The PRESIDENT. For the pur
pose of having it printed.
Mr. HASCALL. This resolution
is to require our Secretary to return
the original and furnish a copy for
printing, that will obviate the nec
essity of the original going to the
Secretary of State.
Mr. ESTABROOK. I think we
will find now if we have saved a
little time, by refusing to employ the
necessary clerical force and remind
the gentleman that we may be losing
a little at the bung hole.
Mr. TOWLE. Mr. President, I
move that the further consideration
of this subject be indefinitely post
poned. Mr. HASCALL. If the gentleman
will permit I would like to withdraw
the resolution.
Leave granted NEM. CON.
Mr. SCOFIELD. Mr. President, I
have a resolution I would like to
submit. The Secretary read the resolution,
as follows:
RESOLVED, That the Peniten
tiary Inspectors be requested to fur
nish to this Convention a full and
complete statement of the amount
of money received by them as such
Inspectors and from what sources
the amount of money expended by
them as such Inspectors in the con
struction of the State Penitentiary;
the quantity of public lands sold by
them, with a description of the same,
and the price paid per acre for which
it was sold; the number of persons
which are now or have been employ
ed by them, exclusive of the laborers
upon the penitentiary building, and
the salaries paid such persons for
their services; the number of officers

142

MINORITY REPRESENTATION

Tuesday]

ROBINSON -MAXWELL— ESTABROOK

[June 27

connected with the penitentiary,
and their salaries; and also a state
ment of the cost of the care and cus
tody of the State prisoners since
they have been under the charge and
control of said Inspectors, and the
number of prisoners now confined
in the penitentiary.
Mr. SCOFIELD. I move the adop
tion of the resolution.
Motion agreed to.
Mr. ROBINSON. Mr. President, I
have a resolution to offer.
The Secretary read the resolution,
as follows:
RESOLVED: That the principle of
minority representation is eminently
just and right and ought to be adopt
ed in all our elections, where prac
ticable to be carried out.
Mr. ROBINSON. Mr. President, I
move the adoption of the resolution.
Mr. MAXWELL. Mr. President,
I do not know that I am in favor of
the adoption of minority representa
tion, as a principle. This is a matter
which seems to me to forestall the
action of the Convention. As a pro
position that we are in favor of this
to apply in all departments is a
broad proposition, and rather pre
mature to attempt to bind this Con
vention until we fully discuss this
question in all its bearings. If it is
thought best to adopt this, as a pro
position, then I am in favor of it.
But to adopt it without discussion
is premature. After we have exam
ined this question it may be we shall
not think so much of it as we do now.
What is minority representation?
We speak of it and we fully under
stand exactly the term. The people
are supposed to be represented by
a party who is elected as their officer.
It is the people who speak. It is

true a majority of the votes elect,
but they are still elected as a voice
of the people. It is proposed to give
those who are in the minority a voice
also, and I hope this resolution will
not be adopted until we hear the
articles proposed to be introduced as
a part of the Constitution.
Mr. GRIGGS. Mr. President, I
move you that this resolution be in
definitely postponed.
Mr. ESTABROOK. Mr. President.
It seems to me that this comes within
the rule that requires those matters
that are to be incorporated in the
articles, to be referred without argu
ment. I move that it be referred to
the Committee on Electoral and Re
presentative Reform, without debate.
Mr. GRAY. Mr. President, I think
a motion to indefinitely postpone
takes precedence.
Mr. ESTABROOK. I don't think
it does any such thing. It can only
be suspended by a vote of two-thirds
of the body.
Mr. STEWART. Mr. President, Is
this a proposition to amend the Con
stitution? I did not so understand
it. Mr. MYERS. I will ask the gentle
man who made the motion to indefi
nitely postpone to withdraw it and
substitute that it lay on the table.
Mr. GRIGGS. I accept the amend
ment. The PRESIDENT. I will read the
rule, No. 36.
"All propositions presented to the
Convention relating to the provisions
or frame of the Constitution, shall
in the first instance be referred to an
appropriate standing committee,
without debate, except as to the com
mittee to which the reference shall

MINORITY REPRESENTATION

143

Tuesday]

ROBINS ON— WOOL WORTH

[June 27

be made."
The motion to commit is in order,
unless the Convention suspend the
rule by a two- thirds vote.
Mr. ROBINSON. Mr. President,
I am of the opinion that this is not
a proposition to amend the Constitu
tion in any way. I intended to intro
duce the resolution for another pur
pose. I do not intend that this shall
forestall action. This is where this
thing ought to be introduced. We
are the judges as to whether it is
practicable. I insist on the motion
to adopt, if there is no other.
Mr. WOOLWORTH. Mr. President,
I hope this resolution will go to the
Committee on Electoral and Repre
sentative Reform. Whether we be
compelled to send it there by the
rules or not. It seems to me as if
the rule ought to be considered. The
object is, evidently to get a matured
opinion from the Committee upon the
subject referred to them, so that with
such a matured opinion the members
of this body may be informed upon
the subject. Hence it may act with
wisdom and with consideration.
Now here is a general principle enun
ciated: it is enunciated here in very
broad terms. As a friend of minority
representation myself, I am not al
together certain that I shall vote for
this resolution, if pressed to do so
at this time. As the gentleman from
Cass (Mr. Maxwell) suggested, it is
a matter that needs to be looked at
in every aspect. And when it is
sought to apply it universally to
every department of the government,
and to the fullest extent, it may be a
step quite too long for even me to
take; although I say now, with the

principle I am content, and for the
principle, if it shall seem to me em
inently necessary, I shall contend.
Now, I hope this resolution will take
the ordinary course and go to the
Committee which has the matter gen
erally in charge to be considered by
that Committee maturely in all its
aspects, so that it may give us its
deliberate opinion; inform us not on
ly upon the subject of minority rep
resentation, as it shall be applied to
one, but to every department of the
body, and then we may act not hast
ily, as is proposed, I am afraid now.
Not hastily but after matured re
flection and consideration. Now, I
think the rule, in the spirit of it, if
not with the letter, requires that the
matter shall take that course, and
that it be sent to the Committee.
Now, suppose this be a mere general
proposition, some general subject
with reference to civil polity why, it
is not a proper subject for us to waste
our time and breath upon. We are
here for a certain specific duty, and
that is to propose to the people of
this State a Constitution complete
in all its parts or amendments to the
present Constitution, whichever they
please; and not to discuss general
propositions of civil polity. This is
therefore, if it has any business be
fore us at all, a proposition relating
to the framing of the Constitution;
it is a general proposition, but never
theless it is a proposition relating to
the frame of the Constitution; and
therefore it ought to take preced
ence. Mr. ROBINSON. If the Chair is in
any doubt, I withdraw my motion to
adopt.

144

EXPENSE OF INSANE

Tuesday]

ROBINSON - HASCALL

[June 27

The PRESIDENT. Gentlemen;
the question is this — I shall not treat
this as a proposition to amend the
Constitution, but in the sense it is
understood by the gentleman from
Lancaster himself. A motion is made
to lay upon the table, one to postpone
indefinitely, and another to commit.
Mr. ESTABROOK. In our ordi
nary elections this principle —
Mr. MYERS. The gentleman is
out of order.
The PRESIDENT. The question is
upon the motion to lay upon the
• table. Mr. ROBINSON. Mr. President, I
call for the "ayes" apd "nays."
Mr. HASCALL. Mr. President, If
the Secretary will be kind enough to
read the resolution again.
The resolution is again read by the
Secretary. The PRESIDENT. Gentlemen;
the question is upon the motion to
lay upon the table. As many as are
in favor of laying the resolution upon
the table, will as their names are
called, answer "aye," those of a
contrary opinion will answer "no".
The Secretary proceeded to call the
roll. The result was then announced —
yeas 22, nays 23 — as follows:
YEAS-

NAYS-

Abbott,

Kirkpatrick

Ballard,

Lyon,

Cassell,

Maxwell,

Curtis,

Myers,

Eaton,

Neligh,

Gibbs,

Parker,

Granger,

Price,

Gray,

Reynolds,

Griggs,

Sprague,

Hinman,

Weaver,

Kenaston,

Wilson,

Kilburn,

Boyd,

Shaft,

Campbell,

Speice,

Curtis,

Stevenson,

Estabrook,

Stewart,

Hascall,

Thummel,

McCann,

Thomas,

Manderson,

Towle,

Moore,

Vifquain,

Newsom,

Wakeley,

Robinson,

Woolworth,

Scofield,

Mr. President

ABSENT

OR NOT VOTING.

Grenell,

Parchen,

Lake,

Philpott,

Majors,

Tisdel — 7.

Mason,

So the motion was not agreed to.
The PRESIDENT. Gentlemen;
the question is now upon the com
mitment of the resolution.
The motion to commit was agreed
to. Mr. HASCALL. Mr. President, I
offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Auditor
be and he is hereby requested to fur
nish to this Convention a full and
detailed statement of all expendi
tures made on account of the Insane
of the State, prior to this date, ex
cept for the erection of the building
for the insane totally destroyed by
fire; giving the date of each expend
iture, and for what expended.
Mr. MYERS. Mr. President. I
move the adoption of the resolution.
Mr. ROBINSON. I call for the
reading of it again, Mr. President.
The resolution is again read by
the Secretary.
The motion to adopt is agreed to.
Mr. GRIGGS. Mr. President, will
you, out of the usual order, accept
the report of the Committee on

TOWNSHIP ORGANIZATION

145

Tuesday]

GRIGGS-GRAY— MYERS

[June 27

Township and Precinct Organiza
tions? Leave being granted the Commit
tee reported out of the regular or
der of business.
The Secretary read the report as
follows: Mr. PRESIDENT — Your Com
mittee on "Township and Precinct
Organization," beg leave to report
the following sections to be incor
porated in the Constitution, all of
which is respectfully submitted.
N. K. GRIGGS, Chairman.

Sec-

-The Legislature at its

next general session shall provide by
geu-o'-al law for township organiza
tion, under which any county may
organize whenever a majority of the
legal voters of such county voting at
any general election, shall so deter
mine; and whenever any county shall
adopt township organization, so
much of this Constitution as pro
vides for the management of the
fiscal concerns- of said county by the
Board of County Commissioners,
may be dispensed with, and the
affairs of said county may be tran
sacted in such a manner as the Legis
lature may provide; and in any
county that shall adopt township
organization, the question of con
tinuing the same may be submitted
to a vote of the electors of such
county at a general election in a man
ner that shall hereafter be provided
by the Legislature, and if a majority/
of all the votes cast upon that ques
tion shall be against township organi
zation, then such organization shall
cease in said county, and all laws in
force in relation to counties not hav
ing township organization shall im
mediately take effect and be in force
in said county. No two townships
shall have the same name, and the
day of holding the annual township
meeting shall be uniform throughout
the ©tate.
Sec.  There shall be elected in
10

each of the counties in this State,
three officers, who shall be styled
"The Board of County Commission
ers," whose term of office shall be
three years, and who shall hold ses
sions for the transaction of county
business as shall be provided by
law, PROVIDED, That the County
Commissioners now elect in the sev
eral counties of the State shall hold
their office for the term for which
were elected.
Mr. GRAY. Mr. President, I move
that the report -be received, and that
the sections be read the first and sec
ond time, and referred to the Com
mittee of the Whole, in pursuance of
rule 50. I have no desire to hurry
this matter over without considera
tion that is all I desire to state
with reference to it. If there is no
serious objections to any of these sec
tions, I am willing to take any other
course to get the matter before the
Convention. Mr. MYERS. I hope, Mr. Presi
dent, the gentleman will waive his
motion until the proposition is print
ed; that has been the course pursued
heretofore. If the gentleman will
wait until the proposition is printed
and before the Convention, the sec
tions can then be discussed.
Mr. GRAY. My idea in sending it
to the Committee of the Whole be
fore it is printed, is this: There is
another Committee on Counties and
I have thought it very probable that
Committee will report something as
to county organizations, and I desire
their report to be considered in con
nection with this report, before the
Committee of the Whole.
Mr. HASCALL. I am unwilling to
consider any proposition in .Commit
tee of the Whole, unless it is printed

146

REPORT FROM INSANE ASYLUM

Tuesday]

LEY— SPRAGUE— WOOLWORTH

[June 27

and put upon our desks. This is an
important matter, too important a
matter to pick up and hurry through.
1 will make an amendment so that in
stead of reading the second time and
referring to the Committee of the
Whole, that 100 copies of the re
port be printed for the use of this
Convention. Mr. GRAY. I accept the amend
ment. The PRESIDENT. Gentlemen;
the question is upon the motion to
print 100 copies. The motion will
he considered adopted unless some
gentleman objects.
The motion was agreed to NEM.
CON. Mr. LEY. Mr. President, ' I wish
to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Superin
tendent of the Insane Asylum be, and
he is hereby requested, to communi
cate to the Convention, the number
of insane persons now in the Asylum,
their names, ages, and cause and
character of their insanity, from
what county such insane persons
come; whether there are any idiots
now confined in said institution, and
if so, the name and age of such and
from what county they come. What
written or printed instructions, if any,
are established for the observance of
those in charge of the institution.
What has been the expense of said
institution since January, 1871 up to
the present time, or so far as the
same can be ascertained, with an ite
mized statement for what such ex
penses was incurred. How much has
been paid to assistants and attend
ants, and what length of time each
served; and how much each has been
paid. How much has been paid for
fuel and when and how and to whom
paid; and in brief, a full, true and ac

curately itemized account of each,
and every item of expense since the
present Superintendent took charge
of said institution.
Mr. LEY. Mr. President, I
move its adoption.
Mr. SPRAGUE. Mr. President, I
would like to ask the gentleman what
is the object of the resolution. It
seems to me that we are going far
beyond our power in these inquiries,
and I think it is unnecessary to oc
cupy the time of the Convention with
such resolutions.
The PRESIDENT. The question is
on the adoption of the resolution.
The motion to adopt was agreed to.
Mr. WOOLWORTH. Mr. Presi
dent, I would like to enquire what
progress has been made in printing
the report of the Executive Commit
tee in bill form.
The PRESIDENT. The Secretary
informs me that it is printed and
was to be here this morning.
Mr. WOOLWORTH. If it is in or
der, Mr. President, I would move that
the report be made the special order
in the Committee of the Whole this
afternoon at 2 o'clock.
Mr. MYERS. Mr. President, I
would offer as an amendment, that
all of the reports that have been
made from Standing Committees to
the Convention, be made the special
order for this afternoon and that
they be taken up in their order.
Mr. WOOLWORTH. Mr. Presi
dent, I hope the amendment will not
prevail. If it should, the first subject
will be the report of the Committee
on Bill of Rights. The Chairman of
that Committee Judge Mason, is not
here; he has been detained away by
sickness in his family, and I am not-

COURT OF CLAIMS

147

Tuesday]

ROBINSON— MYERS— HA S CALL

[June 27

in favor of considering it in his ab
sence. Mr. ESTABROOK. Mr. President,
I am unwilling to make this a special
order until I know that it is print
ed. I think we may obtain the ob
ject of this motion by simply adjourn
ing until 2 o'clock.
The PRESIDENT. I have just
sent a page to ascertain if this re
port is printed.
Mr. WOOLWORTH. Mr. Presi
dent, I will withdraw my motion un
til we hear whether the report is
printed. Mr. HASCALL. Mr. President. I
move that we do now adjourn until
2 o'clock this afternoon.
The motion to adjourn was agreed
to. So the Convention, (at eleven
o'clock and ten minutes), adjourned.
AFTERNOON SESSION.
The Convention met at 2 o'clock
p. m. and was called to order by the
President. The Secretary called the roll.
Mr. ROBINSON. Mr. President, I
would enquire what order of business
we are under.
The PRESIDENT. None at all.
Mr. ROBINSON. I ask permis
sion to introduce a resolution, and
move its reference to the Judiciary
Committee. The Secretary read the resolution
as follows:
RESOLVED: The Supreme Court
in addition to its ordinary powers
and jurisdiction shall be a court of
Claims, and shall have exclusive
Jurisdiction to try and determine all
claims against the State in such cases
as the Legislature shall by law au
thorize to be brought before it. Its
powers, the effect of its decrees, the
execution and its mode of procedure

shall be as defined and prescribed by
law. The motion was agreed to.
Mr. MYERS. Mr. President, I
move that the Convention now re
solve itself into Committee of the
Whole and that the Article on Exe
cutive be referred to that Commit
tee for its consideration.
The motion was agreed to.
The PRESIDENT. Will the gen
tleman from Douglas (Mr. Myers)
take the Chair.
At 2 o'clock and ten minutes the
Convention went into Committee of
the Whole, Mr. Myers in the Chair.
The CHAIRMAN. Gentlemen of
the Committee, the Committee have
referred to them the Article relative
to the Executive, what order shall the
Committee make on the Article. The
Secretary will read the bill as refer
red to this Committee.
Mr. HASCALL. As we all have a
printed copy of the bill and it will
take considerable time to read it
through, I hope it 'will be taken up
by sections if there is no objection.
Mr. MANDERSON. I move that
the Secretary read from the original
manuscript that it may be compared
with the printed one.
The CHAIRMAN. I cannot enter
tain that motion.
Mr. MANDERSON. There has
been no revision of it.
The CHAIRMAN. The Secretary
will read the bill.
Mr. WOOLWORTH. I suppose he
will read from the original.
The CHAIRMAN. The Secretary
always reads from the printed bill.
Mr. ESTABROOK. Do I under-

148

REPORT ON EXECUTIVE DEPARTMENT

Tuesday]

MYERS— ESTABROOK— LAKE

[June 27

stand that a bill is always read from
the printed copy.
The CHAIRMAN. Yes,. sir.
Mr. WOOLWORTH. Supposing
the printer has made a mistake.
The CHAIRMAN. It is the duty
of the Committee to correct it.
Mr. ESTABROOK. I read —
The CHAIRMAN. The gentleman
will please take his seat.
Mr. ESTABROOK. I rise to sec
ond the motion of my colleague, that
the clerk read the original bill.
The CHAIRMAN. I declare it out
of order, the Secretary will read the
printed copy.
Mr. ESTABROOK. I appeal from
the decision of the chair.
The CHAIRMAN. There can be no
appeal in Committee of the Whole
the Secretary will read the bill.
Mr. LAKE. Mr. Chairman, the
Secretary is not reading correctly, it
is the report of the Executive Com
mittee by Mr. Woolworth, Chairman.
Mr. ESTABROOK. I rise to a
point of order, we are in Committee
of the Whole on the Executive Com
mittee bill.
The CHAIRMAN. That is not a
point of order, what was referred to
this Committee was the bill on the
Executive, the Secretary will read
the Bill and no other.
Mr. STRICKLAND. Mr. Chairman,
there is a mistake in the original
Bill, it was headed Judicial, the last
is Executive.
Mr. WOOLWORTH. I think it
should read the Committee on Ex
ecutive. The CHAIRMAN. The chair will
state what is before this Committee.
This Committee has referred to it by

the Convention, the bill only and no
report of any Committee is before it.
The Secretary will please to read the
first Article headed Executive De
partment, and omit all reports.
The Secretary read the bill as fol
lows: ARTICLE.
EXECUTIVE DEPARTMENT.
tf 1. Officers of the Department.
tf 2. Of the State Treasurer.
tf 3. Time of electing State Officers.
IT 4. Returns — Tie — C o n t e s t ed
Election.
ff 5. Eligibility for Office.
tf 6. Governor — Power and Duty.
IT 7. His Message and Statement.
tf 8. Convening the General As
sembly.
IT 9. Proroguing the General As
sembly.
tf 10. Nominations by the Governor.
tf 11. Vacancies may be Filled.
tf 12. Removals by the Governor.
tf 13. Reprieves — Commutations-
Pardons. 4. Governor as Commander-in-
Chief.
tf 15. Impeachment for Misdemean
or.
tf 16. Veto of the Governor.
tf 17. Lieutenant Governor as Gov
ernor.
tf 18. As President of the Senate.
tf 19. Vacancy in Governor's Office.
tf 20. Vacancy in other State Offices.
tf 21. Reports of State Officers.
tf 2 2. Great seal of State.
tf 2 3. Fees and Salaries.
tf 2 4. Definition of "Office."
tf 25. Oath of Civil Officers.
tf 26. Bonds.
EXECUTIVE DEPARTMENT.
tf 1. The executive department
shall consist of a governor, lieuten-
and governor, secretary of state, au
ditor of public accounts, treasurer,
superintendent of public instruction,
and attorney general, who shall each
hold his office for the term of two
years from the first day of January

PROCEDURE IN COMMITTEE OF THE WHOLE 149

Tuesday]

MYERS— CAMPBELL— HASCALL

[June 27

next after his election „ and until his
successor is elected and qualified;
but when that day shall fall on Sun
day the term of office shall commence
on the following day. They shall, ex
cept the lieutenant governor.reside
at the seat of government during
their term of office, and keep the pub
lic records, books and papers there,"
and shall perform such duties as may
be prescribed by law.
tf 2. The treasurer shall be in
eligible for office for two years next
after the end of the term for which
he was elected.
The CHAIRMAN. Gentlemen of
the Convention, this Article having
been read through the Secretary will
read the first section.
Mr. CAMPBELL. Mr. Chairman,
Is this an Article which it is proposed
to put into the Constitution at the
present time.
The CHAIRMAN. This is the Ar
ticle on "Executive", which was re
ferred to the Committee of the Whole
by the Convention.
Mr. HASCALL. I would say to the
gentleman that if we adopt it and rat
ify what the Convention have done,
of course it goes into the Constitution.
Mr. CAMPBELL. It says on the
sixth page of the "Rules of the Con
vention," in paragraph No.50 —
"Every Article which it is proposed
shall form part of the Constitution,
shall be read the first and second
times, and be referred to the Com
mittee of the Whole; and after it
shall have been considered in Com
mittee of the Whole and after the
amendments reported by the Commit
tee of the Whole, shall have been
acted on, it shall be open to amend
ment in the Convention." That we
have not done.

Mr. HASCALL. I will say Mr.
Chairman, the matter has been re-'
ferred to the Committee of the Whole
and we are now in session. There
was no objection to going in Com
mittee of the Whole without reading
twice before the Convention.
Mr. STRICKLAND. Mr. Chair
man. I would say I think this is all
iu regular order for the reason stated
by the gentleman from Douglas (Mr.
Hascall.) The CHAIRMAN. This Committee
is here by order of the Convention.
The Committee cannot amend any
of the rules of the Convention.
Mr. ESTABROOK. Mr. Chairman,
as this is the first time we have gone
into Committee of the Whole, we are
a little green, perhaps it will be well
to inquire into the matter. We are
in Committee of the Whole, of course,
but if there is no business which
can come before us legitimately, we
had better go out of Committee of
the Whole.
The CHAIRMAN. I will remind
the gentleman that while in Commit
tee of the Whole, we cannot discuss
the rules of the Convention. There is
only one remedy, which is, for the
Committee to rise and report pro
gress, and ask leave to sit again.
Mr. ESTABROOK. I find no fault
with the rules of the Convention. I
only deny that this Committee has
anything before it, as the Article
which is under consideration, has not
been read twice as the rules pre
scribe. Mr. LAKE. I would like to know
how the gentleman knows it has not
been read twice.
Mr. ESTABROOK. It has never

150

COMMITTEE OF THE WHOLE PROCEDURE

Tuesday]

STRICKLAND— LAKE-KIRKPATRICK

[June 27

been read but once before the Con
vention. Mr. McCANN. I move this Com
mittee do now rise and report pro
gress and ask leave to sit again.
The CHAIRMAN. Gentlemen,
the question is upon the motion that
the Committee rise, report progress
and ask leave to sit again.
Mr. STRICKLAND. Mr. Chairman
it loks like this is a "double chassing"
back and forth to no purpose. We do
not always stick to the rules while
in Convention. Gentlemen get up
in this body, and ask leave of absence
for instance, which is granted by the
President. This may not be in or
der, but is done because no one
objects. The Convention has gone in
to Committee of the Whole unani
mously. Now I hope we will not go
into this child's play — excuse me Mr.
McCann — of "rising and reporting
progress." It seems to me it is very
foolish. It is only going through a
motion — something as we do some
times in the military, "one time and
two motions." Suppose, for example
we rise and report progress and then
the bill is read, what then? It can be
read fifty times before it is passed up
on, but there is no advantage in this.
The rule in Legislative bodies pro
vides that bills shall be read a sec
ond and third time, but it is well
known that it is the custom to sus
pend the rules and read the bill the
second and third time by its title.
Mr. LAKE. It seems to me, Mr.
Chairman, that the course being
taken here in this Committee,
makes the Committee more important
than the Convention. Now the Con
vention, while in session, have di

rected this Committee to proceed to
consider this matter, and we have no
right, Mr. Chairman, to say that the
Convention has not done what it
ought to do. We have nothing to do
with the rules whatever. What real
difference does it make, whether the
bill has been read once, or twice, or
three times, cannot we consider the
matter, as it is, just as well as though
it had been read the second and
third times. We have nothing to do
with the rules of this Convention
while in Committee of the Whole.
I am opposed to rising at this time
and reporting progress, when it is
well known that we have made no
progress. I trust we will go on and
occupy a reasonable portion of the
afternoon in considering this matter.
The CHAIRMAN. The Chair has
given its opinion that this Article is
properly before this Committee, and
,has not entertained any other idea,
but it is bound to entertain the mo
tions made by members of this Com
mittee. Mr. KIRKPATRICK. If this bill
is not in order to come before the
Committee of the Whole, I don't see
how the gentleman can move to rise
and report progress when there is
nothing before it to consider.
Mr. ESTABROOK. Mr. Chairman,
We have to look sir, at its present
status, now when we rise, we report
something back to the house. We
have a bill here which has never
been read so much as once under the
rules, by the President of this body.
It has never gone through the rou
tine, and I deny, that we can consid
er this until it has had its regular
readings. Can you take up any bill

COMMITTEE OF THE WHOLE PROCEDURE

151

Tuesday]

ESTABROOK— HASCALL— MAXWELL

[June 27

you may se,e fit to bring before this
Committee, when it has never been
read. Now it is said to be silly
to go back. I ask if we are not act
ing silly now? What will be the re
cord which the reporters are making
of our debate on this subject? Now
there are substantial reasons why
this Article shall be read, as the rule
provides. I have had no opportunity
ofknowing whatis inthisbill. We do
not know what its merits are, we do
not know how to suggest amend
ments. Why when there is an Article
to go into and become a part of our
State Constitution it ought to have
its regular and proper readings. I
deny that this Committee has any
thing to do. This Committee might as
well take up last years almanac and
consider it as to consider this Article
which is now before us. It cannot
be before this Committee until it
comes in the regular channel. I de
ny that you can take up whatever
you find upon your tables, and bring
before this Committee; suppose you
had gone into the Committee room,
and had taken this bill out when it
had never been before this Conven
tion — could you do that? No sir,
I claim that this matter would be
right, just as much as it is right for
us to consider this Article which has
not come to us in the regular and
prescribed manner. I deny that this
paper is here at ali.
Mr. HASCALL. If the gentleman
who has just spoken had been speak
ing of the Legislature, perhaps his
objections might apply. We voted to
go into Committee of the Whole
upon this Article. We are now in
Committee of the Whole upon this

Article, and if we report favorably,
and the Article is embodied in the
Constitution, no one will deny its le
gality and validity. I am in favor ot
going ahead and finishing up this
matter, and report back our action to
the Convention.
Mr. MAXWELL. Mr. Chairman, I
think rule 39 settles this matter, this
rule reads "upon propositions being
committed to a Committee of the
Whole, they shall be first read
throughout by the Secretary. After
report of said Committee the propo
sition shall again be subject to de
bate or amendment, before a question
is taken". This rule seems to refer
to the Committee of the Whole. Now
after we have discussed this question
it must be reported to the Conven
tion for its action and when it
comes before the house they can do
as they please with it. I trust the
Committee will not rise.
Mr. NEWSOM. Mr. Chairman. I
wish to ask how often this Conven
tion can go into Committee of the
Whole upon any one Article of the
Constitution. The CHAIRMAN. As often as
they like. — The question is on the
motion to rise and report progress
and ask leave to sit again.
The motion to rise was not agreed
to. The CHAIRMAN. The Secretary
will read the first section, hurry up.
The Secretary read the first sec
tion as follows:
tf 1. The executive department
shall consist of a Governor, Lieuten
ant Governor, Secretary of State, Au
ditor of Public Accounts, Treasurer,
Superintendent of Public Instruction,
and Attorney General, who shall each

152

RESIDENCE OF STATE OFFICERS

Tuesday]

MAXWELL— WOOLWORTH— WAKELEY

[June 27

hold his office for the term of two
years, from the first day of January
next after his election, and until
his successor is elected and qualified;
but when that day shall fall on Sun
day, the term of office shall com
mence on the following day. They
shall, except the lieutenant Governor,
reside at the seat of government dur
ing their term of office, and keep the
public records, books and papers
there, and shall perform such duties
as may be prescribed by law.
Mr. MAXWELL. Mr. Chairman. I
mo've to strike out all after the word
"they" in the sixth line, to and in
cluding the word "office" in the sev
enth line. The words that I move to
strike out reads, "shall, except the
Lieutenant Governor, reside at the
seat of government during their term
of office." As to the books, public
records, and papers, they are to be
kept at the Capitol, but there is no
reason why the officers should be
residents of the Capital. If this is
done we will have to take men not so
well qualified as we might have if
they were not compelled to reside
here. I cannot find any reason for
such provision, and I find many of
the States having no such provision,
in their Constitutions. I think that
is asking too much.
Mr. HASCALL. Mr. Chairman, I
am in favor of the gentleman's mo
tion, for there are good men who
could be had as officers if they were
not compelled to remove to the Capi
tal. Mr. WOOLWORTH. So far as re
fers to the persons I am in favor of
the amendment, but so far as the
books and records are concerned, I
am not in favor of it. Suppose a man
who is elected Treasurer lives in

Omaha, if not prohibited he may
think it is better to take his books
there to perform his duties, and the
same thing might be said of the Au
ditor, or any other officer, and much
trouble ensue from such arrange
ment. The business of the State
should be done at the Capitol of the
State. Mr. MAXWELL. With the con
sent of the second I will amend my
motion so as to include only the resi
dence. Mr. LAKE. I would suggest Mr.
Chairman, that it might be amended
so as it would read "They shall keep
the public, etc., at the seat of govern
ment. Mr. WAKELEY. Mr. Chairman. I
had drawn an amendment about the
same in substance as the suggestion
of my colleague, (Mr. Lake) to strike
out all after the word "day" in the
sixth line and the whole of the 7th
line and insert "They shall respec
tively keep the public records, books
and papers, pertaining to their offi
ces at the seat of government."
Mr. ESTABROOK. I am sorry the
Chairman has entertained anything
of this matter. If this amendment
is adopted the man who is getting
as a Governor of the State a- large
salary for performing the duties of
his office, may at the same time work
in his store room or law office. I
shall oppose the amendment. When
there is a fugitive escaping from
justice and it is desired to get the
necessary papers, we do not want to
be delayed by the absence of a State
officer, but we want to find a man
here to perform his duties. Let me
suggest here in this Convention that

RESIDENCE OF STATE OFFICERS

153

Tuesday]

KIRKPATRICK— WEAVER

[June 27

if somebody will make the motion, I
will vote for it, that this Convention
negotiate for the beautiful chateau of
the Ex-Governor's for a gubernatorial
residence. It may be got on account
and at reasonable terms, on a dicker.
Mr. KIRKPATRICK. Mr. Chair
man, it strikes me that this motion is
not proper. Why sir, there is no
doubt that this Committee has consid
ered this matter and that they consid
er it proper that those words should
be in there. Now sir, what are these
men elected for? It is to perform the
duties of his office and here is the
proper place for that purpose. Why
sir, is it that county officers are re
quired to reside in the county seat, if
it is not' because they have certain
duties which must be performed
there, and are we not going to re
quire state officers to reside at the
capital of the State? Why sir, the
very idea of fixing a State Capital is
to have a place to find the State offi
cers and their records. It may not be
entirely proper, perhaps pertinent to
this discussion, but I will venture to
say the Committee in reporting and
making this report considered the
salaries to be given to these executive
officers, and took into consideration
the requirements of this section. The
whole thing was discussed there, the
officers would be required to live at
the seat of government, and in view
of these requirements they take their
salaries. We thought there was good
reason why they should be required
to hold their offices and reside there,
of course the books and papers should
be kept at the Capitol. Is an execu
tive officer holding his office at the

capita1, is he not required by the Con
stitution to live there, and staythere?
It strikes me sir, it would be highly
improper to adopt this amendment.
Mr. WEAVER. Mr. Chairman, I
fully concur with the gentleman
from Douglas (Mr. Estabrook) and
the gentleman from Cass (Mr. Kirk
patrick) that this amendment should
not prevail and I think for obvious
reasons. It is supposed generally
that the seat of government is a place
easy of access, it will be a fine thing
indeed if a man living back in rural
districts can be carrying on their
private business and receive $3,000
or $4,000 a year for performing the
duties of Governor. There are many
who wish to see the Governor and all
other executive officers, and there
should be a place where they can be
found, and where people can get eas
ily. I am very sorry the Chairman
of this Committee has consented to
this amendment. It would be a very
fine thing indeed for a lawyer in
Omaha to be carrying on his business
probably worth $5,000 to $10,000 a
year, and receive an extra revenue
in the capacity of Governor, seeking
this office from the fact that it would
add merely in a financial view. We
want men in these positions who will
give their exclusive and entire time
to the carrying out of these impor
tant offices. I hope the amendment
will not prevail.
Mr. PHILPOTT. Mr. Chairman,
In regard to that part of the section
proposed to amend. ,1 think it is very
plain and very easily to be under
stood: "They shall, except the Lieuten
ant Governor, reside at the seat of

154

RESIDENCE OF STATE OFFICERS

Tuesday]

PHILPOTT-THOMAS— LAKE

[June 27

government during their term of
office, and keep the public records,
books and papers there, and shall
perform such duties as may be pre
scribed by law."
Now what object there can be in
changing that or amending it, I do
not understand, I do not perceive,
unless it is to make the duties of the
several officers less onerous than
what is prescribed in this section.
To whose benefit would that inure
to the people, or to the officers? It
certainly must be to those who hold
the offices. I think it is not for us to
consider in what way and manner we
should so adopt this Constitution, or
frame a Constitution as may inure
to the benefit of those called upon to
discharge the duties of the several
offices which may be imposed upon
them, but rather we ought to con
sider in what manner we shall frame
the Constitution, so that duties to be
discharged by the officers shall in
ure to the benefit of the whole peo
ple. It does occur to my mind
that to have those officers reside at
the Capital, the seat of government,
and have all their books and papers
kept there will certainly be more to
the benefit of the people than other
wise. Such being my opinion of the
matter, I hope the amendment may
not prevail, and that the section
should be passed as it now stands.
Mr. THOMAS. Mr. Chairman, I
am opposed to the amendment of the
gentleman from Cass (Mr. Maxwell.)
The latter part of the section reads
"and shall perform such duties as
may be prescribed by law." I under
stand the gentleman does not propose
to strike out that which requires
.them to reside at the seat of govern
ment. How can this Convention

know what duties are prescribed by
law? These officers should reside at
the seat of government, the officers
mentioned in this section should cer
tainly reside at the seat of govern
ment. The offices of Governor and
other offices here are not only orna
mental, they are intended to perform
certain duties, they ought to give all
their duties to the State, we propose
to pay them a salary sufficient to
induce them to give their time to the
State. If that is the case sir, where
could they perform their duties bet
ter than to reside at the seat of gov
ernment, it is a place to which all
the citizens can go at any time and
find the officers there. For these rea
sons, I wish the article to remain as
it is. I would like to call the atten
tion of the gentleman that this arti
cle is adopted in the Constitution of
Illinois, that requires the officers to
reside at the Capital.
Mr. LAKE. Mr. Chairman, When
the gentleman from Cass (Mr. Max
well) first suggested his amendment
to this section I was rather favorably
impressed with it, but on reflection I
have come to the conclusion that the
amendment ought not to prevail. In
looking at this section as reported by
the Committee, I am inclined to
think that the best interests of the
State will be subserved by retaining
it as it came from the hands of the
Committee. The only reason that
can be urged to sustain the position
taken by the gentleman from Cass
(Mr. Maxwell) is this, that the du
ties may be performed just as well
by a deputy, and the absence of the
person holding the office will make
no material difference. It must be
borne in mind that is not the in-

RESIDENCE OF STATE OFFICERS

155

Tuesday]

LAKE— MAXWELL

[June 27

tention of this Constitution as it shall
go from our hands. I infer from re
marks made, that officers shall be
paid such salaries as shall warrant
them in leaving their business and
vocation and performing such ser
vices as may be required at their
hands. Who is it that the people
elects to perform the duties of an
office, is it the person whose name is
placed upon the ballot, and deposited
in the ballot box, or a deputy that he
may choose to employ? Doubtless
the best interests of the State re
quires that he who is elected to fill
any responsible office, who is paid
for his duties by the State, shall per
form them so far as he can in person,
of course permitting him to employ
deputies to assist him in the perform
ance of those duties, but that he shall
have a supervision, that he shall be
accessible at all times to the people
of the State, whose servant he is for
the time being, wherever they de
sire to transact business with the
Treasurer or Auditor or Superinten
dent of Public Instruction, that they
may find the person whom they elect
ed at his post of duty, with whom
they can transact such business per
sonally. I am inclined to think that
if he were not required to reside at
the seat of government, an officer
would find it very convenient to be
at home with his family and if he
reside at the seat of government he
would find it very convenient to be
here. I am therefore inclined to the
belief that we had better let this pro
vision stand as it came from the
hands of the Committee, and I trust
the Chairman of the Committee will
adhere to the section as reported by

him, and assist in sustaining it as we
find it.
Mr. MAXWELL. Mr. Chairman.
The amendment I proposed does not
prevent the officers from living at
Lincoln, or from discharging the du
ties of the offices there; that is still
to be the seat of government, it pro
poses to remove the fact that they
shall be required to remove to the
seat of government. A large major
ity of these parties would select to
move. Suppose you want to elect a
Treasurer, a man you can trust in
every respect, whose word you know
is as good as his bond. A man of
that kind may go where he resides,
you cannot begin to remove him to
the seat of government, it is no object
to him whatever, but, if you elect
him State Treasurer, he will see the
duties are discharged. Now our
State has had some experience with
such men as those; we had one man
Treasurer in Omaha several years,
and there is quite a number of oth
ers in the State of the same class,
men who can be relied upon. The
duties of the office of Auditor per
haps requires personal attention; it is
to his interests to remove to the Cap
ital, it might be so with any officer.
You say you propose to pay the Gov
ernor $3,000 a year; the Conven
tion has not agreed upon the amount
to pay him. I do not know that it
is necessary to pay any of these of
ficers more than their services are
absolutely worth; the salaries paid
in some States is not more than one
third, or half what we propose to pay.
The gentleman speaks about the case
where application is made for a fu
gitive from justice, the Governor of

156.

RESIDENCE OF STATE OFFICERS

Tuesday]

ESTABROOK— MAXWELL

[June 27

our State is frequently absent, and
requisitions are always sent. That is
well known to be the case, it is so in
every office I presume, I have known
of it being so in other places. I say
when you require these parties to re
move to the seat of government to
live there, you confine the officers to
a few men, or you exclude a certain
class who absolutely would not take
the office, so that that class is entire
ly excluded. A large majority of
that class who are excluded are the
men who, if elected officers, would
make the best officers. It seems to
me, there is no necessity of putting a
provision in the Constitution exclud
ing this class. All the State requires
and asks is that the duties of the
office be discharged faithfully.
Mr. ESTABROOK. I would have
nothing further to say on the merits
of this case, had it not been for the
suggestion of the gentleman from
Cass (Mr. Maxwell.) He indicates
that the Governor when he goes away
may sign some blanks and leave them
in the possession of his clerk or dep
uty; it makes the legal gentlemen of
this house laugh, the very mention
of it. Now, I would like to ask the
gentleman from Cass and he is a
good lawyer, whether he thinks that
a requisition having been filled up
for the signature of a Governor, has
any sort of effect whatever on a writ
of habeas. corpus; and whether it is
not in fact, a forgery of the instru
ment in the eyes of the law? I have
been made acquainted incidentally of
late, with the many things which
have been loosely done in the State
of Nebraska; and shall, as a mem
ber of this Convention, as far as

will have any effect, see to it that
things are done right and that re
cords shall not only be kept here, but
the man for whom I cast my vote
shall be with the records. I insist
that a writ of habeas corpus be not
issued on a forged instrument, but
that when the document is filled, the
Governor shall affix his signature and
not before. I do not intend that it
shall go out from this Convention,
through its reporters, that we assent
ed to the idea that a man can be tak
en away on a forged instrument. It
would be worse than blank paper;
it would intimate that a great mis
take had been committed.
Mr. MAXWELL. Mr. Chairman,
in answer to the gentleman I will
say that he well knows, I presume,
that in some cases requisitions are
filled up, leaving the application and
the name blank but signed, and they
are filled up for the purpose that in
case of the absence of the Governor,
that they may be filled out on a pro
per showing. When an instrument
of this kind is signed by the Gover
nor it comes in force. The Governor
is not here all the time. He may go
to Omaha, or Nebraska City and a
requisition may be made out in his
absence. I say if you are going to
to make it incumbent upon the Gov
ernor to remain here we shall also
require the Lieutenant Governor to
remain here; so that if the Governor
steps out of the office he must be
here. It provides that whenever he
is disqualified or during his absence,
the Lieutenant Governor shall then
be Governor. So that I think this
objection raised by the gentleman
falls to the ground. But that, Mr.

RESIDENCE OF STATE OFFICERS

157

Tuesday]

TO WLE— M A X WELL— NELIGH

[June 27

Chairman, is a very small matter,
one way or the other. I presume
there will not be more than one or
two requisitions needed in a year.
The only question is, is it necessary
to have a Governor reside here when
we never have a Legislature here for
more than forty days in one year,
while the other duties are merely
ministerial. It seems to me there is
no necessity for requiring the Gov
ernor to reside here, or the Auditor
or any officer. He may be a good
man, he may hold his office here,
but he may live elsewhere. It seems
to me, placing these limitations upon
it that you exclude that class of men
you desire to have elected to those
positions. Mr. TOWLE. Mr. Chairman, I
tob, am opposed to the amendment
as introduced by the gentleman from
Cass (Mr. Maxwell) and I am not in
favor of allowing the Chairman of
this Convention to be here and allow
this to prevail. It is customary to
have a Capital, which shall be as
near the center of the State as possi
ble. The object in that is, that
the citizens of the State having busi
ness to transact with the State off
icers, may have a quick and easy
egress to and from the Capital, and
when they have obtained access to
the Capital find the officers ready to
transact business. Frequently the
Governor has to decide the nicest
points of constitutional law. And
when we vote for a Governor we are
presumed to vote for a man of ability
and power, and equal to these points
which may be raised. It may be that
his deputy or clerk, who is compe
tent, and perhaps only so, to write a

good hand, is incapable of answering
all necessary questions. Suppose an
outbreak occurs, and a courier is
sent here, will he, if the Governor
does not reside here find that officer
at the seat of government, or Rich
ardson, county, 150 miles from here,
or in L' eau-qui-Court. It is no more
than reasonable and right that he
shall be found at the Capital of the
State. Suppose a murder is commit
ted, and it is necessary that the offi
cers of justice be set upon the track
of the murderer, it is not necessary
that if the Governor is not to be
found a requisition shall be issued.
We give the Governor a certain sal
ary, and we desire to make it not
only a lucrative office. We ask that
he and all the other officers should be
resident where the records are. If
we say these State officers shall not
reside at the Capital, we might just
as well say the judicial officers shall
shall not reside in their districts;
and when you take this position you
may as well say an elector shall not
be a resident.
The CHAIRMAN. Gentlemen, the
question is upon the amendment of
fered by the gentleman from Cass
(Mr. Maxwell.)
Mr. MAXWELL. I withdraw my
amendment. Mr. NELIGH. Mr. Chairman, I
propose to strike out the word "first"
before "day of January," and insert
"seventh." The object is that ac
cording to the section as it reads
here, it will be necessary for the Leg
islature to meet on that day and it
would be generally inconvenient for
members to spend their holidays and
be here at the same time. And I

158

BEGINNING OF POLITICAL YEAR

Tuesday]

ESTABROOK— WOOLWORTH— LAKE

[June 27

think it will be as convenient to have
it on the seventh day as on the first.
The CHAIRMAN. The question is
to strike out the word "first" and in
sert "seventh", are you ready for
the question?
Mr. ESTABROOK. I am not in
favor of that amendment, but I am in
favor of an amendment. I think
somewhere we shall have some day
upon which a political year will com
mence; and that should be a point
of departure in all these matters.
Officers commence their term at that
time. And I think it, according to
precedence in other states in the
Union, is the first Monday. I think
it should be the first Monday. If
this motion does not prevail, I will
move the the word "day" be stricken
outs, and the word "Monday" insert
ed. Mr. KIRKPATRICK. Gentlemen
will discover that that amendment
is provided for further along.
The CHAIRMAN. As many as are
in favor of striking out the word
"first" and inserting the word "sev
enth", will — ¦
Mr. WOOLWORTH. Mr. Chair
man, the suggestion made by my col
league was considered in committee
— that is that some day must be fixed
for the commencement of the civil
year. And it was thought, after not
very considerable reflection, but after
some discussion, that the first day of
the year would be best, so as to make
the civil year and the calendar year
agree, and it was thought that the
same might be true of the fiscal year;
So that it may provide, by provis-
sions, that the fiscal year would com
mence on the first day of the calendar

year, and it was for that reason and
that reason alone, that the first day
of the year was inserted. This is the
case in a number of the other States,
and struck the Committee as being
an exceedingly convenient arrange
ment. Mr. HASCALL. Mr. Chairman, I
have in my hand a copy of the New
York Constitution, lately adopted,
I find that section 21 reads as fol
lows: "The political year, and the Legis
lative year shall begin on the first
day of January."
That is all there is of it, they
seemed to think that that covers the
whole ground.
Mr. NEWSOM. Mr. Chairman, It
may be we shall have to consider that
matter again. It is useless to discuss
it now. Mr. THOMAS. Mr. Chairman, It
seems to me the Illinois Constitution
provides the Legislature shall meet
on the second Monday in January.
Mr. LAKE. Mr. Chairman, I see
no necessity for making any change
in this section. It provides, first,
that these officers shall hold, each,
for the term of two years from the
first day of January next after their
election, or until his successor is duly
elected and qualified. If the Legis
lature should not convene until six
weeks after the 1st day of January,
their term of office would commence
on that day,' and they hold for two
years from that day. It seems to
me it is good enough, just as it is.
The CHAIRMAN. The question
gentlemen is to strike out the word
"First," in the fourth line„ and insert
the word "seventh."

BEGINNING OF POLITICAL YEAR

159

Tuesday]

ROBINSON— THOMAS— WAKELEY-TOWLE

[June 27

The motion was not agreed to.
Mr. ROBINSON. Mr. Chairman, I
move to strike the fifth and sixth
lines down to the word "day."
The CHAIRMAN. Gentlemen, the
question is upon the motion to strike
out the 5th and 6th lines down to
the word "day."
The motion was not agreed to.
Mr. THOMAS. Mr. Chairman, I
move to strike out "the first day of
January next after his election," and
insert "the second Monday in Jan
uary next after his election." I will
add to that Mr. Chairman  ¦
The CHAIRMAN. The gentleman
will reduce his motion to writing.
Mr. Thomas reduces the motion to
writing. Mr. WAKELEY. While the
amendment of the gentleman is being
reduced to writing, I will say a word
expressive of my feelings with regard
to this amendment. It seems to me
the amendment of the gentleman
from Nemaha (Mr. Thomas) should
prevail, for conclusive reasons. If it
requires the action of the Legisla
ture to determine who has been elect
ed to one of these offices, it would
seem to be absurd to make his term
of office commence the assembling of
that body, and the vote had been can
vassed and the result officially an
nounced. I think that it is not cor
rect that his term of office should be
fixed at a date prior to the official
count of the votes which declares him
elected. I would say his term of
office should commence on the second
Monday in January after his ejection,
and he should . hold office for two
years thereafter.
Mr. LAKE. Suppose the vote

should not be counted before that
time? Mr. WAKELEY. Then the Leg
islature has not done its duty in that
regard; but it is presumed that pub
lic officers always do their duty.
Sometime must be fixed, and the
question is whether we will fix it
at a time earlier, or at the time fixed
for the meeting of the Legislature
which declares who have been elect
ed. Mr. WOOLWORTH. Mr. Chair
man, the section does not, in the first
place, attempt to define the time
when the Legislature shall convene.
In the second place my colleague (Mr.
Wakeley) says that the Legislature
is presumed to do its duty. Suppose
they met the first day of January.
It is presumed the first thing they
would do, would be to go and count
the votes, so that, if the Legislature
should meet in the afternoon, they
might know the next morning who
their officers are.
Mr. TOWLE. If the Legislature
convenes on the 7 th day of January
and the House of Representatives are
to count the votes for Governor, for
instance, it appears to me that his
term of office should not commence
until about a week after the meeting
of the Legislature, because at a time
of great political excitement for ex
ample a whole week might be occu
pied in forming an organization of
one or both parties of the Legisla
ture, and there can be no canvassing
of votes until an organization has
been effected by that body; and it
seems to me, too, that the incoming
Legislature should receive its annual
message from the outgoing Governor.

160

STATE TREASURER— ELIGIBILITY

Tuesday]

TOWLE-McCANN— GRIGGS— ABBOTT

[June 27

He would know more what to recom
mend to that Legislature for their
• official action, having a better knowl
edge of the business of the State.
Having the Governor's term of office
commence, say a week after the con
vening of the Legislature, would al
low that body time to canvass the
votes, receive a message from the out
going Governor and 
The CHAIRMAN. If the gentle
man will permit me, I will state that
the First section is still before the
Committee. It has not been adopted
by the Committee.
Mr. TOWLE. Do I understand the
Chairman to state that the subject
on which I was talking is not before
the house?
The CHAIRMAN. The Chair so
understands it.
Mr. TOWLE. Then I beg the par
don of the house-
The CHAIRMAN. The question is
upon the amendment by the gentle
man from Nemaha (Mr. Thomas.)
The Committee divided, and the
amendment was not agreed to.
The CHAIRMAN. The question
recurs on the adoption of the first
section. The first section was adopted.
The Secretary read the second sec
tion as follows:
tf 2. The Treasurer shall be in
eligible for office for two years next
after the end of the term for which
he was elected.
Mr. WOOLWORTH. Mr. Chair
man I move to strike out the word
"for" and insert the words "to said"
in first line.
Mr. McCANN. Mr. Chairman, I
would like to state that I believe it
a good plan if we have a Treasurer

who has performed his duty well,
that at the close of two years he
should give way for another who will
perform the duties equally as well,
we must look to the future and it is
good for the treasurer to be changed
every two years, and at the end of
the two years, the first treasurer who
has performed his duties well may be
again elected, and so two good men
during the whole history of the
State can alternately perform the
duties of this office.
Mr. GRIGGS. Mr. Chairman, I am
opposed to the section as it stands,
I do not see any reason why a person
who has performed the duties of that
office successfully may not again he
chosen by the people to the same
office. Only last week, I heard Gov
ernor Butler remark that he didn't
believe that a Governor ought to be
eligible to office for more than two
years, for if he was he would spend
the two years that he was in, in se
curing his election for the next term
of office. I am not in favor of giv
ing them this opportunity.
Mr. ABBOTT. Mr. Chairman. I
would suggest that the words to be in
serted should be "to the office of
Treasurer." Mr. STRICKLAND. Mr. Chair
man. It is only a matter of phrase
ology and I am in favor of striking
the whole thing out.
Mr. WOOLWORTH. I will accept
the suggestion of the gentleman from
Hall (Mr. Abbott.)
The CHAIRMAN. The question is
upon the motion of the gentleman
from Douglas (Mr. Woolworth,) to
amend by striking out the word "for"
and inserting the words "to the office

TIME OF GENERAL ELECTION

161

Tuesday]

HASCALL-S TRICKLAND

[June 27

of Treasurer."
The amendment was agreed to.
The CHAIRMAN. Gentlemen, the
question is now upon the adoption of
the second section as amended.
The second section was adopted.
The Secretary read the third sec
tion as follows:
tf 3. The officers of the executive
department shall be elected at the
general election for members of the
House of Representatives, to be held
in the year 1871, and every two years
thereafter, at such time and places
as may be prescribed by law.
Mr. HASCALL. Mr. Chairman, I
have an amendment which I wish to
offer. The CHAIRMAN. The gentleman
from Douglas, (Mr. Hascall) moves
to amend by striking out the word
"the" in the first line, before "gener
al election," and inserting the word
"a" in place of it. To strike out the
words "for members of the house of
representatives," in the second line,
and inserting in the same line after
the word "held", the words "on the
Tuesday succeeding the first Monday
of November."
Mr. STRICKLAND. Mr. Chair
man, unless the call for the Legisla
ture is different from what it is now
provided by law, I would favor the
further amendment of this section.
I will call the attention of the Con
vention to the fact that we had a
general election last fall, and under
this section we would have another
this fall and every two years thereaf
ter. The general elections ought to
come together as much as possible.
My idea is this, the Presidential elec
tion comes once in four years and we
ought to arrange our State elections
II

so as to come on the same years, and
at the same time as the presidential
elections, and then as we have an
election every two years the other
election will come every intervening
two years between the presidential
elections. It is a source of great ex
penditure that we have the presiden
tial election on one year and the
election of Governor on the next, and
this might easily be avoided by elect
ing the State officers this fall for only
one year, or for three years. I am
not prepared to say which would be
best. This would bring the State and
presidential election on the same
years. These elections ought to go
together, the election for President
is in November, it is a proper time;
the State elections are in October,
only a month apart. We suppose
people try to get out in the Presiden
tial elections so in Congressional
elections, so when state and county
officers are to. be elected; it is need
less to put these numerous expenses
upon the people while consuming
time. Now it is being generally said,
as we have no Governor but an act
ing Governor, that there will be an
election provided for to fill the unex
pired term, why not provide for an
election to fill that unexpired term,
fixing it on the same date as the Pres
idential election, so that after the
first election they may all go togeth
er. I think gentlemen will see iz. good
deal of sense in this proposition, by
the way of everything, dollars, cents
and the time of the elections. We
have had so many elections in Oma
ha, city and county officers, Congresr
sional, Gubernatorial and Presiden
tial, (Mr. WOOLWORTH "and a great

162

TIME OF GENERAL ELECTION

Tuesday]

KIRKP A TRICK— S TRICKL AND

[June 27

many prayer meetings") yes, and a
great many prayer meetings. We
have a constant fear of election all
the time. I throw out these sug
gestions in a blunt way so that the
gentlemen here will see the neces
sity of trying to throw these elections
together. Mr. KIRKPATRICK. The gentle
man's amendment I believe fixes the
time of elections which is not fixed
in this section. I have a little to say
¦on elections and shall give some prac
tical experimental reasons why I ob
ject to the time. I see no good reas
on why the suggestion of the gentle
man from Douglas (Mr. Strickland)
should be adopted; that we should
elect the President and the Vice-
President of the United States, mem
bers of Congress and members of
the Legislature all at one time, in
fact, sir, I think I can see a good
reason why they should not all be
elected at one time. It is well known
that when a President, or member of
Congress is to be elected, a strong
pressure is brought to bear upon the
voters. I do not see a reason why we
should elect all in one day, but I do
see a reason why we should not hold
our election on the second Tuesday
in November, that is to make it come
on the day of the Presidential elec
tion. Now, sir, it is in the experience
of other states that it is not best to
have those elections on the same day,
even in Pennsylvania and New York
they hold their elections shortly be
fore the Presidential election. I have
a primatic objection to that time. I
have seen it in Nebraska when scarce
ly any man could vote on that day.
We tried that when this territory was

first organized, I remember one elec
tion when nearly all South Platte
people were prevented from going to
an election by a storm. In the State
where I was brought up our elections
were held in August, a pleasant
month, then there was a full expres
sion and fuller vote; and there would
be here if we held our elections in
the sunny part of the year. I ob
ject to the time being fixed so late.
Mr. STRICKLAND. Mr. Chair
man, I have one other reason. As
the matter now stands here would
be two primary sets of elections all
over the country, with two sets of
State conventions, one year to nom
inate a delegate to Congress, and
State officers the next year, I think
they ought to be thrown together as
before. Here is a great expense as
gentlemen will see at once. Suppose
the Convention should see fit to adopt
this in the Constitution, to elect a
Governor and Lieutenant Governor
to fill the unexpired term and then
at the next general election proceed
to elect such officers as are provided
for in the Constitution under this
head, then it would come at a gen
eral election when there would be no
necessity of having but one conven
tion and one election.
Mr. LAKE. Mr. Chairman. I have
always been accustomed, ever since I
have had a vote, to attend elections
on the second Tuesday in October,
but I never could see any reason in
having two general elections in the
State so near together, as the second
Tuesday in October and first Tues
day after the first Monday in Novem
ber, when the Presidential election
occurs. It makes a useless expendi-

TIME OF GENERAL ELECTION

163

Tuesday]

LAKE— WOOLWORTH

[June 27

lure to tne State, a very great ex
pense, not only in the actual money
expended in conducting the elections,
but in calling out the entire voting
population of the State to attend the
election. I am in favor of changing
that hereafter. If this amendment is
adopted we shall have our general
election for State officers upon the
same day as that provided for the
Presidential election, so that in those
years when the President is to be
elected, our State election for State
officers shall fall upon that day, and
that two elections may be conducted
together. It will certainly be a great
saving of expenditure to the State,
and time to the people of the State.
Mr. WOOLWORTH. Mr. Chair
man, In order to accomplish the ob
ject of the gentlemen, it does not
seem to me necessary to make any
change in this particular part. I
apprehend it is the intention to elect
State officers and members, at any
rate of the lower House, on the same
day, and when you fix that day, you
fix the day for the election of officers
of the executive department. So far
as that matter is concerned, it does
not seem to me necessary to make
any amendment to this section, but
the President of the Convention has
made a suggestion, I do not know
whether he has brought it out so
that it is clearly apprehended by all
members of the Committee or not,
at any rate I beg leave to occupy the
attention of the Committee while I
state what it is as I apprehend it.
He is desirous of having the election
of State officers and also the mem
bers, at any rate of the lower
House occur on the same day,

ot course once in four years
when the Presidential election
occurs. The State officers would also
be elected on the intermediate two
years, but on the same day of the
year. Now the section as drawn pro
vides for an election this fall, and
then it provides for an election of
State officers two years from this
fall, that would be in 1873, so that
at no time would the election of State
officers come on the same year as the
election of President. What is de
sired by the President of the Conven
tion is that the election of President
and members of Congress, and the
election of State officers and mem
bers of the lower House of the Leg
islature shall come, not only upon the
same day but upon the same year.
Now, how is that to be accomplished?
It may be accomplished in one or two
ways; you may provide if you deter
mine to have a clean sweep of these
officers, for the election this year of
officers to hold their office for three
years, or you may provide that the
officers who shall be elected this year
shall hold their office but one year,
and then there shall be another elec
tion of State officers who shall hold
their offices two years more, either
of those ways would accomplish the
object; or you might provide that
there should he this fall a special
election of Governor and Lieutenant
Governor to fill the vacancy that has
arisen in the office of Governor, and
fill the office created by the Constitu
tion, and let the other officers of the
Executive Department hold over for
a period of one year. There is a
good deal that may be said in favor
of bringing the election, once in four

164

TIME OF GENERAL ELECTION

Tuesday]'

WAKELEY— STRICKLAND

[June 27

years, of President and State officers
together, a good deal that may be
6aid in favor of it, it is a matter that
Aid not occur to the Committee
Mien this matter was before them.
I have made this statement not with
any view of urging upon the Commit
tee any particular opinions upon this
subject, but merely to state to them,
that if any amendment be made in
the section, this seems to me to be
the proper one, to fix the day of the
year more definitely than it is now
fixed. You leave in this article a
day uncertain, or rather to be made
certain by a reference to the time
for the election of members of the
lower House of the Legislature, not
to modify the section in that partic
ular, but if any modification is to be
made to provide for the term of office
of officers to be elected this fall.
Mr. WAKELEY. Mr. Chairman, I
think my colleague (Mr. Woolworth)
is entirely right in reference to the
propriety of this section, as it now
stands, and I think, with him, that if
anything is to be done to remedy the
inconvenience spoken of by brother
delegates, of holding so many elec
tions, it must be done by changing
some other provisions of the Consti
tution. While we are speaking upon
this subject now, it is well to con
sider, generally, what will be neces
sary in order to put this Constitution
Into full and complete operation
when adopted. It seems to me es
sential that there should be an elec
tion this fall, not only of Governor
and Lieutenant Governor, but of
members of the Legislature. We will
all agree, I think, that this Constitu
tion will make such radical changes

in the frame work of our govern
ment, that a session of the Legisla
ture next winter will be indispens
able. Then, if it be desirable to pro
vide that our general elections and
our elections for Representatives
in Congress shall occur in the same
year, it must be done in the manner
suggested by my colleague, either
by providing that those first elected
shall hold for one year only, or that
they shall hold for three. I think,
at this time, I would be inclined to
favor the plan of electing the Gov
ernor and Lieutenant Governor, and
members of the Legislature for one
year, and the entire State ticket and
another Legislature in 1872, at the
time of the Presidential election;
and thereafter electing an entire
State ticket, members of the Legis
lature and. Representatives in Con
gress, in even years. So that our
State elections coming in the Presi
dential year, only one election will
be necessary. But, for the present, it
is sufficient I think, that we act upon
the section now before the Commit
tee, without special reference to what
we may see fit to provide with regard
to these matters we have been dis
cussing. It seems to me necessary
that there should be an election this
year for a portion of these officers, to
say the least, and for representatives
and members of the State Legisla
ture. Mr. STRICKLAND. As this re
solves itself into five or six subjects
I withdraw all I have offered.
Mr. HASCALL. Mr. Chairman, If
this section is adopted by the Com
mittee and reported back to the Con
vention, of course the question will

TIME OF GENERAL ELECTION

165

Tuesday]

H A S C ALL— PHILPOTT

[June 27

arise then upon the adoption of our
report by the Convention. This is its
best remedy — we have either to
adopt this and consider it when it
comes in regard to the one year term,
or fix it now. The amendment I in
troduced does not go to the extent
my colleague (General Strickland)
would. The only change is that we
will fix the time. We will say at the
general election to be held on the
Tuesday succeeding the first Monday
in September. The gentleman from
Cass (Mr. Kirkpatrick) has referred
to the severe weather he has seen
which has prevented electors from
going to the polls, and seems to think
that is a very serious objection. I do
not know of any such severe weather
in Nebraska. Further, we claim to
be a progressive people, and I be
lieve we are. Most of the States are
adopting one time for holding gener
al elections, and it has been a subject
of debate in Congress whether a law
shall not be passed requiring elec
tions for Congressmen to occur on
the same day throughout the United
States. And such a law will un
doubtedly be passed within a few
years. No one will question but what
Congress has the power to determine
that question. It is right and proper
that it should be so. And as a ma
jority of the States have adopted the
idea sought in my amendment, I
think we ought to select the same
time for ours. The reason it is
thought proper to insert this at this
time is, that we cannot anticipate
other articles intended to go into the
Constitution at this time. The wel
fare of the State demands that new
officers, precinct, county, district and

State, shall be appointed. And I am
satisfied, upon reflection and due con
sideration, that a majority of this
Convention will take the same view
of the subject. Then the question
arises, and we must determine it
now, because by adopting this sec
tion we commence the regular terms
which are to continue as long as this
Constitution shall last, because it
commences from this date, conse
quently if we wish to commence on
another basis, as suggested here,, that
we elect all these officers for one
year, and make the regular term
commence from a year next January,
we must determine it now. We can
not postpone its consideration. Th*
question would arise as to whether
we will elect all these officers for one
year, and make the regular term
commence in January next; or
whether we will elect for two years
at the fall election and have the
election of Governor fall on the off
year of the Presidential election. I
think it ought to fix the time in this
section, and those who hold the idea
that the Governor should be elected
at the same time as the President,
should insert the terms that will
meet their idea.
Mr. PHILPOTT. Mr. Chairman, I
rise to reply to the gentleman from
Douglas (Mr. Hascall) on one point
— that of this being the time to fix
this thing; that if the report of this
Committee is adopted, there will be
no time to change. I refer him to
rule No. 50, which reads "Provided,
however, that this rule shall not be
so constructed as to prevent a major
ity of the Convention from taking up
the report of said Committee, and

166

TIME OF GENERAL ELECTION

Tuesday]

HASCALL— SPRAGUE— ESTABROOK

[June 27

making any alterations or amend
ments thereto." Such being the case
I do not know that I am prepared to
take any particular part in determin
ing, at this time, at what time the
various officers should be elected. I
think it a matter well worthy of con
sideration, and I would rather it be
deferred for the present. I think I
shall be in favor of the amendment.
Mr. HASCALL. Mr. Chairman, I
wish to refute the idea just advanced.
The object of going into Committee
of the Whole is for the purpose of
perfecting the bill without incum
bering the journal with amendments.
It is true after the Committee arises
and reports back its action it is sub
ject to amendment. If you perfect
it now It is reported back; then all
you have to do is to adopt what the
Committee have reported back. The
object of a Committee of the Whole is
to make amendments. It is a com
mon saying that here is the place
where many look to "set themselves
on record."
Mr. SPRAGUE, It seems to me the
only important matter is the fixing of
the day. So far as these elections
are concerned if we are to adopt this
article reported by the Legislative
Committee there is to be an election
each year for representatives, and
it does not matter if we have an elec
tion in each year, or whether we are
to vote for Governor or Representa
tive in Congress, or President all at
the same time or not. It does not
increase the expense at all by making
members of the Legislature; and it
them come the same day, because we
are to have an election each year for
seems to me the only matter of im

portance is to fix a day upon which
a general election shall be had in
each year. I shall be in favor of
the amendment of the gentleman
from Douglass, (Mr. Hascall.)
Mr. ESTABROOK. Mr. Chairman,
I don't know but that I have forgot
ten the rules of parliamentary
usages; but my idea of the matter
is this; we pass over this Article,
section by section, and when we have
gone through it in this way, we then
act upon the whole Article. The
gentleman from Saunders (Mr.
Sprague) has suggested about what I
intended to say. It seems to me it is
not proper for us to fix the time, here,
when we shall hold our elections.
It would not be symmetrical for us
to fix the time of holding elections,
for the reason that another Article
fixes the time for the general election
in its proper place. It is not up now
for consideration. Now in regard to
the matter of electing our State of-
ficprs at the same time the President
of the United States is elected; I
don't think it is best. If we are only
to have a general election every two
years, I admit there would be some
thing saved in the way of expense by
this course, but as we are to have
an election every year, I don't see as
it makes much difference. I believe
it is more wholesome to have the
Gubernatorial election come in some
other year from that of the Presiden
tial election, because were it other
wise, you fit these matters to the
Presidential cut, and whip them all
into the traces. I believe, myself,
there is health in stirring up the po
litical elements, as the winds stir up
the other elements. Let the officer

TIME OF GENERAL ELECTION

167

Tuesday]

WILSON— STRICKLAND— McCANN

[June 27

of the people be answerable to them
at early, short and convenient peri
ods. I say, I think rather than do
this — joining the two elections— I
would separate the presidential
election from everything, so that our
own local elections shall run on their
own merits, and not be affected by
outside influences. I shall vote
against every amendment.
Mr. WILSON. Mr. Chairman, I
seems to me they have fixed this
thing already. It seems that the gen
tleman from Douglas (Mr. Esta
brook) says we must have an elec
tion every year. It seems to me it
is a very good thing for the State
to have an election of State officers
and county officers on the same day
as the Presidential election. The gen
tleman from Douglas (Mr. Esta
brook) seems to think there will be a
good deal of wire pulling if this was
the case, but I think you can get as
good officers on the day of the Pres
idential election, as on any other
day. Mr. STRICKLAND. Neither the
gentleman from Douglas (Mr. Esta
brook) or the gentleman from Saun
ders (Mr. Sprague) answers this ob
jection. When you come to elect
State officers you jar the whole State.
You can agitate too much. The
wisest man who ever governed has
said "you can govern too much." This
dabbling in the filthy pool of politics
is the cause of a great loss of time,
and a great expense to the people
and the fewer elections we have the
better for us. I think there is wise
reason in this plan to have our gen
eral election come on the same year,
and at the same time as the Presiden

tial election, and then only once in
two years will the people have to go
through with the bad feeling and ex
citement of a general election. The
election of county officers does not
affect the State at large. The noise
of the election of county officers does
not reach outside of the county lim
its. It is only at the election of State
officers, that the people are worked
up with political excitement. Do you
want this to come oftener than once
in two years? (Laughter.)
Mr. ESTABROOK. I do.
Mr. McCANN. Mr. Chairman, I
think it would be well for the people
to fix the time of these elections,
as they are considerably interested in
the matter. I have seen it snow and
freeze in this State on the day of
the Presidential election. There are,
a great many people who are in a bad
state of healthk and cannot go out
in bad weather; sometimes it happens
that that day is pleasant, but of
tener it is not. In some places they
have to ride often, ten or twelve
miles to get to the place of voting,
and now since the general (Strick
land) is going to have the ladies
vote — -
GEN. STRICKLAND (interrupt
ing) I am not going to have the
ladies vote.
Mr. McCANN. Since General
Strickland is going to have the ladies
vote, I think he ought to have a fine
day for them to go out and do their
voting. Mr. KIRKPATRICK. Mr. Chair
man, I think the Committee (Exec
utive) did not deem that they ought
to report a section in this executive
bill, giving the time of holding the

168

TIME OF GENERAL ELECTION

Tuesday]

KIRKPATRICK -ROBINSON— CAMPBELL

[June 27

general election. I think the section
ought to stand just as it is, and the
time for holding our general elections
had better be fixed in some other re
port. There are a good many States
which vote on the same day as the
Presidential election, but perhaps the
temperature has something to do with
it. I think it is better to provide
for the election of these officers at
the time of the election of county of
ficers. I see no reason why this
amendment should go into this sec
tion. Mr. ROBINSON. Mr. Chairman, I
call for the reading of the section
again. The Secretary read the section as
follows: tf 3. The officers of the executive
department shall be elected at the
general election for members of the
House of Representatives, to be. held
in the year 1871, and every two years
thereafter, at such time and places
as may be prescribed by law.
Mr. CAMPBELL. Mr. Chairman, I
have an amendment to the amend
ment. I have written . it out to be
attached as an amendment to the sec
tion as follows: "except the office of
Superintendent of Public Instruction,
who shall be elected on the first Mon
day in May."
Mr. MANDERSON. Mr. Chair
man, I understand that the amend
ment of the gentleman from Douglas
(Mr. Hascall) has the effect to fix
the election on the same years as
the Presidential elections.
Mr. HASCALL. I will say that it
does not, it fixes it on the same day of
the year, but if any gentleman de
sires it to come on the same years it
will have to be amended so as to

read 1872 instead of 1871 or else
make the term of office of the first
officers elected only one year.
Mr. STRICKLAND. Mr. Chair
man. I have that amendment in a
few words to be added to the sec
tion: "Provided the officers to be
elected at the first general election
shall hold their office for only one
year." Mr. CAMPBELL. Mr. Chairman, I
wish to explain my amendment I
offer it for the simple reason that I
want to take the election of school
officers out of the political world.
The CHAIRMAN. The question is
on the amendment offered by the gen
tleman from Douglas (Mr. Hascall.)
Mr. STRICKLAND. Mr. Chair
man, the gentleman from Otoe is
preparing an amendment to the
amendment, if the Chair will wait.
The CHAIRMAN. The Chair will
wait. Mr. STRICKLAND. I will with
draw my request in order to get an
expression from the Convention, first,
upon the amendment of the gentle
man from Douglas (Mr. Hascall.)
The CHAIRMAN. Gentlemen, the
question is on the amendment by
Mr. Hascall.
The amendment was not agreed to.
The CHAIRMAN. The question is
now on the amendment offered by the
gentleman from Otoe (Mr. Camp
bell.) Mr. McCANN. I hope the gentle
man will withdraw his amendment,
In order to allow the gentleman from
Otoe (Mr. Newsom) to offer his
amendment. Mr. CAMPBELL. I will withdraw
my amendment.

TIME OF GENERAL ELECTION

169

Tuesday]

NEWSOM— STEVENSON— WOOLWORTH

[June 27

Mr. NEWSOM. Mr. Chairman, I
desire to offer an amendment to
strike out"1871" inserting "1872"
and adding "provided that an elec
tion shall be held in 1871 for the
officers of the Executive Department,
at such time as this proposed Con
stitution shall be submitted to the
people, such officers to be elected for
the term of one year."
Mr. WAKELEY. I would suggest
that the words "or until their succes
sors shall be qualified," be added.
Mr. NEWSOM. I accept the sug
gestion. Mr. STEVENSON. Mr. Chairman,
now I really don't see anything that
is to be gained by changing this sec
tion. Now if they are elected for one
year the electiop will come off in
October and the next year it will be
in October and the Presidential elec
tion will be in November, and I hold
Mr. Chairman that it will make no
difference in the expense. I believe
we should elect these State officers
at a different time than that in which
we elect a President. Because then
political excitement rises pretty high
and we are likely to overlook the
State officers in our interest for the
United States officers. I think that
is a good reason why we should not
have them on the same day or the
same year. If they come on the same
year and time, these State officers
must be elected for four years, or
else we cannot economize much as
that appears to be the object of
some of the gentlemen. I am in fa
vor of having an election every year
and having this thing well ventilated,
or in other words I am in favor of
having a kind of political syringe and

filling it with salt and water and
squirting it all over this filthy thing
to purify it. (Laughter)
For this reason I will oppose this
amendment, for I think there is hard
ly any necessity that the election of
Governor should be on the same day
as the election of President. Is it be
cause there are certain parties who
have got ends to gain by this thing,
it may be so, but I hope they can do
it deliberately and without desiring
to obtain those ends, I think they are
trying to attain by this section.
Mr. WOOLWORTH. Mr. Chair
man, the views expressed by the
gentleman from Cuming (Mr. Steven
son) commend themselves to my
judgment. We all know that in a
Presidential election issues of a cer
tain character are presented for our
consideration, and that at a State elec
tion other questions are presented,
and we all know that these matters
of State policy are overlooked, and
that the character of the State offi
cers, and candidates for State offices
are not always what they would be
if the election was held at any other
time than that they elect at present.
Now, if the policy of the parties in
respect to State matters and Feder
al matters were precisely the same,
there would be every reason for
merging the elections, but upon these
matters of State policy what would
commend itself to a republican in
Nebraska might not at all commend
itself to a republican in Illinois, or
New York; and just so with regard
to the democrats. State policies are
limited to the State and each party
pursues its own policy in its own
State without reference to the views

170

TIME OF GENERAL ELECTION

TuesdayJ

LAKE

[June 27

entertained by its own partisans in
other States, so that a State election
might very properly be held on an
other year from that when the Presi
dential election is held. I do not con
ceive, that a modification, as seemed
to be suggested by the gentleman
from Cuming (Mr. Stevenson), I do
not precisely see how the matter one
way or another would affect the rel
ative strength of the parties, but I
can see how it is very easy for mat
ters of State policy to be quite for
got, quite overlooked, when the more
important, and more discussed ques
tions of Federal policy are before the
community. It does seem to me it
is better to let the Article stand as
it is, rather than make the change
that has been proposed.
Mr. LAKE. Mr. Chairman. While
I was in favor of fixing the time in
this section, when the election should
take place, and fixing it upon the
same day as is fixed by law for the
holding of the Presidential election,
to wit, the first Tuesday after the
first Monday in November, I am en
tirely unwilling that the section
should be so modified as to bring the
election of Governor and our other
State officers upon the same year that
the Presidential election takes place.
I prefer it should remain as it is;
that the first election should be this
coming fall, and should be for two
years, and that thereafter the elec
tion of these officers should take
place in an odd year, so that it may
never fall upon the year when the
President is to be elected. I think a
State election is entirely swallowed
up and lost, at it were, if it were to

take place upon the same day that
the President was to be elected
and while I am in favor, as I be
fore remarked of bringing the elec
tions together, when they would
naturally fall together by leav
ing the section as it is, that is the
election of the members of the Leg
islature, and perhaps to fill any va
cancy that might occur, the election
of such officers upon the same day
the President is elected. I am en
tirely unwilling that our principal
State officers should be elected upon
that day unless it should be to fill a
vacancy. It seems to me that the sec
tion as it stands is better than it will
be by any amendment that can be
attached to it, other than the one-
which was intended to obtain at this
time an indication from this body,
as to whether we should have two
elections each year or not, or in those
years when the President is to be
elected. The object was unquestion
ably to fix this time and take the
sense of the House upon this ques
tion of having the election for State
officers, in the year when the Presi
dent is to be elected, fall upon that
day, and in all other years to have it
indicated in the same manner. I pre
fer to have the section stand as it is
and to have a provision inserted in
the Constitution at some proper
place, fixing the time for the holding
of our elections and to have them so
that in no year can there be but one
general election in the State.
Mr. MAXWELL. Mr. Chairman,
It seems to me that the amendments
proposed as improvements to this sec
tion, cannot be regarded as such.

TIME OF GENERAL ELECTION

171

Tuesday]

MAXWELL-STRICKLAND

[June 27

Now, my friend General Strickland
complains, during the argument here,
of the excitement attending primary
elections and wished to have as few
elections as possible of that charac
ter, at the same time he comes in and
advocates an election for the short
term of one year for State officers. I
think he applied no reason except
that next year is Presidential elec
tion. It Is desirable that we elect
our best men for State officers, that
we should not be urged by party con
siderations; the first qualification
ought to be, he should be a good
man, we should all agree upon that.
It is sometimes urged you should
spare the money, that is right
enough, the first consideration is you
should nominate a good man. The
object of having an election during
the fall Presidential election might
be urged as a reason, it is necessary
to avoid the straight ticket in order
to carry the election. Now I am in
favor first of nominating good, num
ber one men, and then electing that
class of men. I do not think it well
to have an election in the year of the
Presidential election, it would be
much better to elect these men this
fall and then every two years so that
it entirely separates these elections
from the Presidential elections. Men
come upon their merits and are elect
ed on them, no consideration outside
is used, therefore I hope that that
amendment will not prevail.
Mr. STRICKLAND. Mr. Chair
man. There is one obstruction that
none of these gentlemen get over,
they speak about the election for
Governor and forget that, whatever
happens, there will be an election

for members of Congress next year,
they forget that. My idea is to sim
plify, that the Governor should be
elected for one year, then when we
have to assemble to elect a member
of Congress we also start in at that
period for State officers. The gentle
man from Cumings is entirely mis
taken, that is the rule we have work
ed under, we have always elected our
State officers when we elected a
member of Congress, they have all
come together; there has been
one State Convention that nomi-
inated the officers for the State and
Congressman. What I am trying to
do here is so to regulate the elections
that they shall be held as they have
been heretofore, not to change it,
As was first said by Mr. Woolworth
this change could be made, that the
executive officers be elected now for
three years, at which time we will
have to have a Congressional elec
tion. What is proposed by the Arti
cle is that you shall have a State
election every year, one year for
member of Congress, the next for
State officers. The amendment means
that you shall elect the executive of
ficers for one year and then come to
a time when you have to elect a mem
ber of Congress and re-elect all anew
from that period for two years. I
think I am understood by the gentle
men, it is simply a question whether
you will have a State election every
year or whether you will have a State
election, after we have provided for
the first one, every succeeding two
years. Mr. LAKE. Mr. Chairman, I un
derstood the gentleman before. I
believe it is generally conceded, at all

172

TIME OF GENERAL ELECTION

Tuesday]

LAKE— STRICKLAND

[June 27

events from what I have heard ex
pressed by members of this Conven
tion, that we must of necessity have
a general election throughout the
State every year. I believe it is gen
erally ceded, from the expression of
opinion here, that we are to elect
members of the Legislature every
year, at least those of the House of
Representatives, that will be a gen
eral election throughout the State.
I have also heard it suggested that
there was a probability, there would
be certain members of the Legisla
ture, of course I only speak from
rumor, that there shall be certain
members of the Legislature elected
by the State at large, they will be
members of the Legislature repre
senting the State at large if that plan
be adopted, at all events, Mr. Chair
man, it is conceded, and must be con
ceded, that we are to have a State
election once in each year. Now,
what is to be gained by the plan of
the gentleman; it is only to throw
the election of the important State
officers into that year when there
will be an influence brought to bear
upon the politics of the State which
ought to be avoided if possible, to
wit, national politics, that should be
avoided, the election, perhaps, of
Representative to Congress would not
be of that character, but in order to
avoid all that kind of influence in
order that our State election may not
be sunk utterly out of -sight, be lost
sight of, and swallowed up in the
more important one of President of
the United States. I propose, and
other gentlemen upon this floor pro
pose, that the election of those offi
cers shall never take place at the

same time as an election for Presi
dent of the United States, except
there be a necessity for filling a va
cancy, but that our Governor, Sec
retary of State, Auditor and Treas
urer shall be elected in an odd year
which will render it absolutely im
possible that their election shall fall
upon any year when the President is
elected; that is all proposed, it is
merely to separate these two elec
tions, the election of our principal
State officers from that of President
of the United States, and that is all
that we ask for.
Mr. STRICKLAND. The election
of Representative from Douglas coun
ty does not concern the . State, and
there is no Congressman running,
and no Governor. Next year there
will be. Then there will be a State
election and it embodies the two,
but there is only a State election once
in two years.
Mr. LAKE. It is true. I under
stand the gentleman. But we dif
fer in this — we are all agreed there
must be State elections and if there
are offices to be filled, where vacan
cies have occurred, they are to be
be filled at that election. Now, I
say it is- no more expense to elect
these officers at one election, where
there is one in each precinct through
out the State, inasmuch as we are to
have these elections uniform through
the State each year. We say, that is
those who agree with me, that the
election of our principal State officers
should not take place on the same
day as the Presidential election takes
place ; and we are in favor of the elec
tion of our State officers in a different
year. And that will accomplish just

CANVASS OF RETURNS

173

Tuesday]

ESTABROOK— MANDERSON— WOOLWORTH

[June 27

what I desire, and what others on
this floor desire, and as provided in
this section now — an election to be
held at the general election in 1871
and every two years thereafter. That
will bring it in the odd year, and
check having it fall in the year when
the President is to be elected.
Mr. NEWSOM. Mr. Chairman, I
withdraw my amendment.
The CHAIRMAN. Gentlemen, the
question is upon the adoption of sec
tion three.
Section three, as amended was
agreed to.
Mr. CAMPBELL. Mr. Chairman,
I move the Committee now rise,
report progress, and ask leave to sit
again. The CHAIRMAN. Is the Cpmmit-
tee ready for the question?
Mr. ESTABROOK. It seems to
me there will be no more time for the
sitting of Committees and I will
be in favor of running the Commit
tee a little longer.
The motion to rise was not agreed
to. The Secretary read section four, as
follows: tf 4. The returns of every election
for the above named officers shall be
sealed up and transmitted, by the re
turning officers, to the Secretary of
State, directed to "The Speaker of
the house of Representatives," who
shall, immediately after the organiza
tion of the House, and before pro
ceeding to other business, open and
publish the same in the presence of
a majority of each House of the gen
eral assembly, who shall, for that
purpose, assemble in the hall of the
House of Representatives. The per
son having the highest number of
votes for either of said offices shall
be declared duly elected; but if two

or more have an equal, and the high
est, number of votes, the general as
sembly shall, by joint ballot, choose
one of said persons for said office.
Contested elections for all of said
offices shall be determined by both
houses of the general assembly, by
joint ballot, in such manner, as may
be prescribed by law.
Mr. MANDERSON. Mr. President,
I move to strike out the words
"general assembly," and substitute
the word "legislature."
The CHAIRMAN. The alteration
will be made if there is no objection.
Mr. WOOLWORTH. Mr. Chair
man. I object to that change. I
think it is better to leave that until
we have adopted the Legislative Ar
ticle and we find out what, in
that Article, the Legislature is called.
After we have adopted it and know
what the Legislature is called, then
this and that may be made to agree.
That .is a matter for the Committee
on Revision and Adjustment.
The CHAIRMAN. The question is
on striking- out the words "general
assembly," and inserting "legisla
ture." Mr. ESTABROOK. Mr. Chairman,
Is it not the custom at christenings,
to have the baby present? We have
not the child here.
Mr. LAKE. We have one of them.
They are twins.
The question being upon Mr. Man-
derson's amendment to strike out
"general assembly" and insert "leg
islature," a division was ordered.
The Committee divided and the
amendment was agreed to.
The CHAIRMAN. The question
now recurs on the section as amend
ed. Is the Committee ready for the

174

RESIDENCE TO HOLD OFFICE

Tuesday]

A BBOTT— W AKELE Y-MANDERSON

[June 27

question? Mr. ABBOTT. Mr. Chairman, I
move to strike out the words "and
the highest," between the words
"equal" and "number."
Mr. WAKELEY. That is correct
as it is. It draws a distinction be
tween those as in the highest and
those in the lowest. The language
is similar to the language in the Con
stitution of the United States, in the
reference to the President and Vice
President. Mr. WOOLWORTH. If you strike
out the word "highest" you might
have one man having the highest
number of votes, and two others hav
ing an equal but lower number of
votes, and you would be obliged to
elect a Governor from the two, and
thus cut out the one having the high
est number.
Mr. ABBOTT. I withdraw the
amendment. Section four as amended was
agreed to.
The Secretary read section five as
follows: tf 5. No person shall be eligible to
the office of Governor or Lieutenant
Governor who shall not have attained
the age of twenty-five years, and been
for two years next preceding his
election, a citizen of the United
States and of this State. Neither the
Governor, Lieutenant Governor, Au
ditor of Public Accounts, Secretary of
State, Superintendent of Public In
struction nor Attorney General shall
be eligible to any other office during
the period for which he shall have
been elected.
Mr. WILSON. Mr. Chairman, I
move to strike out the word "two"
in the fourth line, and insert "five."
Mr. WOOLWORTH. I hope that

amendment will not prevail. The
provision five would be very proper
one in an old State which has been
pretty well settled but in this new
State, where so many people are con
stantly coming in, it might prove, a
great many times, very unjust; and
the wording of the provision might be
detrimental to the State. I hope the
provision will continue to be two,
and not be changed.
Mr. McCANN. I think the amend
ment of the gentleman from Johnson
(Mr. Wilson) is intended to apply to
citizenship in the United States; not
to this State.
Mr. WILSON. My object is that
he shall be five years a resident of
this State.
Mr. MANDERSON. I hope the
amendment will not prevail. The
section, as it now stands will require
the residence of two years and a half
in this case of the Governor and
Lieutenant Governor. He must re
side in this State long enough to ac
quire citizenship. Then he must live
two years a citizen of the State. I
think there is much point in the
argument of my colleague (Mr.
Woolworth), that while five years'
citizenship in the State might well
apply in older States than this; yet
here, where we are constantly receiv
ing an influx of men able enough to
occupy the office, we should not put
this in. I have been a resident of
this State less than two years, not
that by that I mean to say I expect
to be a candidate for the office of Gov
ernor, yet I would not like to be de
barred from seeking the position if
I so wished. Yet I believe when a
man becomes a citizen of the State of

RESIDENCE TO HOLD OFFICE

175

Tuesday]

WILSON— KIRKPATRICK- HASCALL

[June 27

Nebraska he should be entitled to tne
rights and privileges enjoyed by
every citizen of the State. I do not
believe that because he is an old set
tler he should have the greater privi
leges. I recognize the credit that at
taches, and that is due to those gen
tlemen who have lived in this State
for long periods. I put no such bar
rier as is proposed by this amend
ment, in the Constitution of the
State. I do not know if I would be out
of order if I relate a conversation I
had with an old resident of this
State. I was congratulating him on
the fact of his being an old resident
of Nebraska, having come here four
teen or fifteen years ago. Said he
"that is a small matter for congrat
ulation. For the last five or six years
there has been something to come to
this State for, some reason for
coming, but when a man came here
longer ago than that, there must
have been some reason for his leav
ing the place from which he came."
(Laughter.) Mr. WILSON. Mr. Chairman,
would not the man who comes right
here from my country be a fine sub
ject to act as Governor of the State
of Nebraska, as he could do, as soon
as he obtained citizenship, if this
idea should be adopted. Now I am
in favor of making this a still longer
time, and requiring a residence here
of five years instead of two years, in
order to make a man eligible to the
office of Governor.
Mr. KIRKPATRICK. I think a
residence of one year in the State
would be quite long enough. In our
territorial form of government, a

good many members of the Legisla
ture had been residing in the Stafo
about 40 days; I think at least one
half of the residents of this State has
come in within two years, and I see
no reason for excluding these from
the right to hold office. I would like
to reduce this term at least one year."
Mr. ESTABROOK. Mr. Chairman,
I hope this will be made as perfect as
the friends of it can make ft, because
when all is done, I propose to attack
the whole thing. I ask such amend
ments as shall provide that the
man who is worthy to cast a vote,
is worthy to hold office ("that's
right" "that's right.")
The CHAIRMAN. Gentlemen,
the question is upon the motion to
strike out the word "two" and insert
the word "five."
The motion was not agreed to.
Mr. ESTABROOK. Mr. Chair
man, I move to amend by inserting
"an elector 2 5 years of age shall be
eligible." Mr. HASCALL. Mr. Chairman,
I hope that will be adopted, for I am
decidedly in favor of it. This is a
new state, and we want people to
come here and if people do come they
are entitled to vote and if they are
wanted to hold office, they ought to
hold it. For my part, I am not so
greatly opposed to "carpet baggers."
They are always men of energy and
enterprise and they keep matters
stirred up. In fact, I believe "Car
pet baggers" are the salvation of the
country. Mr. NEWSOM. Mr. Chairman, I
am in favor of giving the right to
hold office to a man as soon as he
is capable of holding office; but I

176

ELIGIBILITY FOR ANOTHER OFFICE

Tuesday]

S TRICKL AND- WAKELEY— WOOLWORTH

[June 27

think the gentleman from Dougias
(Mr. Hascall) puts it on a little too
thick. (laughter) I am opposed to
the amendment of the gentleman.
Mr. STRICKLAND. This amend
ment provides that a two years resi
dence makes an elector?
Mr. ESTABROOK. Yes sir.
Mr. STRICKLAND. I do not
think that is long enough time to
qualify a man to hold one of our
State offices. I think a gentleman
ought to live in the State at least
two years in order to make himself
acquainted with the affairs and in
terests of the State. I know that in
some countries, in Spain for instance,
a person is often put at the head
of the government who knows noth
ing at all about the concerns and
affairs of that country; but this will
not do in a democratic government.
We want those who govern us to
)ivo among us and know what is to
our best interests. We hardly want,
I think, to elect a man to an office
in Douglas county, who lives in Otoe,
or Dodge county and who really
knows nothing about us and our
affairs. Mr. PHILPOTT. Mr. Chairman, I
desire the amendment read.
The Chairman reads the amend
ment. The CHAIRMAN. Gentlemen, the
question is upon the adoption of the
amendment just read.
The motion was not agreed to.
Mr. WAKELEY. Mr. Chairman, I
move to amend section 5 by striking
out all after the words "this State."
The sentence I propose to strike out,
leaves a gentleman in office ineligible
to hold any other office during his

term. I don't believe that the fact
of a man having been elected to one
of our highest offices should disquali
fy him from holding any other office;
if the people of the State see
fit to confer another office upon him.
I think should the people so confer it,
that the officer has a right to receive
it. I presume this provision originated
with the idea that a person holding
office might be intriguing for another
office, and using the powers and ad
vantages of his position to secure
some other and higher place. I don't
believe any mischief would arise
from rendering each Siate officer eli
gible to some other place. If they
should desire to hold other offices I
don't see why they should be ineligi
ble. Mr. WOOLWORTH. My colleague
states that the reason for the intro
duction of this provision, is for the
purpose of preventing the intrigues
in which an officer might indulge in
order to secure an election to some
other office. The time for which
these gentlemen hold the State offi
ces is not long, and it is only during
that period of time that they are in
eligible to any other office. It
strikes me that it is eminently proper
that when a gentleman has secured
his election to one of these six im
portant offices, he should be content
for the term of two years. If we
had but few men who want office,
why then the suggestion might be
very proper, and we might be driven
to select a gentleman who already fill
a State office, to fill some other im
portant position, but I apprehend
there is no lack of men who want of
fice, in this country, and we are not

ELIGIBILITY FOR OTHER OFFICE

177

Tuesday]

WAKELEY— WOOL WORTH-McCANN

[June 27

driven to select gentlemen who have
been elected to one of the six offices
named in the sentence referred to,
nor is the number of men who are
capable to hold office limited. I think
it is a good thing to deprive these per
sons whom we have elected to any
office of the opportunity of seeking
other public positions during the
term for which they have been elect
ed. The CHAIRMAN. The question is
on the amendment offered by the
gentleman from Douglas (Mr. Wake
ley.) The amendment was not agreed
to. Mr. WAKELEY. Mr. Chairman, I
offer the following amendment to in
sert after the word, "office" in the
fifth line these words "created by
the Constitution of this State."
I will state, Mr. Chairman, the
reason I have for the proposed
amendment. There is no question of
the authority to prescribe any condi
tion of eligibility to any of its offi
cers, but not of the officers of the
United States, for notwithstanding
the State Constitution rendering an
officer ineligible, it has been held
that such officer was eligible to Con
gress. I have no desire to have our
Constitution appear opposed to the
laws of the general government when
it will not effect anything, but I pre
fer that our Constitution recognize
this fact.
Mr. ROBINSON. Mr. Chairman, I
think with the gentleman that we
have thp same meanine now as we
would have if amended.
Mr. LAKE. I would like to ask
my colleague (Mr. Wakeley) wheth-
12

er he thinks that can refer to any
other than the officers created by this
Constitution? Mr. WAKELEY. I know that it
has been designed in other States to
refer to national officers.
Mr. WOOLWORTH. Mr. Chair
man, , the only occasion when this
identical subject came up to be con
sidered was when Mr. Trumbull of
Illinois presented himself at the bar
of Congress for admission. It was
then objected that he was ineligible,
because there was in the Constitution
of that State a section like this one.
The almost unanimous decision
was that the State Constitution did
not refer to any other officers than
those created by the Constitution,
and after that was so decided the
State of Illinois went on and enacted
another Constitution containing the
same language that is contained in
this section. I don't think that the
matter is open to any debate what
ever, . for I do not think that the
words would modify it in the least.
Mr. McCANN. Mr. Chairman,
The fifth section of the Constitution
of the United States, I think it is,
settles that matter where it makes
the members of Congress the judges
of the qualification of its own mem
bers. In this case I think it is not
necessary to-state this distinction, we
are simply providing for the officers
of the State of Nebraska and not for
the United States. I think it should
stand Just as it is.
The CHAIRMAN. The question is
on the amendment of the gentleman
from Douglas (Mr. Wakeley.)
Tlie amendment was not agreed to.
The CHAIRMAN. The question is

178

EXPENSE OF INSANE

Wednesday]

JOHN GILLESPIE, STATE AUDITOR

[June 28

Jiow on the fifth section as it stands.
The section was adopted.
3Mr. SPRAGUE. I move that the
Committee now arise, report pro
gress and ask leave to sit again.
The motion was agreed to.
Mr. MYERS. Mr. President, The
Committee of the Whole have had
under consideration the Article of the
Constitution ¦ entitled "Executive,"
and have instructed their Chairman
to report progress and ask leave to
sit again.
Mr. President, I move that leave be
granted to the Committee to sit again ]
on this Article to-morrow morning,
after the regular morning order.
The motion was agreed to.
Mr. GRENELL. Mr. President, I
move to adjourn.
The motion to adjourn was agreed
to.
So the Convention (at six o'clock)
•adjourned.

THIRTEENTH DAY.
Wednesday, June 28th, 1871
The Convention met at ten o'clock
and was called to order by the Presi
dent. Prayer.
Prayer was offered by thf Chaplain
as follows:
God of all grace, be merciful unto
us this day; give strength to -our
minds; give uprightness to our
hearts. May we be Thy people;
may we give Thee thanks forever;
may we show forth Thy praise to all
generations. Amen.
Reading of the Journal.
The Secretary read the Journal of
the preceding day which was ap
proved. Communications.
Communications were received
from the Auditor of State and read
by the Secretary as follows:

State of Nebraska, Auditor's Office,
HON. SILAS A. STRICKLAND, Lincoln, June 27th, 1871.
President Constitutional Convention.
Sir: In reply to request embraced in resolution from your honorable
body asking for a statement showing the expense of Insane up to this
date, I have the honor to submit the following, under the several heads of
expense, as shown from vouchers on file in this office.
Expenses previous to close of fiscal year Nov. 30th 1870 . $25,312.72
Expenses paid since, fees of Sheriffs' Probate Judges, Physici-
ans etc  S-°lHi
Expenses paid since, board and clothing  7,2 90. 07
Expenses paid since, repairs of building  2,068.56
Expenses paid since, farm implements, trees, team, cows etc., 1,420.90
Expense paid wages of employees  2'3rr'nn
Expenses paid for fuel  5,4 55.00
Expenses paid drays  135.70
Payment for outstanding indebtedness of the Insane Asylum,
act approved Feb. 10th, 1871  1* 317.97

Total

 $71,446.26
Respectfully submitted,
Your obedient servant.
JOHN GILLESPIE, State Auditor.

EXPENSES STATE GOVERNMENT

179

Wednesday]

JOHN GILLESPIE, STATE AUDITOR

[June 28

State of Nebraska,
Auditor's Office,
Lincoln, June 27,1871.
Hon. SILAS A. STRICKLAND.
President of Constitutional Con
vention. Sir:
In response to resolution from
your honorable body requesting an
itemized statement of expenses of
State Government, also expenses paid
to persons, etc., I have the honor here
with to transmit copy of General Ap
propriations Bill. "An Act making
appropriations for the current ex
penses of the years 1871 and 1872,"
approved March 24th, 1871; also
copy of "An Act making appropria
tions for the payment of the follow
ing persons " Approved March 28th,
1871. Respectfully, Your obedient servant,
JOHN GILLESPIE, State Auditor.
An Act.
Making appropriations for the pay
ment of the following persons:
Section 1. Be it enacted by the
Legislature of the State of Nebraska.
That the following sums of money,
or so much thereof as may be
necessary, be, and the same are here
by appropriated for the payment of
the following claims:
FOR DRAYAGE.
To Bohanan Bros., • for drayage for
Governor's office  $9.50
FOR ASSISTANT JANITOR
To Samuel S. Hall  $297.00
CELL FOR STATE CONVICTS.
To Douglas county for Building cell
for State Convicts  $185.51
ALVIN SAUNDERS.
For services from March 4 th, to
March 27th, inclusive, 1867$66.75
. NEWSPAPERS FOR LEGISLA
TURE.
To Nebraska State Journal, (Senate
»nd House)  $750.00

Omaha Tribune, 60 days 3
cents per copy  140.00
Omaha Herald  10^.00
Omaha Republican  168.00
Plattsmouth Herald  52.00
FOR FURNITURE FOR CAPITOL
BUILDING.
To Dewey Trimble & Co.,
for chains for Senate and
House  $240.00
Desks for Senate and
House  660.00
To Milton Rogers, stoves
for Capitol Building  802.10
To R. Hawk & Co., balance
due and interest from
January 1, 18G9,. ....... 402.50
To F. W. Hohman. Matting
for Senate and House. . . . 476.00
To J. E. Boyd & Bro., Chan
delier Supreme Court. . . . 80.00
repairs to Chandeliers etc. 92.55
To I. B. Compton, stoves, pipes,
sundries and interest. ... 241.20
FOR REPAIRS ON CAPITOL
BUILDING.
To S. Way & Co., for repairing
roof, etc. . . :  425.15
To N. A. Tyler, Inside doors,
flooring, etc  245.00
To S. Warfield, repairs on
chimneys  7.00
To W. N. Smith, repairs on
locks  9.50
To Leighton & Brown, Glass,. .97.20
To James P. Munson, repairs
on well and cleaning same 45.00
To Frank Keyes, for repairs"
on chimneys, etc  ^80.00
FURNITURE, PAINTING AND ETC.
FOR OFFICES.
To Dewey Trimble & Co., furniture
for Governor's room. .. $1,223.10
To James A. Bailey, paint
ing etc., Governor's office 250.00
To Dewey Trimble & Co.,
furniture for Adj't Genl's
office  323.75
To James A. Bailey, . paint
ing etc., Adj't Genl's
office  28.00

180

EXPENSES STATE GOVERNMENT

Wednesday ]

[June 28

To Dewey Trimble & Co.,
furniture Sec'y of State's
Office  105.00
To James A. Bailey, paint
ing Treasurer's and Sup't
Public Instruction Of
fice  53.47
To L. B. Wilkinson, paint
ing Sup't Public Instruc
tion Office  68.7 5
To D. J. Silver & Son, set
ting vault fronts Audi
tor's and Sec'y of State's
Offices  312.00
FOR INSANE ASYLUM,UNIVERSI-
TY AND CAPITOL.
To A. Meyer, coal for Capi
tol  $1,375.00
To A. Meyer & Co., coal for
Asylum in 1870  1,050.00
To A. D. Marshall, coal for
Capitol  218.55
To Harry Byrne, plumbing
and repairs Insane Asy
lum  68.05
To J. F. Adams, repairs In
sane Asylum  10.00
FOR TRAVELING EXPENSES, ETC.
To S. D. Beals, traveling ex
penses  350.00
To H. H. Brown, removing
archives, Omaha to Lin
coln  87.50
To James N. Tait, drayage
etc.,  7.50
To John C. Creed, arrest of
Samuel Pool  100.00
To S. C. Abbot & Co., sta
tionery Sup't Public In
struction Beals  116.65
FOR PRINTING LAWS AND
JOURNALS.
To St. A. D. Balcombe,
for printing Journals. . .$1,118.55
For printing Register
Books  600.00
For tax receipts, blanks
etc  1,372.90
For printing for Superin
tendent Public Instruc
tion  656.00

For printing for Penitenti
ary  57.00
To Hentzel& Renner,' print
ing and translating Gov
ernor's Message  100.00
Leighton & Brown, paints,
oils, wall paper, etc  47.80
S. C. Elliott & Co., lamp.. . 10.00
STATIONERY AND BOOKS FOR
EXECUTIVE DEPARTMENT.
Mills & Co., books, station
ery, etc.,  374.30
J. W. Middleton & Co.,
books, stationery etc., . . 280.05
To Leighton & Brown, sta
tionery executive depart
ment  112.00
Paints, executive dept.,. 60.52
Incidentals, exec, dept., ST'.SS
Paints, oils etc., exec,
dept  24.95
Coal oil, etc., exec, dept., 9.10
Incidentals, exec, dept., 63.35
To L. E. Cropsey, 5 4 days
work in exec, dept.,. . . . 162.00
To R. P. Beecher, 238 days
work in exec, dept.,,. . . . 714.00
CLERK HIRE ADJUTANT GENER
AL'S DEPARTMENT.
J. D. Parker, 8 months ser
vice as clerk at $75  600.00
T. F. Hardenburgh, 5 days
service  15.00
J. J. Roggen, 5 days service 15.00
E. P. Roggen, 5 days work 14.99
G. W. Whitehead, 2 days
work  6.00
Bohannan Bros., transport
ing cannon, small arms,
and ammunition, — Oma
ha to Lincoln,  75.00
L. B. Freneh, expenses on
trip after Insane  30.00
Andrew Keene, repairing
chair  5.00
M. Langdon, 2 cords of
wood for library  19.00
John Robison, attending
out-house 60 days  180.00
Expense of Railroad Com
mittee  710.60

EXPENSES STATE GOVERNMENT

181

Wednesday]

[June 28

Expense of Joint Investigat
ing Committee  790.55
Vault Safe, doors etc., for
State Treasurer's dept., 6,000.00
W. H. H. Waters, Daily
Chronicle 40 days  47.25
Samuel Wilcox, Lightning
rods and points for In- r
sane- Asylum  417.50
For assistant clerk hire,
Committee on Engrossed
and Enrolled Bills  250.00
For Land Office fees enter
ing agricultural lands. . 2,500.00
Wilson & Sterne, balance
due. .  8.69
Arnson & Co., furniture
etc.,  259.00
Pearman & Co., trees etc., 1,000.00
E. Fuller for guarding state
prisoners at Fremont,
Neb., from April 1-st., 69
to December 1st., 69 244
days and nights  732.00
For the payment of the officers and
employees of the House of Represen
tatives for extra services.
F. M. McDonagh, Chief elk.,
40 days services  160.00
L. E. Cropsey, assist., elk.,
40 days services  160.00
J. R. Webster, 2nd asst,
clerk 40 days services. . 160.00
C. Culbertson, Sergt., at
Arms 40 days services. . 120.00
D. S. Snyder, Engrossing
clerk 40 days services. . 120.00
Cornelia Frost, Enrolling
clerk 40 days services. . 120.00
S. J. Alexander, Asst., Sar-
geant at Arms 40 days
service  120.00
E. L. Clark, Door keeper,
40 days services  120.00
E. Goodsell, Fireman 40
days service  120.00
Rev. Fifield, Chaplain, 40
days services  120.00
F. M. Donavan, Page, 40
days services  60.00
H. Baird, Page 40 days ser
vices  60.00
G. W. Collins, Speaker, days
services  12 0.00

For the payment of the officers and
employees of the Senate.
C. H. Walker, Secretary of
of the Senate 40 days ser
vices  160.00
C. M. Blaker, Asst., Sec
retary of the Senate 40
days services  160.00
A. M. Blaker, Enrolling
Clerk 10 days services. 30.00
Extra services sundry per
sons Enrolling  10.00
C. E. Hine, Doorkeeper 40
days services  120.00
Andrew Keene, Fireman, 40
days services  120.00
S. M. Kline, Sargeant at
Arms 40 days services. . 120.00
J. D. Parker, Asst., Sarg-
geant at Arms 40 days
services  120.00
Rev. Goodale, Chaplain 40
days services  120.00
J. F. Hodges, Page, 40 days
services  120.00
E. E. Cunningham, Presi
dent Senate 40 days ser
vices  120.00
Secretary of the Senate; for
copying Journal of the
Senate and Impeachment
Trial  200.00
Asst., Secretary of the Sen
ate for copying Journal
of House and Impeach
ment Trial  200.00
For copying Journal of
the house  200.00
Provided that the above persons
shall receive pay only for the ser
vices actually rendered upon a certifi
cate signed by the President of the
Senate and Speaker of the House.
Section 2. The State Auditor is
hereby authorized upon evidence be
ing presented that the parties for
whom appropriations are made by
this Act, performed the labor con
templated for the sums appropriated
have been justly expended, shall
draw his warrant upon the Treasurer
for the amount which warrant shall
give the name of the person and the

182

PRINTING REPORTS

Wednesday]

WOOLWORTH— McCANN— CAMPBELL

[June 28

service and material furnished for
which the warrant was given.
Sec. 3. This Act shall take effect
and be in force from and after its
passage. G. W. COLLINS.
Speaker of the House of Representa
tives. E. E. CUNNINGHAM,
President of the Senate.
Approved March 28th, A. D. 1871.
WILLIAM H. JAMES,
Acting Governor.
I hereby certify that this Bill or
iginated in and passed the House of
R epresentatives. L. E. CROPSEY, Asst., Clerk.
Mr. WOOLWORTH. Mr. President,
I would suggest that they be printed,
then we can look them over more
carefully. Mr. McCANN. Mr. President, I
think our cost of printing is running
up very rapidly indeed, and I
would suggest to the Convention that
the appropriation bills are before
the Convention now; they are sub
mitted by the Auditor; and as they
can be seen and examined now and
at any time in the office of the Secre
tary of State or Auditor, I object to
the printing of 1000 copies of the
bill. We are running up bills for
printing that will astonish this Con
vention when they see them; and we
will want an appropriation of another
$15,000 to cover this one item alone.
I carefully examined those bills yes
terday. They are now upon the Sec
retary's desk; every member can see
them; and I hope we will not incur
the printing of these copies. I would
add that the State printing is now
being done, and the laws will soon
be before us, and we can examine
them at any moment.

Mr. WOOLWORTH. Will the gen
tleman allow me to Inquire what the
object is in calling for the copies of
these two acts?
The PRESIDENT. The resolution
called for a detailed statement of the
expenditure, and he gave the Act of
the Legislature, appropriating differ
ent amounts.
Mr. WOOLWORTH. Then Mr.
President, I move that the communi
cation be referred to the Committee
on Revenue and Finance, that they
may examine them and state, in a
brief story, the contents of these two
bills, and tell us better than by a per
sonal examination by us, of the bill
at length.
The PRESIDENT. The question
is upon the motion to commit.
Motion agreed to.
Correction of the Journal.
Mr. CAMPBELL. Mr. President, I
move that the Journal be so cor
rected as to show that the bill which
the Committee of the Whole had un
der consideration yesterday was read
a first and second time, and then
referred. Mr. ESTABROOK. Do I under
stand that that fact wants to be
shown? The correction suggested was or
dered made. Extension of Privilege.
Mr. HASCALL. If there is no ob
jection I want to make a motion.
Leave granted.
Mr. HASCALL. I move that the
rules be suspended and the privilege
of the floor be granted to Col. P. T.
Abell, of Atchison, Kansas.
Mr. CAMPBELL. I would also in-

PRINTING REPORTS

183

Wednesday]

ESTABROOK— McCANN-STEW ART

[June 28

elude with him Mr. A. Byram, of the
same place.
Mr. STEWART. And I would in
clude Major J. Loree, of Richardson
County, Nebraska.
Motion agreed to .
' Reports of Committees.
Mr. ESTABROOK. Mr. President,
the Committee on Education, School
Funds and Lands, held a session this
morning and instructed me to report,
although the report is somewhat mar
red with interlineations and the like.
I will state, moreover, it would have
preferred to submit a somewhat more
elaborate report, as to the amount
of school funds, and other matters of
interest connected with the educa
tional department of our State.
That we defer until another time.
I simply present this, and ask that
the rules be suspended, that it be
read a first time, and second time by
its title and printed; and referred to
the Committee of the Whole.
Mr. McCANN. Mr. President, I
understand there is spme misappre
hension in reference to the tabular
statement which was ordered printed,
and as this contains a history of the
expenses since the organization of
the state, it is suggested that a larger
number be printed while the form is
up. I move that 300 additional
copies be printed.
Motion agreed to.
The Secretary commenced to
read the report of the Committee on
Education, School Funds and Lands,
when he was interrupted.
Mr. ROBINSON. Mr. President,
This is out of order. I move to sus
pend the rules and that the bill be

read a first and second time by its
title as we do not hear or under
stand it as read by the clerk.
Motion agreed to, and rules sus
pended. The bill was read first and second
time by its title.
The PRESIDENT. The question
now is that it be printed and referred
to the Committee of the Whole.
Motion agreed to.
Mr. CASSELL. Mr. President, I
have a report from the Committee on
State Institutions and Public Build
ings. Mr. STEWART. I move that the
rules be suspended and the article
read a first and second time by its
title and printed.
Mr. KIRKPATRICK. Mr. Presi
dent. I object.
Mr. PARKER. Mr. President, I
desire to hear it read a first time.
Mr. STEWART. I withdraw my
motion to suspend the rules.
The PRESIDENT. First reading
of the article.
Mr. STEWART. Mr. President, I
move that the rules be suspended:
the article read a second time by its
title and 100 copies ordered printed,
and then be referred to the Commit
tee of the Whole.
Mr. HASCALL. Mr. President,
the motion to refer to Committee of
the Whole, is out of order. We have
a rule which carries it to the Com
mittee of the Whole without a mo
tion. The PRESIDENT. The gentleman
from Douglas (Mr. Hascall) is right.
The question, gentlemen, is upon the
printing of 100 copies of the report.
Motion agreed to.

184

FUTURE AMENDMENTS

Wednesday]

BALLARD— MYERS

[June 28

Mr. ESTABROOK. Mr. Chairman,
It is suggested to me that it should
be 200 copies, as the additional 100
copies will cost simply the price of
the paper and the work of printing,
which will take perhaps an hour. I
move that 200 copies of all Articles
be printed in the bill form.
The PRESIDENT. Gentlemen, the
question is upon the motion as just
stated by the gentleman from Doug
las (Mr. Estabrook).
Motion agreed to.
Reports of Committees.
Mr. BALLARD. Mr. President, I
submit the report of the Committee
on Future Amendments.
The Secretary reads the report as
follows :
Report of the Committee on
Amendments. M. BALLARD, Chairman.
Mr President:
Your Committee on Future Amend
ments beg leave to present the follow
ing, and would respectfully recom
mend that the same be adopted by
the Convention:
Any amendment or amendments to
this Constitution may be proposed in
the Senate or House of Representa
tives, and if the same shall be agreed
to by a majority of the members
elected to each house, such proposed
amendment or amendments shall be
ehte'red upon the Journals, with the
yeas and nays taken thereon, and the
Secretary of State shall cause the
same to be published three months
before the next election in at least
one newspaper in every county in
which a newspaper shall be published,
and if in the Legislature next after
wards chosen such proposed amend
ment or amendments shall be agreed
to by a majority of the members
elected to each house, the Secretary

of State shall cause the same again
to be published in manner aforesaid,
and such proposed amendment or
amendments shall be submitted to
the people in such manner and at
such time, (at least three months
after being so agreed to by the two
houses), as the Legislature shall pre
scribe; and if the people shall ap
prove and ratify such amendment or
amendments by a majority of the
qualified voters of this State voting
thereon, such amendment or amend
ments shall become a part of the Con
stitution; but no amendment or
amendments shall be submitted to
the people oftener than once in five
years; provided, that if more than
one amendment be submitted they
shall be submitted in such manner
and form that the people may vote
for or against each amendment separ
ately and distinctly.
Sec. 2. Upon the expiration of
twenty-five years from the adoption
of this Constitution, or any year
thereafter, the Legislature may pro
vide by law for the submission of
the question: "Shall there be a Con
vention to revise or amend the Con
stitution?" and should a majority
of the legally qualified electors vot
ing thereon decide in favor of calling
a convention for such purpose, then
the Legislature at its next meeting
shall provide by law for the election,
qualification and pay of the delegates
to such Convention.
We, the undersigned would re
spectfully represent that we cannot
concur with the majority of the Com
mittee as to the second section herein
reported, for the reason that we be
lieve that the first section contains all
that is necessary on the subject of
future amendments. M. BALLARD,
JOHN C. MYERS.
The PRESIDENT. First reading
of the Article.
Mr. HINMAN. Mr. President, I
ask that the second section be read
again.

REGISTRATION— SCHOOL FUNDS

185

Wednesday]

PHILPOTT— TOWLE— WEAVER

[June 28

The Secretary read the Second
Section, again.
The Article is read the second time
by title.
The PRESIDENT. Gentlemen: The
question is upon the printing of 100
copies of the report.
Motion agreed to.
Mr. PHILPOTT. Mr. President, I
would like to know whether there is
any provision for printing the report
of the Committee on Public Institu
tions and Buildings.
The PRESIDENT. 100 copies were
ordered printed. Resolutions.
Mr. PHILPOTT. Mr. President, I
wish to offer a resolution.
The Secretary read the resolution,
as follows:
RESOLVED. That the Hon. Sec
retary of State be requested to report
to this Convention the cost of the
printing done for the same up to the
present day.
Mr. PHILPOTT. I think it is emi
nently proper, Mr. President, that
this information be given us.
Mr. REYNOLDS. Mr. President,
I am informed that the information
sought is not in the possession of the
Secretary of State, but of the State
Auditor. Mr. PHILPOTT. Then, Mr. Presi
dent, I amend my resolution by in
serting "State Auditor" instead of
"Sec. of State."
The resolution as amended was
adopted. Mr. TOWLE. Mr. President, I
offer a resolution.
The Secretary read the resolution,
as follows:
RESOLVED. That the Committee
on Rights of Suffrage be requested

to inquire into and report upon the
expediency of incorporating limita
tions on the following points, relative
to the registry of voters, in the new
Constitution: 1st. Whether the best interests
of the State require a registration
of voters.
2nd. Whether it would not be
best to require registration- only in
cities of the 1st class.
3d. Whether the best interests of
the State, and those entitled to exer
cise the right of suffrage do not im
peratively demand that in case a
registry law should be passed, or con
tinued in force, that the Registrar of
each .Precinct should be compelled
to place upon the registry list every
legal voter of his precinct, even
though no application shall be made
for registration,' by persons so en
titled. 4th. Whether the said Registrar
should not be elected by the legal
voters of each precinct.
Mr. TOWLE. I move that the res
olution be referred to the Committee
on Rights of Suffrage. '
The motion was agreed to.
Mr. WEAVER. Mr. President, 1
have a resolution.
The Secretary read the resolution,
as follows:
WHEREAS: In several States
there have been repeated attacks
made against the public school sys
tem by attempting to divert school
money to the use of different relig
ious sects; therefore be it,
RESOLVED: That there should
be engrafted into our Constitution
a clause prohibiting, forever, a divi
sion of school funds among different
denominations. Mr. WEAVER. Mr. President, I
ask that the resolution be referred
to Committee No. 6, on Education,
School Funds and Lands.
So referred NEM. CON.
Mr. HASCALL. Mr. President, I

186

PUBLIC LANDS— PRINTING

Wednesday]

BOYD -PHILPOTT-TOWLE

[June 28

hope we shall be able to pass this
order soon, so that we may get into
Committee of the Whole on the Ex
ecutive Article.
The PRESIDENT. I will inform
the gentleman from Douglas (Mr.
Hascall,) that there is no. order to
pass to from this order.
Mr. BOYD. Mr. President, I have
a resolution I wish to offer.
The Secretary read the resolution
as follows:
RESOLVED: That the Acting
Governor of this State be and is here
by requested to report at once the in
formation asked for in the resolution
of Mr. Scofield, adopted by this Con
vention on the 21st inst, relative to
the public lands and other school
lands. Mr. BOYD. I move the adoption
of the resolution.
The motion was agreed to.
Mr. HASCALL. Mr. President, I
move that we now take up the special
order of the day, and go into Com
mittee of the Whole on the Executive
Article. Mr. PHILPOTT. Mr. President, if
the gentleman will just wait a mo
ment, I have a resolution I wish to
offer. Mr. HASCALL. I will waive my
motion to give the gentleman an op
portunity to offer his resolution.
The Secretary read the resolution,
as follows:
RESOLVED: That the Secretary
of State report to this Convention any
information that he may have of the
cost of printing, for the same, to the
present date.
Mr. PHILPOTT. Mr. President, I
move the passage of the resolution.
I wish to make a remark Mr. Presi
dent. The resolution which has been

adopted is addressed to the Auditor,
and I have thought since the adop
tion of that resolution that the Audi
tor may not have any bills yet sent in
to him, and I desire to find out by
somebody what this cost is, for I
think we ought to know, as a Con
vention, if we are to control this mat
ter. Mr. KIRKPATRICK. Mr. Presi
dent, the expense of printing is not
yet ascertained, and I think it cannot
be at this time. The gentleman will
see that we are having printing done-
every day and hour continually. We
have had one order adopted this
morning to the Auditor of State
about this matter and I should think
that was enough.
, Mr. PARKER. Mr. President, this
looks to me like a very simple thing
to get at. The Secretary of State
may request the persons doing the
printing to make out an account up
to the present time, and report the
amount to the Convention. The oth
er resolution to the Auditor does not
reach this.
Mr. KIRKPATRICK. Mr. Presi
dent, there is another thought. We
have a Comittee on printing that this
report should come through.
Mr. TOWLE. Mr. President, ever.
since the first hour after the meeting
of this Convention, we have had res
olution after resolution on printing,
all coming from one source, from one
delegation, and for one object. This
matter has been discussed in the
Convention and in Committee, and I
had hoped that a quietus had been
placed upon it forever. Now we have
as was suggested by the gentleman
from Cass (Mr. Kirkpatrick) a Com-

COST OF PRINTING

187

Wednesday]

HASCALL— PHILPOTT— TOWLE

[June 28

mittee on printing, and it is within
the particular province and duty of
that Committee to control this mat
ter, and I have confidence in their
ability to do so; and if we wish to
ascertain this cost we" can require
that Committee to make up a report.
Now then Mr. President in order that
we may be troubled no more, I will
move that the two resolutions be
referred to the Committee on Print
ing. The PRESIDENT. The first reso
lution has been adopted, so the mo
tion to refer can only apply to the
last resolution.
Mr. HASCALL. Mr. President.
Inasmuch as this is the day for the
bids on printing to be received, I
think it is proper that we should have
the information asked for by this
resolution before the Convention.
Mr. PHILPOTT. Mr. President, I
think these two resolutions are pro
per. They have not come from
any particular delegation, but they
have come from a particular individ
ual. I assume the whole responsibil
ity myself for I have not consulted
with any of the gentlemen from Lan
caster about this matter, and as
much as it has been decided that
this Convention has the whole con
trol of this printing matter T think
it is eminently proper that this Con
vention should be informed as to the
cost. I believe that I have not feared
at any time to bring this matter be
fore this Convention, and I claim the
right of this Convention to ask from
officers of the State any information
that will give light on this matter.
I think that the gentleman from
Richardson (Mr. Towle) did me an

injustice in his remarks. I wish to
say it is for a particular object that I
introduced this resolution, and that
object is to take care of the money.
I think this resolution should prevail.
If necessary, let it go to the Com
mittee on Printing, but if that Com
mittee fails to furnish the needed in
formation, let the Convention order
it. Mr. ROBINSON. Mr. President,
this resolution calls for information
from the Secretary of State, and I
do not think it is proper for it to
go to the Committee on Printing and
lie there. It does not refer to the
future printing, but only to the print
ing that has already been done.
Mr. TOWLE. Mr. President, as I
understand it, we have certain Com
mittees for each special purpose. If
I remember right a few days ago
a resolution was adopted directing
the Committee on Printing to adver
tise for five days for bids on printing
for the Convention, and I think this
whole thing is in the hands of tkat
Committee; and when that Commit
tee asks or demands a statement as
to .certain figures, then I shall be in
favor of the resolution of the gentle
man from Lancaster (Mr. Philpott).
Why not ask that Committee to re
port to this Convention the expenses
of printing for this Convention up to
the present time, if that information
is needed?
Mr. GRAY. Mr. President, As I in
timated to the Convention this morn
ing the expenses of the printing of
this Convention are becoming ,very
large indeed. I have as much regard
for the rights and duties of the Com
mittee on printing as any member

188

OFFICE OF GOVERNOR

Wednesday]

GRAY— WOOL WORTH-SPRAGUE

[June 28

of this Convention, but I take it sir,
as this is the day bids are to be re
ceived and awards made, it is proper
that we should know what has been
the cost of the printing up to, and
including this day. I take it, sir,
that to refer this to the Committee
on Printing would give us no infor
mation whatever. That Committee
has no doubt attended to its duty,
but it is no part of the duty of that
Committee to inform the Convention
what the cost of that printing has
been, or may be. Bills for this print
ing will not be handed the Com
mittee on Printing, but they will be
presented to the Auditor to be certi
fied and then the Treasurer for pay
ment.. We wish to know what that
cost has been up to this time, and
including this day. I hope that in
formation may be obtained and
placed in the posession of the Con
vention.
' The motion of the gentleman from
Richardson (Mr. Towle) was lost.
The resolution was agreed to.
The PRESIDENT. The question
now recurs on the motion of the
gentleman from Douglas (Mr. Has
call) to go into Committee of the
Whole. The motion was agreed to. So at
eleven o'clock the Convention went
into Committee of the Whole with
Mr. Myers in the Chair.
The CHAIRMAN. The Secretary
will read section 6 of the Article on
Executive. The Secretary read the section as
follows: GOVERNOR.
^J 6. The supreme executive power
shall be vested in the governor, who

shall take care that the laws be faith
fully executed.
Mr. WOOLWORTH. Mr. Chairman,
I move the adoption of the section.
The motion was agreed to.
The CHAIRMAN. The Secretary
will please read Article 7.
The Secretary read the section as
follows: ff 7. The governor shall, at the
commencement of each session, and
at the close of his term of office, give
to the general assembly information,
by message, of the condition of the
State, and shall recommend such
measures as he shall deem expedient.
He shall account to the general as
sembly, and accompany his message
with a statement of all monies re
ceived and paid out by him from any
funds subject to his order, with
vouchers, and at the commencement
of each regular sesion, present esti
mates of the amount of money re
quired to be raised by taxation for
all purposes.
Mr. SPRAGUE. Mr. Chairman,
I move to amend by striking out the
words "general assembly" and insert
the word "Legislature."
The motion was agreed to.
Mr. ESTABROOK. I move to in
sert after "term of office", the fol
lowing "and whenever the Legisla
ture may require."
The amendment was agreed to.
Mr. WOOLWORTH. Mr. Chair
man, I move the adoption of this
section as amended.
The motion was agreed to.
The CHAIRMAN. The Secretary
will read section 8.
The Secretary read the section as
follows: fl 8. The governor may, on extra
ordinary occasions, convene the gen
eral assembly, by proclamation, stat
ing therein the purposes for which

SPECIAL LEGISLATIVE SESSIONS

189

Wednesday]

ES T ABROOK— WOOL WORTH

[June 28

they are convened; and the general
assembly shall enter upon no busi
ness except that for which they were
called together.
Mr. ESTABROOK. Mr. Chairman,
I move to insert, after the word
"convened" in the fourth line, the
following, "and no business, except
that for which they were called to
gether, shall have any validity or be
enforced". I will state that this mat
ter has been a stumbling block in the
Constitution of other States, but the
question of what shall be affected by
the passage of the law not named in
the proclamation calling the Legis
lature together has never been fully
settled; and it is a matter of some
difficulty to determine. I do not care
how it is provided. It may be
changed so that we understand dis
tinctly what are the powers of the
Legislature, and it will be satisfac
tory to me. Now our attention here
has been several times called to this
difficulty. I know it was claimed
that very many things done by the
,Legislature in these extra sessions
had not the validity of law because
not mentioned in the proclamation.
If they may go on and enact any
law they please as well in the pro
clamation as those not named at all,
then say so, so that there will be no
more question about it in the courts.
I believe it was the intention origi
nally to absolutely prohibit any ac
tion at the hands of the Legislature
not indicated by the proclamation
that called them together, and this
amendment intends to so express the
idea, that is the intention — that we
express it in plain and proper
language.

Mr. WOOLWORTH. Mr. Chairman,
I do not like the change which.it
is proposed to make in the section.
I prefer the language which has been
proved by constant usage and which
is incorporated in the section. Nor
do I think the criticism passed upon
the language by the gentleman from
Douglas (Mr. Estabrook) is justified.
As it stands the language is a great
deal more sweeping than the lan
guage which it is proposed to insert
in its stead. I prefer that the Consti
tution shall prohibit the Legislature
from entering upon the consideration
of any business but such as is named
in the proclamation calling them to
gether, so that when the proposition
shall come up in the Legislature up
on any subject not so named, it shall
be met right at the threshold of the
discussion with a prohibition. That
is the effect of the language as it
stands. The language which it is
proposed to use instead will permit
the Legislature to go on and consid
er; to enter upon the consideration
of other business, and only deny val
idity to the business when it shall
have been transacted. Now that I do
not like. Does the language propos
ed affect anything more' than the lan
guage used? I think not. When
you say to a man, by an authoritative
provision of law, "you shall not en
ter upon a certain course of conduct,"
do you not certainly provide that if,
in spite of the law, he shall enter
upon that business, that course of
conduct, it shall still be illegal, and
what he does shall be void? That
is most certainly so. For instance,
supposing you have a bill of statute
saying that a certain contract shall

190

SPECIAL LEGISLATIVE SESSIONS

Wednesday]

ROBINS ON— ESTABROOK

[June 28

not be made; and in violation of
that statute a party shall go on and
undertake to contract, and the ques
tion of the validity of the contract
shall come before the court, what
does that court instantly say? It is
a void contract and cannot be enforc
ed, although the provision of the
law should simply be that the par
ties should enter upon the work of
making any such contract. And just
so here. You say that the Legisla
ture shall not enter upon any other
business than that named in the proc
lamation, and by doing so you effect
ually, and in the most positive terms,
render nugatory any business, other
than that named which they under
take. Then you have, in addition,
the prohibition meeting the Legisla
ture at the very threshold saying,
"you shall not enter upon any other
business." The language, as it
stands, is broader than the language
proposed. I like it better.
Mr. ROBINSON. Mr. Chairman, I
hope the amendment of the gentle
man from Douglas (Mr. Estabrook)
will not prevail, the object of it, as
far as I see is simply this — the
learned gentleman says the courts
have not passed upon the validity of
any law passed in defiance of
any such provisions. I take it as true,
I know of none such, and am very
sure none will ever rise. It is well
known that a Constitutional provis
ion of this kind acts as an indication
of the powers of the Legislature; and
if the Constitution provides that no
business of a certain character shall
be transacted, it means what it says;
and if business is transacted, it is
treated as no business whatever. It

strikes me that any amendment to
this section will only get it into a
bungle. It says precisely what it
means. It exercises a strict limita
tion over the Legislature, and there
will be no doubt, if a ,case should
arise, it would soon be settled. I
think the language is precise and
onght to stand.
Mr. ESTABROOK. I do not ma
terially differ, sir, with my colleague
(Mr. Woolworth) and the gentleman
from Lancaster (Mr. Robinson) as to
what would be the legal import.
Perhaps the court would decide in
that way, and perhaps, not. We
have, the gentlemen will remember,
limitations upon the powers of the
Legislature in another clause, which
declares that no bill should embrace
but one subject, which shall be indi
cated by name, specifically. It is
very specific that it shall be accur
ately named in the title, if you pass
an act embracing two subjects, one
of which only is embraced in the
title, that act would be void. When
I look at the reports upon the sub
ject I find they are very conflicting.
In Ohio, where the clause was first
inserted in the Constitution, in the
sixth volume of Ohio reports, it is
simply directory, and does not affect
the validity of the law at all.
Now, then, this is similar in its
character, it is true. It goes on to
state no business shall be entered
upon except that named in the pro
position, and the lawyer perhaps
might understand that whatever
business they did transact, .not nam
ed in the proclamation, should have
no invalidity. But it so happens that
many have been in this Legislature

ADJOURNMENT OF LEGISLATURE.

191

Wednesday]

ESTABROOK— SPRAGUE— HASCALL

[June 28

who were not lawyers, and it might
not receive that construction. I know
that in this State the pages of the
statute books are covered with bills,
laws and proceedings passed at this
called session. I know the one re-
fering to the whitewashing Com
mittee was, and yet it was relied on
as a positive vindication of the Board
of Commissioners for doing what
they did, and it was said the State
was bound by it. There are various
laws in violation of this rule, and it
never has passed under review of the
Supreme Court that I know of. But
on the other point it was settled in
the sixth Ohio. These laws should
have validity, and in order to sift the
question. Therefore I ask, for God's
sake, give us peace on the subject,
and let us know how it shall be set
tled. If you mean to say it is invio
late, I am willing to let this stand
as .it is at the end. Let the gentle
man use his own strong language if
you please; but let this thing be
fixed. There is no State which has
suffered, or is liable to suffer so
much as, we from this kind of thing.
I only propose to have it fixed and
inserted so that not only astute law
yers may understand what it means,
but that members of the Legislature,
coming from whatever place or capa
city they may, understand what is
their duty in regard to this, distinct
ly. The CHAIRMAN. The question is
on the amendment of the gentleman
from Douglas.
The amendment was lost.
Mr. ESTABROOK. Mr. Chairman,
I have another amendment, as fol
lows: "in case of or danger from the

prevalence of disease at the seat of
government, he may convene the Leg
islature at any other suitable place
in the State."
The amendment was agreed to.
Mr. SPRAGUE. In order to make
this section conform with those we
have already adopted, I move to
strike out the words "general assem
bly," and insert "Legislature."
Motion agreed to and the section
adopted as amended.
The Secretary read section nine, as
follows :
^y 9. In case of a disagreement be
tween the two Houses with respect
to the time of adjournment, the gov
ernor may, on the same being certi
fied to him by the House first moving
the adjournment, adjourn the gener
al assembly tb such time as he thinks
proper, not beyond the first day of
the next general session.
Mr. HASCALL. Mr. Chairman, I
have an amendment I wish to offer,
I move to add the words: "but no
general session of the Legislature
shall be so adjourned by the Gover
nor until forty days after the com
mencement of the session." Mr.
Chairman, I will say that the reason
I introduce this is to cover an evil
that might arise. For instance, if by
scheming, ithe Governor should get
one branch of the Legislature to
concur with his own feelings, and if
he should desire to get rid of the
Legislature all that would be re
quired would be to get that branch
to pass a resolution on adjournment;
and if the other house should fail to
pass the same there would be a dis
agreement as to the time of adjourn
ment that would authorize the Gov
ernor to prorogue the Legislature.

192

ADJOURNMENT OF LEGISLATURE

Wednesday]

ROBINSON— KTRKPATRICK-LAKE

[June 28

Mr. ROBINSON. Mr. Chairman, I
do not understand the section- as the
gentleman from Douglas does. This
is only in cases of disagreement. If
both houses adjourn, and they can
not agree, it is proper the Governor
should have the power to say as to
when they shall adjourn, and until
such time he shall see fit, not be
yond the first day of the next gen
eral session.
Mr. KIRKPATRICK. Mr. Chair
man, I have thought that this might,
perhaps, be used against the interests
of. the State. I have always doubted
whether it was democratic to give
such power to the Executive of the
State. Just prior to the adoption of
the present Constitution of the State
of Nebraska, I had occasion to can
vass the Constitution, on this parti
cular provision, which is similar to
the one in the present Constitution
on the same subject. I undertook to
show that a dangerous use might,
perhaps, be made of this commission.
I would state I was opposed to the
adoption of the present Constitution
at the time; and was willing to make
use of any honest argument for the
purpose of its defeat.
We find that the Governor could
slip in and by the exercises of the pre
rogative contained in this section ad
journ the Legislature to a time not
beyond the day set for the convening
of the next Legislature. I do not
know that I can call to mind but one
instance when this power of adjourn
ing the Legislature was exercised by
the Governor. This was in Illinois,
during the late war, Governor Yates,
of that state dissolved the Legisla
ture, and we were all glad at that

time, that he had the power.
Mr. LAKE. Mr. Chairman, I agree
entirely with the gentleman from
Lancaster (Mr. Robinson) there
could be no disagreement, such as is
contemplated here, except with re
spect to the time. Suppose a concur
rent resolution be introduced in one
House to adjourn — suppose, for in
stance, the Senate passes this resolu
tion, and it goes to the House, and
the House takes no action upon it
but lets it lie upon the table, and
refuses to act upon it, there is no
disagreement up to that time when
the Legislature should be adjourned.
There can be none, and it seems to
be contemplated by t'.ie section that
there must be a disag eement with re
spect to the time. If, for instance,
one House move an adjournment to
a certain time, and the other House
adjourns to another certain time,
and they cannot agree upon the time
for this adjournment, then, under the
section, the house moving shall re
port that disagreement to the Gover
nor; then the Governor may adjourn
the Legislature, but not beyond the
day set for the next regular session.
I am in favor of this section remain
ing just as it has been reported by
the Committee, I think it is right. I
think if there is a disagreement as to
the time when the Legislature should
adjourn that there should be a pow
er vested somewhere to adjourn that
body, and I know no better place
than the Executive. If but one
house has fixed a time to adjourn,
then there can be no disagree
ment. Mr. HASCALL. Mr. Chairman,
the gentleman's position is unten-

ADJOURNMENT OF LEGISLATURE

193

Wednesday]

HASCALL- LAKE

[June 28

able for this reason; it is not the
usual way to adjourn the Legislature,
for a motion to be made in one body
to adjourn to one time, and in the
other body to adjourn to another
time. It is done by concurrent reso
lution passed by one body and sent
to the other. They usually have a
standing rule that concurrent resolu
tions shall come up in their regular
order, so that the resolution is reach
ed if there is only one, two, three,
or four, members in favor of its pas
sage. Secondly, when it comes lip
in its order, and they refuse to pass
that concurrent resolution to ad
journ, that is a disagreement as to
the time for adjournment. I say
there is a disagreement as to the
time, because one body desires to ad
journ to a certain time, and the other
is unwilling to pass a resolution fix
ing the time of adjournment. This
concurrent resolution relates to a
permanent adjournment, and not for
a few days: because as our Consti
tution stands now, one branch of the
Legislature may adjourn for a week,
or ten days without the concurrence
of the other branch. A permanent
adjournment is effected in this way;
the time is fixed at twelve o'clock of
a certain day, and when that time
arrives, the session terminates. This
forty day clause was only for the
purpose of prohibiting members from
receiving pay for a greater length of
time, but their acts were valid. They
might remain in session as long as
they pleased, but they receive no pay
for extra time. I say that the amend
ment proposed here is the only safe
one for us to adopt; that is that at a
general session of the Legislature,
13

the Legislature shall remain in ses
sion at least forty days, unless by
agreement of both houses, they re
main in session a longer time; and
that the Governor shall not have the
power to adjourn the Legislature in
less than this length of time. I think
it was a valid objection to the Con
stitution raised by the gentleman
from Cass (Mr. Kirkpatrick).
Mr. LAKE. Mr. President, I
think the position taken by my col
league (Mr. Hascall) is untenable.
The proposition, as he laid it down,
that only one house can move to ad
journ —
Mr. HASCALL. Mr. Chairman, I
wish to correct the gentleman, I in
tended to say —
The CHAIRMAN. The gentleman
from Douglas (Mr. Hascall) must not
interrupt the speaker.
Mr. LAKE. I cannot say what the
gentleman intended to state, I am
only repeating what he did state —
that but one resolution could be in
troduced, and that that was the usual
way. I say, Mr. Chairman, it is usual
for a resolution to adjourn to be in
troduced in either branch of the Leg
islature. It is not an uncommon
thing for the joint resolution to be
introduced in the Senate, and sent to
the House, and that one body will
fix one time, and the other another.
When this is the case and the two
branches cannot agree upon the time
for adjournment, I think it is highly
proper there should be a power vest
ed somewhere to settle between them.
Another, point, the gentleman made;
I understand him to say that it is
usual for one House to adjourn for a
certain number of days without the

194

ADJOURNMENT OF LEGISLATURE

Wednesday]

HASCALL-SPRAGUE— KIRKPATRICK

[June 28

consent of the other. Now it is not
intended by this Section to abridge
that right at all. That will be pro
vided for in the article on "Legis
lative." This is simply providing
for the powers which the Executive
shall exercise in a certain contingen
cy. It did not intend to provide that
neither House of the Legislature
shall not adjourn without a concur
rence from the other House. This
section is not intended, at all, as a
limit upon any right of the Legis
lature; it is only when the two
Houses shall disagree as to when the
Legislature shall adjourn, and not
as to when either shall adjourn.
Mr. HASCALL. Mr. Chairman I
protest against the gentleman
changing a thing which I said
in reference to a temporary
adjournment, to a permanent.
I attempted to show him that ad
journments were made by a concur
rent resolution, and that may be
introduced in either House of the
Legislature, or the same resolution
may be introduced in both houses at
the same time. I do not believe the
gentleman is so dull that he cannot
understand, but he has not been in
the Legislature for some time per
haps, and he spoke without due con
sideration. It is necessary to have
this added to this section in order
that this extraordinary power may
not be used to the detriment of the
State. Mr. SPRAGUE. Mr. Chairman,
Being opposed to this amendment I
wish to illustrate my position. Now,
sir, we will suppose that the Legisla
ture meets, and in the first five days
performs all the business before them

and there is one question only be
tween them, and that is a disagree
ment about the time to which they'
shall adjourn. Now, if the gentle
man's amendment Is passed they are
to be kept here forty days before the
Governor can have the authority to
adjourn them. It strikes me that in
such sa case there should be some
power to decide that question, and
I think the Committee has placed
the power here in the proper person;
hence I am not in favor of the amend
ment. Mr. KIRKPATRICK. Mr. Chair
man: This question resolves itself
first into this — Whether the Leg
islature shall have the power to ad
journ, or whether it shall be exer
cised by the Executive. The gen
tleman seems to think that unless
the Governor has the power to ad
journ the Legislature, that they will
have to remain here for forty days.
Now, sir, I for one am not willing
to trust this power to adjourn in
the hands of our representatives. If
it is put into the hands of the Gover
nor it may be used against the in
terests of the State.
If the gentlemen will read the Con
gressional Globe they will find where
the House of Representatives have
been held together by the Senate
and had to adjourn from day to day
without a quorum, the Senate imag
ining that they had important busi
ness. By examination I found that
the President had power and should
have adjourned the Congress. I am
satisfied to leave this power regard
ing the setting and adjournments of
the Legislature to the Legislature
themselves and I am willing to fix

ADJOURNMENT OF LEGISLATURE

195

Wednesday]

TOWLE— ESTABROOK

[June 28

a Constitutional limit and then leave
it to them.
Mr. TOWLE. Mr. Chairman: The
amendment made by the gentleman
from Douglas (Mr. Hascall) if I un
derstand it right, is this, that al
though the two houses of the Legis
lature disagree as to the time of ad
journment, yet the Governor cannot
prorogue the Legislature until they
have sat for forty days. It is proba
ble, or quite certain, that we shall
have a session of the Legislature
each year hereafter, and there may
be instances when the business might
be done in ten days, or even in two
or three days; and then, if a disa
greement is gotten up, they must
remain here until the end of the
forty days before the Governor can
exercise the proroguing power.
For that reason, I am opposed to
the amendment. And then again,
the gentleman says the Governor
might induce one of these houses to
disagree to any time of adjournment,
so that he may adjourn the Legis
lature and gain his own interests.
If he has the power to do that he
has the power to break down any
law before it becomes valid.
Mr. ESTABROOK. Mr. Chairman,
we see in this question what we
have seen in others and suggested
that instead of employing some apt
words we have followed precedents.
Let me refer to things which are oc-
curing in our own history as a State.
The probability is that in many old
states this question has not, and
never will be raised. But it seems
to me that this State is making
history and with our rapid progress
many things may happen that never

will occur in an older state. It seems
strange to me that this young State,
a real Young America, should be
bound to follow the precedents of the
old states in the frame of our Consti
tution. Let us examine and dis
cover the reasons they have had
in the use of those words and
then employ apt words, so that plain
men, as well as men of letters, may
understand the duties which they are
expected to perform.
I wish the committee that reported
this article would employ such apt
words, so that there could be no
doubt as to what they meant. I
will state that I understand that this
question cannot arise when one body
says it wishes to adjourn and the
the other do not want to adjourn at
all. It is only when both houses wish
to adjourn that this exigency can
arise. I believe it to be my duty
and I propose to vote to devise a Con
stitution for Nebraska, and not adopt
the Constitution of Illinois, or any
other state. I have a little spirit,
if I have seen many years, of the
Young America in me.
During the late impeachment trial
there was one branch of this Legis
lature, the one that occupied the
room where we sit to-day, that want
ed to adjourn but the other branch
did not want to adjourn and conse
quently they were kept here with
nothing to do until it was a notor
ious fact that there was not a quo
rum in the house and they did not
dare to call the house. Under this
state of facts how could this body
pass a concurrent resolution? It
could not be done with less than a
quorum and if so, the body would be

196

ADJOURNMENT OF LEGISLATURE

Wednesday]

W OOL WORTH— HAS CALL

[June 28

perpetuated forever if there was no
proroguing power. I hope this
thing will be perfected all the way
through. I do not exactly approve
of all this. It has some method in
it. I would say 20 days. When that
body refuses to agree in regard to
time we must believe there is some
ground for it and when this thing
has been vibrating between two bod
ies, and they fail to agree then leave
the power to the Executive to settle.
The idea that if at the expiration of
five days, both parties agreed they
had performed their duties that it
would require Executive interference
is absurd. The only question is
when they will adjourn if they have
got through their business. I shall
vote for this as it is, because it is
better as it now stands, and if you
shorten to twenty days I would still
prefer it.
Mr. HASCALL. I accept the
amendment of 2 0 days instead of
40. Mr. WOOLWORTH. Mr. Chair
man, I desire to make one remark,
I am very sorry to be obliged again
to differ with my friend from Doug
las (Mr. Estabrook) with respect to
this language and with respect to the
other language used in this Article.
Now, sir, language is used for the
purpose of conveying ideas, and if
that language is plain it is just as
easily understood by what he calls
a common man as by an astute law
yer. And the language used in this
Article, to every man that will read
it with attention, will be just as clear
and perspicuous as any language that
could be employed. Now, sir, I will
not vote for the adoption of any lan

guage because I find it is in the Con
stitution of an older State, or young
er State. The language I find proved
by usage, extending from the numer
ous constitutions all along down to
the present time, does commend it
self to me; it commends itself to the
consideration of every man; because
it has had the approval of a great
many other men; and the very fact
of its constant usage, the very fact
that it has been employed all along
is the approval of that language. And
this language, finding itself placed
first, perhaps, in the Federal Consti
tution, has been adopted, not only in
Connecticut, where my friend, I pre
sume, did not come from, but also in
the Constitution of almost all the
states in the Union. Now is there
any obscurity in the language?
What does it say? You would infer
from the speech of the gentleman
that there was obscurity here in re
spect to the manner in which there
is a disagreement between the two
houses. If there be, then correct the
obscurity by all means; but 'is there
any obscurity? No, gentlemen. It
is perfectly plain. It is written here
so- that what he calls a plain man
may understand it. Now, sir, I do
not think you are to better this Arti
cle, couched in this clear and unmis
takable language, by adopting some
phraseology that happens to suggest
itself to any gentleman attending
here and considering it for the first
time. I do not think you are to bet
ter this language that has met the
approval of a great many other
bodies like this before, by any ad
ditional or other phraseology. I
think you have got here exactly the

ADJOURNMENT OF LEGISLATURE

197

Wednesday]

WOOLWORTH— MYERS— STEWART

[June 28

language that expressed the idea.
Is the idea wrong upon that matter?
While the gentleman here (Mr. Esta
brook) is discussing language my
colleague on the other side of the
house (Mr. Hascall) is discussing a
principle. Now, turning from the
language and the general considera
tion that should govern us in adopt
ing language to express our ideas,
what is it we desire to express in this
Constitution and what is it desired
on the other side of this hall to ex
press? Let us see what the phrase,
with the provision as it is proposed
by the Committee is. "That when
the two houses shall disagree in re
spect to the time of adjournment,"
nothing else. They have agreed, and
my friend upon the left (Mr. Esta
brook) says that the two houses have
agreed that they will adjourn, but
they disagree as to the time of ad
journment. Then if that be so, what
my friend upon the other side (Mr.
Hascall) said in his opening speech
upon this subject goes for naught.
There cannot be such an exigency as
he supposes, where two houses are
assembled and organized, one of
them desires to adjourn and the other
does not. They must have advanced
far enough in the transaction of their
business and the consideration of the
subjects called together to have
agreed between themselves that they
will adjourn; and the difficulty, is
only as to the time. I say, as my
friend from Douglas ( Mr. Lake)
says, that they have reached that
time, and agreed that they must ad
journ, and only disagree upon the
matter of time. There should be
some party, some power, outside of

this, to fix that point of time, the only
point upon which they disagree; and
what power is more fit to exercise it
than the Executive? The language
here is apt to express precisely the
idea which it is sought to express,
and the idea is correct that upon that
subject, there shall be somebody out
side of the two houses who shall fix
the time without waiting ten, twenty
or forty days or any other specific
period of time.
Mr. STEWART. I move that the
Committee rise, report progress and
ask leave to sit again.
The motion was agreed to.
Mr. MYERS. Mr. President. The
Committee of the Whole have had
under consideration the Article en
titled Executive, and have instructed
their Chairman to report progress
and ask leave to sit again.
Mr. STEWART. I move we ad
journ. Mr. WOOLWORTH. Before ad
journment is put I desire to ask leave
of absence until to-morrow noon.
Something has been said here from
time to time in regard to my personal
absence from this body. I do not
think there is any gentleman in this
house, who, from first to last has dis
charged his duty more faithfully
than myself. My Committees have re
ported and discharged all they have
to do. The reason I wish to leave is,
I desire, this evening to go to school
where my son is. A ceremony is to
take place in which I am very deep
ly personally interested.
The PRESIDENT. I have never
heard a word about your absence.
Mr. WAKELEY. I also ask leave
of absence until to-morrow noon.

198

LEAVE OF ABSENCE— PRAYER

Thursday]

McCANN-HASCALL— NEWSOM —LAKE

[June 29

Leave was granted NEM. CON.
Mr. McCANN. Mr. President, I
move that the special order for two
o'clock be the consideration of the re
port of the Committee on Legislative.
Mr. HASCALL. I hope that mo
tion will not prevail. We have
taken up an Article and ought to
finish it; this switching off from one
Article to another will certainly re
tard our business. We have now pro
ceeded with the Executive Article,
and it is proper that we should con
tinue and finish it. And if we give
any other preference it should be the
Bill of Rights, as that was the first
reported. Mr. McCANN. Then take up that
report. Mr. WOOLWORTH. I desire to
say, in reference to my own absence,
I have no earthly objection to the
consideration of this Article during
my absence. So far as I am con
cerned, I am not particular as to this
Article or any other, I doubt whether
I should make the application to be
excused and only did it after it
seemed to a good many gentlemen
who knew of my circumstances, that
that it was very proper that I should
do so.
Mr. NEWSOM. I believe the mo
tion of my colleague (Mr. McCann)
was to take up the Article on Bill of
Rights, in case we do not proceed
with the executive. Judge Mason is
away, and I am not in favor of tak
ing up any Article when the chair
man is away. He is the man who has
done the work.
Mr. LAKE. I would prefer that
the chairman of the Executive Com
mittee should be present during the

consideration of the remaining sec
tions of the article. In as much as
we have plenty of work to do other
than that it would be just to him to
defer it. I shall object to taking up
and proceeding further with that ar
ticle until his return. He is to re
turn by to-morrow noon.
Mr. GRENELL. There is undoubt
edly work enough to do in the vari
ous committees. I therefore move
to amend the motion to adjourn to
to-morrow morning at ten o'clock.
The Convention divided and the
motion was agreed to.

FOURTEENTH DAY.
Thursday, June 29th, 1871.
The Convention was called to or
der at 10 o'clock by the President.
Prayer.
Prayer was offered by the Chaplain
as follows:
Almighty, Everlasting, Holy One.
Defend us now and at all times, we
pray. Defend us from an evil world
and evil self. All the years of our
lives, may we fear the Lord our God.
May we fear and love the Lord our
God evermore. Amen.
Mr. SPRAGUE. Mr. President, I
ask leave of absence for Mr. Parker.
Leave granted.
Reading of the Journal.
The Journal of yesterday was read
and approved.
Communications and Presentation of
Petitions.
Mr. PHILPOTT. Mr. President, I
have a memorial from the Grand
Lodge of Good Templars of this
State.

GOOD TEMPLAR'S PETITION

199

Thursday]

PHILPOTT-VIPQUAIN-MASON

[June 29

The Secretary read the memorial
as follows:
Memorial of the Grand Lodge of
Nebraska, I. O. G. T.
To the Honorable the Constitu
tional Convention of the State of Ne
braska, now assembled in the City of
Lincoln, Nebraska.
WHEREAS: the use of intoxicat
ing liquors as a beverage can be of
no possible benefit to mankind, and
has already inflicted untold misery,
degredation and crime, thereon: and:
WHEREAS: The sale of said
liquors as a beverage is detrimental
to the efficient civil government of
the state of Nebraska; and
WHEREAS: The prohibition of
the sale of said liquors as a beverage
is a measure of true political econo
my: and
WHEREAS: A large portion of
the citizens of the state of Nebraska,
desire to have the sale of said liquors
prohibited in their respective portions
of said state, now therefore, we the
Grand Lodge of Nebraska, I. O. G. T.,
most earnestly petition your Honor
able body to incorporate in the new
Constitution of the State of Nebraska,
a provision providing that a majority
of the legal voters in each county,
shall have the power by vote, with
in their respective counties, to re
strict and prohibit the sale of intoxi
cating liquors as a beverage.
And we in duty bound will ever
pray, etc.
Mr. PHILPOTT. Mr. President, I
move that the memorial be referred
to a special committee of five.
Mr. MANDERSON. Mr. President,
I move to ,amend by referring it to
the Miscellaneous Committee.
The amendment was lost.
Mr. VIFQUAIN. Mr. President, I
move to amend by referring to the
Committee on Military Affairs.
Mr. MASON. Mr. President, I
hope this communication, coming

from a very respectable class of citi
zens, will be treated with that cour
tesy it deserves. The gentleman pre
senting this memorial, which doubt
less represents, to a considerable ex
tent, the temperance element of this
State, moves that the communication
be referred to .a special committee.
There are facts stated in this com
munication which, upon investiga
tion, can be proved. While it may
not meet my own views to incorpor
ate the provisions asked for, in the
Constitution, yet it seems to me jt
is not treating our fellow citizens —
the Good Templars' organization,
which has already accomplished
much good, and done very much for
the amelioration and betterment of
the condition of our fellow men —
with proper consideration. It seems
to me that to refer this communica
tion to the Committee on Military
Affairs is not treating it with that
respect these gentlemen have a right
to receive at the hands of this Con
vention. And for these reasons, Mr.
Chairman, the resolution urged by
the gentleman presenting the memo
rial should receive the approbation
of the Convention, and that it may be
committed to the care of its friends.
These gentlemen who memorialize
this Convention are only exercising a
natural right, an inherent right, and
its exercise should be treated with
the courteous respect that the ser
vant should exercise towards its mas
ter. For these gentlemen are thus
constituted, to a very considerable
extent, the master element in the
progress of this State. For these
reasons Mr. President, I hope the
motion to commit to the Committee

200

GOOD TEMPLAR'S PETITION

Thursday]

ESTABROOK-MANDERSON-KIRKPATRICK

[June 29

on Military Affairs will not prevail,
and that the motion fo» a special
committee moved Dy the gentleman
from Lancaster (Mr. Philpott) will
prevail. Mr. ESTABROOK. I am favor
able to the memorial, and it seems to
me we have a committee to cover
the whole ground. I think the Legis
lative Committee is the right one.
Mr. MASON. Has that Committee
reported? The PRESIDENT. Yes.
Mr. ESTABROOK. Well, the sub
ject matter should be in their care.
Mr. MASON. I suppose the gen
tleman from Lancaster (Mr. Philpott)
has the special keeping of this com
munication, and for that reason he
may have some reason for having
this report from the standing com
mittee. I think it will be better to
commit to the special committee as
he desires.
Mr. MANDERSON. Mr. President,
I would suggest that the committee
on Miscellaneous Subjects has on its
list the name of the gentleman from
Lancaster (Mr. Philpott.) It seems
to me any one of the committees is
able to consider this question, and
we should not multiply committees
when it is unnecessary.
Mr. ABBOTT. Mr. President, As
this refers to county government, I
move it be referred to the Committee
on Counties. It seems to me that is
the proper place for it.
The PRESIDENT. It is out of
order, but I will entertain it. The
question is on the motion to refer to
the Military Committee.
Motion not agreed to.
Mr. MASON. Mr. President, I

move to refer to the Miscellaneous
Committee. Mr. PHILPOTT. I withdraw my
motion to refer to a special com
mittee. The reason I did not move
to refer to the Miscellaneous Com
mittee is that I introduced a resolu
tion a few days ago and it was refer
red to that committee; and it has
had nothing done with it.
Mr. KIRKPATRICK. I hope the
gentleman will not withdraw his mo
tion for a special committee.
Mr ABBOTT. I withdraw my
motion. Mr. MANDERSON. I withdraw
my motion to refer to the Miscellane
ous Committee.
Mr. KIRKPATRICK. Mr. Chair
man, I did not distinctly hear the
resolution, or proposition or what
ever it is, but I think it is a memo
rial from the Grand Lodge of Good
Templars of the State of Nebraska,
asking this Convention to make a cer
tain provision in our proposed Consti
tution. I have only to say that it has
been the custom in Legislative bod
ies to refer measures of this kind to
the friends of that measure, and not
to its enemies. I think it would be
proper that the usual course be taken
in this case.
I hope the gentleman's motion will
prevail, and that this matter will be
referred to a select committee.
Mr. STEVENSON. Mr. President,
I believe I am Chairman of the Com
mittee on Miscellaneous Subjects. I
have not seen fit to call that Com
mittee as yet, I thought, as the con
vention advanced further that there
would be something more to go to
that Committee. I would say, that

STATE AND MUNICIPAL DEBT

201

Thursday]

PHILPOTT— McCANN— KIRKPATRICK

[June 29

when the Committee meets, this ques
tion of liquor traffic will receive due
consideration, and if the Committee
see fit, they will introduce a plank,
prohibiting the sale of intoxicating
liquors. The PRESIDENT. The question
is upon the motion to commit to a
special committee.
Mr. PHILPOTT. Mr. President, I
call for the ayes and noes.
The Secretary proceeded to call
the roll.
The result was then announced —
yeas 35; nays 11 — as follows:
YEAS — 35. '
Abbott, Myers,
Ballard, Moore,
Campbell, Majors,
Cassell, McCann,
Curtis, Neligh,
Gibbs, Newsom,
Granger, Philpott,
Grenell, Price,
Gray, Reynolds,
Griggs, Robinson,
Hascall, Scofield,
Hinman, Shaft,
Kenaston, Sprague,
Kilburn, Stewart,
Kirkpatrick, Thummel,
Lake, Thomas,
Lyon, Weaver,
Mason, NAYS^ll.
Boyd, . Stevenson,
Eaton, Tisdel,
Estabrook, Towle,
Ley, Vifquain,
Manderson, Wilson.
Speice, ABSENT OR NOT VOTING.
Maxwell, Wakeley,
Parchen, Woolworth,
Parker, Mr. President,
Mr. McCANN. Mr. President, your
Committee on Revenue and Finance
beg leave to submit their report and

ask the adoption of the accompanying
resolution, and I move that the rules
be suspended, the bill read a first and
second time by its title, and one
hundred copies ordered printed.
The PRESIDENT. The rules will
be suspended if there is no objection.
The Secretary read the bill by title.
The PRESIDENT. First reading
of the bill.
The Secretary again read the bill
by title.
The PRESIDENT. The second
reading of the bill. The rule of the
House is unless some gentleman ob
jects, that 100 copies be printed.
Mr. KIRKPATRICK. Mr. Presi
dent, I would like to present a report
and would like to read it myself.
The gentleman read as follows:
Report of the Committee on State,
County and Municipal Indebted
ness.
Mr. President:
Your Committee on State, County
and Municipal Indebtedness respect
fully offer the following report:
That they have under considera
tion the subject of proper provisions
to be incorporated in the Constitution
in relation thereto, and have agreed
upon the following Article.
1| 1. The credit of the State shall
not in any manner be given or loaned
to or in aid of any individual, asso
ciation or corporation whatever; nor
shall the State ever hereafter become
a joint owner or stockholder in any
company in the State, or elsewhere,
formed for any purpose whatever;
hor shall the State ever assume the
debts of any county, city or town or
other municipality, or of any private
corporation whatever, unless such
debt shall have been created to
repel invasion, suppress insurrection
or defend the State in war.
ff 2. The State may contract debts

202

STATE AND MUNICIPAL DEBT

Thursday]

KIRKPATRICK-GRAY-CAMPBELL

[June 29

to supply casual deficits or failures
of revenue, or to meet expenses not
otherwise provided for; but the ag
gregate amount of such debts, direct
and contingent, whether created by
one or more acts of the Legislature,
or at different periods of time, shall
never at any one time exceed the sum
of two hundred and fifty thousand
dollars, and the monies arising from
the creation of such debts shall be
applied to the purpose for which it
was obtained, or to repay the debts
so contracted, and to no other pur
pose whatever.
f 3. In addition to the above lim
ited power, the State may contract
debts to repel invasion, suppress in
surrection, defend the State in war,
or to redeem or pay the present un
paid debts of the State; but the
money arising from the contracting
of such debts shall be applied to the
purpose for which it was raised, or
to repay such debts, and to no other
purpose whatever.
ff 4. After the adoption of this
Constitution no county, city, town,
municipality or political corporation
shall ever be allowed to become in
debted in any manner, or for any pur
pose, to an amount in the aggregate
exceeding at any one time five per
centum on the value of the taxable
property within said county, city,
town, municipality or political cor
poration, to be ascertained by the
last assessment or taxable list of
property made under the laws of the
State next preceding the incurring
of such indebtedness.
All of which is respectfully sub
mitted. S. M. KIRKPATRICK, Chairman.
Mr. KIRKPATRICK. I move that
the rules be suspended, the bill be
read a first and second time by title
and 100 copies ordered printed.
Mr. ESTABROOK. Mr.President,
I move to amend by making it 150
copies, after talking with a printer,

I find that the extra cost will not be
more than $2.00.
Mr. GRAY. Mr. President, I
would like to inquire of the chairman
of the Committee which has just re
ported, whether a resolution intro
duced by me and substantially con
taining an article prohibiting dona
tions to Railroads has been return
ed by that Committee.
Mr. KIRKPATRICK. Mr. Presi
dent, I will state for the information
of the gentleman, that there is in the
possession of this Committee, several
resolutions, etc., embracing and cov
ering certain subjects, and I will
state that the Committee is not ready
to report upon these subjects just
now, and the Committee have agreed
to ask leave to make another report,
and will then report back the resolu
tion the gentleman refers to, and
other matters also.
The PRESIDENT. No objection
being made the Article will be read
the first and second time by its title.
Mr. ESTABROOK. I move that
150 copies be ordered printed.
The motion was agreed to.
Mr. CAMPBELL. Mr. President,
As Chairman of the Committee on
Printing I have learned that it will
only cost about 30 cents additional
for each page, and therefore, I would
move that there be 150 copies, of the
reports of the Committees on Finance
printed. The motion was agreed to.
Mr. THUMMEL. Mr. President,
your Committee on Public Accounts
and Expenditures, beg leave to sub
mit the following report. I move
that it be read the first time at
length, the second time by its title,

STATE CAPITOL— PRINTING

203

Thursday]

THUMMEL— CAMPBELL

[June 29

and ordered printed.
The secretary read the report as
follows:Report of tho Committee on Public
Accounts and Expenditures.
Mr. President:
Your Committee on Public Ac
counts and Expenditure beg leave to
report the following section, and
would respectfully recommend that
the same be adopted by the Conven
tion. GEORGE H. THUMMEL, Chairman.
The Legislature shall not appro
priate out of the State Treasury, or
expend on account of the capitol
grounds and construction, completion
and finishing of the State house, a
sum exceeding in the aggregate two
millions of dollars ($2,000,000),
without first submitting the propo
sition for an additional expenditure,
to the legal voters of the state at a
general election; nor unless a ma
jority of all the votes cast at such
election shall be for the proposed ad
ditional expenditure.
Mr. CAMPBELL. I move that 150
copies be ordered printed.
The motion was agreed to.
Mr. CAMPBELL. Mr. President,
your Committee on Printing and
Binding beg leave to submit a re
port. The Secretary read the report as
follows:Report of Committee on Printing and
Binding.
Mr. President. The Committee on
Printing to whom was referred the
resolution, instructing the Committee
to advertise for bids on incidental
printing, would respectfully report
that they have performed that duty.
and have received and opened bids
from the firms of Randall &
Smails, Gere & Brownlee, and
find that Randall & Smails

bid for "Bill printing, bill form
composition per 1000 "ems", 70 cents
Flat cap paper per quire 30 cents
Press work, per quire 8 cents, was
the lowest bid for that character of
printing, and the Committee entered
into a contract with said firm for the
incidental printing of the same.
The 'Committee further find, that
the bids of Gere & Brownlee for all
printing other than bills per 1000
ems. Composition  74
Per quire press work  07
Per quire Flat Cap  29
Per quire Flat Letter  2 5
Per quire Book Paper  00
Per 1000 ems rule and figure
work  1.11
was the lowest bid for this class of
work and have entered into contract
with said firm for the incidental
printing of the same. The Commit
tee would respectfully submit the fol
lowing resolution:
RESOLVED: That the Secretary
of State be required to furnish the in
cidental printing under the contract
made and submitted by the Commit
tee. Mr. CAMPBELL. Mr. President, I
move the adoption of the resolution.
The motion was agreed to.
The PRESIDENT. The select
Committee of five to whom was re
ferred this memorial will consist of
Messrs. Philpott, Mason, McCann,
Gray and Lyon.
Mr. ESTABROOK. Mr. President,
What is the order of business.
The PRESIDENT. We are under
the 4th order "Reports of Standing
Committees." We will now pass from
that to Reports from Select Commit
tees. Mr. ESTABROOK. Mr. President,
if there is nothing under that order,
I move that the rules be suspended
and that the Convention do now re-

204

BILL OF RIGHTS

Thursday]

MASON -ESTABROOK— NE WSOM

[June 29

solve itself into the Committee of the
Whole on the report of the Commit
tee on Bill of Rights.
The motion was agr,eed to.
So the Convention went into Com
mittee of the Whole, Mr. Griggs in
the Chair, on the report of the Com
mittee on Bill of Rights.
The CHAIRMAN. The Secretary
will read the report.
The Secretary commenced to read
and was interrupted.
Mr. MASON. Mr. Chairman, I
move that this Committee now con
sider this bill section by section.
Mr. ESTABROOK. Let me sug
gest to the gentleman that this bill
has not yet been read to the Con
vention. It is here under the sus
pension of the rules and I think it
ought to be read once at least, for
information. Mr. MASON. If that is the case,
I will withdraw my motion.
Mr. ROBINSON. I move to dis
pense with the reading of the report.
Mr. NEWSOM. I rise to a point
of order. The motion is to dispense
with the reading. I call for the en
forcement of the rule that proposi
tions submitted to Committee of the
Whole shall be first read through by
the Secretary.
Mr. ESTABROOK. There can be
no suspension of rule in Commit
tee of the Whole.
The CHAIRMAN. The Chair will
so decide.
The Secretary read the Article as
follows:Report of The Committee on Bill
of Rights.
Mr. President:
Your Committee on "Bill of

Rights" report the following pream
ble and article 1 of the proposed Con
stitution and would respectfully re
commend that the same be adopted
by the Convention. O. P. MASON,
Chairman Committee Bill of Rights.
The Constitution of the State of Ne
braska.
PREAMBLE.
We, the people of the State of Ne
braska — grateful to Almighty God
for the civil, political and religious
liberty which He hath so long permit
ted us to enjoy, and looking to him
for a blessing upon our endeavors
to secure and transmit the same un
impaired to succeeding generations
— in order to form a more perfect
government, establish justice, insure
domestic tranquility, provide for the
common defense, promote the general
welfare, and secure the blessings of
liberty to ourselves and posterity,
do ordain and establish this Consti
tution for the State of Nebraska.
ARTICLE 1.
BILL OF RIGHTS.
fi" 1. All men are by nature free
and independent, and have certain in
herent and inalienable rights— among
these are life, liberty and the pursuit
of happiness. To secure these rights
and the protection of property, gov
ernments are instituted among men,
deriving their just power from the
consent of the governed.
f 2. No person shall be deprived
of life, liberty or property without
due process of law.
fl 3. The free exercise and enjoy
ment of religious profession and wor
ship, without discrimination, shall
forever be guaranteed; and no per
son shall be denied any civil or po
litical right, privilege or capacity on
account of his religious opinions;
but the liberty of conscience hereby
secured shall not be constructed to
dispense with oaths or affirmations,
excuse acts of licentiousness, or jus
tify practices inconsistent with the

BILL OF RIGHTS

205

Thursday]

[June 29

peace or safety of the State. No per
son shall be required to attend or
support any ministry or place of wor
ship, nor shall any preference be
given by law to any religious denomi
nation or mode of worship.
fl 4. Every person may freely
speak, write and publish on all sub
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth, when published with good mo
tives and for justifiable ends, shall
be sufficient defense.
fl5. The right of trial by jury as
heretofore enjoyed, shall remain in
violate; but the trial of civil cases
before justices of the peace by a jury
of less than twelve men, may be au
thorized by law.
ff 6. The right of the people to be
secure in their persons, houses, pa
pers and effects, against unreasonable
searches and seizures, shall not be
violated, and no warrant shall issue
without probable cause, supported by
affidavit, particularly describing the
place to be searched and the persons
or things to be seized.
fl7. All persons shall be bailable
by sufficient securities, except for
treason and murder, where the proof
is evident or the presumption
great; and the privilege of the writ
of habeas corpus shall not be sus
pended, unless when in case of re
bellion or invasion, the public safety
may require it.
fl8. No person shall be held to
answer for a criminal offense, unless
on an indictment of a grand jury,
except in cases in which the punish
ment is by fine, or imprisonment
otherwise than in the penitentiary,
in cases of impeachment, and in cases
arising in the army and navy, or in
the militia when in actual service
in time of war or public danger.
fl9. In all criminal prosecutions
the accused shall have the right to
appear and defend in person and by
counsel; to demand the nature and
cause of the accusation, and to have

a copy thereof; to meet the witnesses
face to face, and to have process to
compel the attendance of witnesses
in his behalf, and a speedy public
trial by an impartial jury of the
county or district in which the of
fence is alleged to have been com
mitted. |f 10. No person shall be compell
ed in any criminal case to give evi
dence against himself, or be twice
put in jeopardy for the same offence.
ffll. All penalties shall be , pro
portioned to the nature of the of
fence; and no conviction shall work
corruption of blood or forfeiture of
estate; nor shall any person be trans
ported out of the state for any of
fence committed within the same,
nor shall cruel and unusual punish
ment be inflicted.
fll2. No person shall be imprison
ed for debt, arising out of, or found
ed on a contract express or implied,
except in cases where there is strong
presumption of fraud.
fll3. Private property shall not
be taken or damaged for public use
without just compensation. Such
compensation when not made by the
state shall be ascertained by a jury
as shall be prescribed by law. The
fee of land taken for railroad tracks,
without consent of the owners there
of, shall remain in such owners, sub
ject to the use for which it was taken.
fll4. No ex post facto law, or law
impairing the obligation of contracts,
or making any irrevocable grant of
special privileges or immunities, shall
be passed.
fll5. The military shall be in strict
subordination to the civil power.
ffl6. No soldier shall in time of
peace be quartered in any house with
out the consent of the owner; nor in
time of war except in the manner
prescribed by law.
|f 17. The people have a right to
assemble in a peaceable manner to
consult for the common good, to
make known their opinions to their
representatives, and to apply for a

206

BILL OF RIGHTS

Thursday]

KIRKPATRICK— HASCALL

[June 29

redress of grievances.
|f 18. All elections shall be free and
there shall be no hindrance or im
pediment to the right of a qualified
voter to exercise his franchise.
|f 1 9. Treason against the state
shall consist only in levying war
against the state, or in adhering to its
enemies giving them aid and com
fort. No person shall be convicted
of treason, unless on the testimony
of two witnesses to the same overt
act, or on confession in open court.
|f 2 0. The writ of error shall be a
writ of right in all cases of felony,
and in all capital cases shall operate
as a supersedeas to stay the execu
tion of the sentence of death until
the further order of the supreme
court in the premises.
|f 21. The privilege of the debtor to
enjoy necessary comforts of life shall
be recognized by wholesome laws,
exempting a reasonable amount of
property from seizure or sale for
the payment of any debts or liabil
ity. |f 22. Aliens, who are, or may here
after become bona fide residents of
this state, shall enjoy the same rights
in respect to the possession, enjoy
ment and inheritance of property as
native born citizens.
|f 2 3. Every person ought to find a
certain remedy in the laws for all
injuries and wrongs which he may
receive in his person, property or
reputation; he ought to obtain, by
law, right and justice freely and
without being obliged to purchase it,
completely and without denial,
promptly and without delay.
|f24. A frequent recurrence to the
fundamental principles of civil gov
ernment is absolutely necessary to
preserve the blessings of liberty.
|f 2 5. The powers of the govern
ment of this state are divided into
three distinct departments, the legis
lative, executive and judicial; and no
person, or collection of persons, being
one of these departments, shall exer
cise any power properly belonging

to either of the others, except as
hereinafter expressly directed or per
mitted. |f 2 6. This enumeration of rights
shall not be construed to impair or
deny others retained by the people,
and all powers not herein delegated
remain with the people.
The CHAIRMAN. The Committee
will now consider the article section
by section. The Secretary will now
read the first section.
Mr. KIRKPATRICK. Mr. Chair
man, I move that the Secretary read
the preamble.
The CHAIRMAN. Rule 39 says
"it shall be read by the Secretary
and then again by clauses," leav
ing the preamble to be considered
last. The Secretary will read the
first section.
The Secretary read the section as
follows: |f 1. All men are by nature free
and independent, and have certain
inherent and inalienable rights —
among these are life, liberty and
the pursuit of happiness. To secure
these rights and the protection of
property, governments are instituted
among men, deriving their just
power from the consent of the gov
erned. Mr. HASCALL. I move to strike
out the word "men," where it occurs,
and insert the word "persons."
Mr. ROBINSON. I am opposed to
the amendment, I think the section
is right as it stands. It means to say
"all persons".
Mr. HASCALL. Mr. Chairman, If
"men" is a better word than "per
sons" I think the word ought to be
continued throughout the Bill of
Rights. I find in other portions, the
word "persons" used, but in the ma
terial part, where it is very proper

RIGHTS OF WOMEN

207

Thursday]

THOMAS— ESTABROOK— MASON

[June 29

we should take in all humanity, I
find the word "men". I believe in
calling a thing by their right names.
If you mean to take in all human
beings, let us use a more comprehen
sive term. It is true the legal gentle
man (Mr. Robinson) who raised the
point, probably considered it in con
nection with his legal business,
where perhaps he may have found
a precedent where a term like this
would include something else. For
instance, sometimes an indictment,
where matters of this kind are men
tioned, has to be made comprehen
sive enough to include another gen
der. Mr. ROBINSON. I shall have to
correct the gentleman. I refer the
gentleman to Webster's spelling
book. Mr. HASCALL. I judge he is the
gentleman who reads the spelling
book. Mr. THOMAS. Mr. Chairman, It
seems to me the section is right as it
stands. The word "man" does not
necessarily mean a male being; it
means "mankind". You find, in the
Declaration of Independence, the
same expression. "All men are born,
etc" It seems to me the expression
now, "all men, etc.," means "all
mankind," or "all persons". It seems
to me it is entirely unnecessary to
make this change. We find in the
Bible that "God created men in His
own image" no one believes that
means the male being; but mankind.
Mr. ESTABROOK. I appreciate
the motive of the amendment. From
the earliest history the word "men"
is mentioned in the Bible. It is
therein stated, on a certain occasion

the Almighty power created man and
then woman, male and. female creat
ed he them. Genesis 4th, 1st and 2nd,
so that concedes it a general term
and refers to both male and female.
Mr. MASON. If the gentleman
from Douglas on the other side (Mr.
Hascall) had attended the Sabbath
school with the gentleman on this
side (Mr. Estabrook), it might have
saved some discussion. I hope the
motion will not prevail.
The motion was not agreed to.
Mr. McCANN. I move the adoption
of the section.
Mr. ESTABROOK. Before that is
put I have an amendment. I move to
add at the end of the section, the
following words: "Every human be
ing, of full age, and resident for a
proper length of time on the soil of
the nation and State, who is required
to obey the law, is entitled to a voice
in its enactment, and every such per
son whose property is taxed for the
support of the government, is entitl
ed to a direct representation in such
government." Mr. HASCALL. Mr. Chairman, I
move to amend by striking out the
word " persons" and insert the word
"man" and in support of my own
proposition I refer the gentleman
from Douglas to Genesis.
Mr. TOWLE. I would ask the gen
tleman's permission to put the word
"male" instead of man.
Mr. HASCALL. I. think it wil]
satisfy the Convention, after con
sulting Webster's Dictionary, the
Book of Genesis, and the Chief Jus
tice, that it would be wrong to in
sert the word "persons" and I am
in favor of keeping these general

208

RIGHTS OF WOMEN

Thursday]

NEWSOM-STEVENSON— ESTABROOK

[JuDe 29

terms. I think it barbarous to say
"human beings."
Mr ESTABROOK. I presume it
was intended that should be done.
That is the tone of the language em
ployed in the first part of the first
section; and that is to reiterate a
similar passage in the declaration of
Independence. Whatever we have to
do is to be done in obedience to the
provisions given. It is a recitation
of the language there used and being
used as here used, it refers to all
mankind. Mr. NEWSOM. I would ask if
that amendment of the gentleman
from Douglas (Mr. Estabrook) is in
tended to cover woman's rights?
Mr. ESTABROOK. I take pleas
ure in making the announcement that
it is a step to accomplish that end;
that if woman is to be really taxed,
and has no representation, it is nec
essary to supply that important stone
in the arch.
The CHAIRMAN. The question is
upon the amendment to the amend
ment offered by the gentleman from
Douglas (Mr. Hascall).
Mr. STEVENSON. I think the
substitute or addition, would be prop
er to insert in the Article on Suf
frage. I think it does not beiong
here. That the section as it reads
applies to all he wishes, man mean
ing not only male but female; and if
we wish to extend the rights of
suffrage these gentlemen are talk
ing about, let the Committee on Suf
frage report an article, and not mix
it in here where it has no place, I
do not think the gentleman's substi
tute ought to be placed here. There
is enough here, and I think it should

be placed under the article on "Suf
frage." Mr. ESTABROOK. It is prepara
tory to the great idea that no one
should be taxed without representa
tion. It is an underlying principle of
law, the foundation of all Republi
can governments. And therefore,
this is its right place, I think.
Mr. NEWSOM. I believe, Mr.
Chairman, unless the gentleman who
made this motion insists upon the
motion, the only question before this
Convention is one of propriety, and
to that I propose briefly to draw the
attention of the Convention. If it is
the object of the gentleman, and I
think that is the chief nnd only one
indicated, to engraft woman suffrage
on this Bill of Rights, I think it em
inently improper. This is not the
place or time to raise that question,
in my humble judgment. All he re
quires is given him in the term
"men" this provision where it says
"all men are made equal." He has,
there, his point complete. Woman
is equal with the man in the section
as it stands. All the rights given to
man are given to her. Therefore,
in my judgment, it is improper to
raise this question here at this time.
It is not appropriate to engraft the
question of "Suffrage" in the Bill of
Rights. It is not incident .to the
rights granted in the Bill of Rights.
Mr. ESTABROOK. Mr. Chairman.
There is not a word said about wo
man in the amendment, not a word
about suffrage in it. It presents to
view a fundamental idea, and if wo
man shall be found to come within
its scope, then it means her; or if
man, it means man. It simply

WOMAN IN BILL OF RIGHTS

209

Thursday]

HASCALL— KIRKPATRICK

[June 29

means that if there are individuals
within the jurisdiction of this state
to be operated on by the provisions
of the article; who are compelled to
bear their share in the responsibility
of government without having the
corresponding privileges of the gov
ernment, or if they are to be taxed
and not have representation in the
government, then it means the wo
man. And if the gentleman will con
cede that she is in that category; if
the woman come to the threshold of
this step, giving her the power to
conduct her own business in her own
way, and giving her the power to
hold property in her own name sep
arate from her husband; to sue and
be sued in her own name; then let
her have a place where she can be
represented. And if she is compelled
to obey a government she has had no
hand in instituting and carrying on,
then it means woman, and is within
the scope of the amendment. If not
in that category I ask nothing more
for her. If it can be shown she has
representation to correspond with
her responsibility, I ask nothing more
at your hands. But if it shall be
found, after this has been amended,
that she is compelled to bear the
burdens of government the same as a
male, and obey laws, in the making
of which she has had no voice, then
I shall ask that the law be righted,
and the same right given her as to
the male. Hence it being an underly
ing principle preparatory to the great
idea that no one should be taxed
without re presentation, there is no
section so appropriate for this as this
section. Mr. HASCALL. Mr. Chairman,
14

this is not a question of suffrage at
this time. The question is whether
we will use the words "human being"
or the term "man". The gentleman
from Douglas (Mr. Estabrook) in
timated that this might be a captious
amendment to his amendment. He
quoted from Genesis, where it says
that "God created man, male and fe
male created he them." I have not
been to Sunday school so much as
the gentleman from Otoe (Mr. Ma
son) as was indicated a short time
ago. But they established to the
satisfaction of this Convention at
least, as will be indicated by the vote,
that the word "man" or "men" was
comprehensive enough. Now the
gentleman advocated that that term
was as comprehensive as the word
"persons" and when he introduced
an amendment he used the words
"human beings". Why put in this
barbarous term, when there is no
precedence for it to be found any
where. I hope the Committee will
not lose sight of the question before
the Convention; that is, whether the
amendment of my colleague shall be
amended by striking out the word
"man" and have irsertea tie word
"men." Afterwards the question
arises whether his amendment shall
be adopted or not. There is a differ
ent issue in the one case to what
there are in the other.
Mr. KIRKPATRICK. I think the
gentlemen will not disagree on terms.
I -think the phrase "all men" in
cludes all beings, but it is not inclu
ded in the expression "no person" as
it occurs in the Second section.
Mr. MASON. Mr. President. I

210

RIGHTS— NATURAL— POLITICAL

Thursday]

MASON

[June 29

shall not now pause to consider a
mere play upon words, but address
myself to the considerations which
are sought to be incorporated in this
section. Let us analyse this proposed
enunciation of the principles which
underlie our government, let us see
where the laying of our foundations
will leave us, and what building we
will construct upon the proposed
foundation. I read the amend
ment. "Every person being of full
age and resident for a proper length
of time on the soil of the nation and
state, who is required to obey the
laws, is entitled to a voice in its en
actment, and every person whose
property and labor is taxed for the
support of the government is entitled
to a direct representation in such
government." That is the gentleman means to say
the foreigner who has been an avow
ed enemy of this government shall
have the right to plant his banners
upon the soil of our country. He is
allowed a voice in the government
without having declared his willing
allegiance to the government. The
Chinaman who scoffs at your relig
ion; who bows down and worships
blocks of wood and stone; and who
defiles your temples of Christianity
with his blasphemy and who refuses
to declare that he is a liege subject
of your government — he is to be al
lowed to exercise the elective fran-
¦chise. A most dangerous experiment
indeed is sought to be interpolated
in the very first section of the Bill of
Rights. For what use is the experi
ence of the long generations of men
who have preceded us in the march
of time but to add lessons of wisdom

if we do not learn from these lessons
of experience, how to order our
government. Gentlemen, my views upon this
subject are not very well defined as
yet, for this is a startling proposi
tion, and this one suggestion that I
have presented to the committee, that
if it be incorporated in the Bill of
Rights, serious results will follow,
which will be a matter of alarm to
the people of this state. But there
are other objections.
Rights! Mr. President, that is
a word which is very often mis
apprehended and misunderstood,
There is such a thing in gov
ernments as "natural rights" — in
alienable rights, and there is such a
thing as "civil rights," and there is
such a thing as "political rights" — -
three distinct classes of rights to
which we are entitled in every gov
ernment. Now what rights are we consider
ing in this Bill of Rights. I may
quote here from Chief Justice Mar
shall — that the political rights of the
citizens are just such rights as are
vested in them by the fundamental
law of the State. The natural rights,
are such, that the fundamental law
cannot regulate or take from the
citizen — the right to life, liberty and
the right to exercise the reasonable
desires and powers of the mind.
These are the natural inherent rights
of man. There is a class of rights
purely political, which are conferred
upon us by the laws of our country.
I am sure if the gentleman from
Douglas (Mr. Estabrook) does not
see this matter in the light I do, he
would be as loath to insert this

RIGHTS— N AT URAL— POLITIC AL

211

Thursday]

[June 29

amendment as I am. If the gentle
man will put this where it belongs
among the political rights, and not
among the inherent rights of the peo
ple, it may be possibly I will agree
with him.
Now Mr. Chairman my reason for
not incorporating this theory here is
that we are considering natural
rights which no person can take
away, which no human authority can
ever deprive a man of. I am not
ready to say that human power can
not deprive a man of the right of
supplement [suffrage.] I am not
willing to say that a man debased
hy crime shall have the same rights
as a man who from the exercises of
the moral powers of his mind has an
¦elevated and adorned character. Now
I hold this and I hope that this Con
vention will feel it, that it is to be
left to a vote of all the people, who
shall exercise the right of franchise,
in the proper place and time, but I
am not willing to open up this wide
door here. Gentlemen of the Com
mittee I did not desire neither do I
now desire to detain you, but I wish
¦every gentleman to understand the
far reaching effects of the amend
ment. Are you willing that every
barbarian as soon as he shall land
here, shall exercise full political
power? I think that this move is a
dangerous one. It is dangerous to
our government. It is dangerous to
our free institutions, to our public
school system. I am opposed to this
amendment coming in here, not that
I am opposed to the enfranchisement
of the women of our land, but be
cause this amendment goes farther
beyond what I am willing to go and

opens up a mine that will destroy
our free government. I hope this
will not be insisted that this should
go into this Bill of Rights but when
we come to political rights I will be
willing to consider it there.
Mr. LAKE. Mr. Chairman, I wish
to say only a word on this motion to
amend. I believe that I agree sub
stantially with my colleague from
Douglas (Mr. Estabrook) in what he
is aiming at although I disagree with
him as to the propriety of attaching
it to this section. As it is I consider
that this section includes all persons
and refers to natural rights. Now I
disagree with the gentleman from Ne
maha that persons who -violate the
law have lost this natural right. He
has the right to those same things as
though he was a loyal citizen, but
governments find it necessary, in or
der that good citizens may be protect
ed in those natural rights, to deprive
him for the time being of a portion
or all of those natural rights. I be
lieve that because he commits crime
he is not naturally any less entitled
to those rights than before, but the
good citizens of the state may de
prive him temporarily of those rights.
This section says "all men are by
nature free and independent, and
have certain inherent and inalien
able rights. To secure this right and
the protection of property, govern
ments are instituted among men;"
and the government as I before stat
ed makes certain rules to secure
these natural rights, and as a conse
quence are obliged to take from per
sons guilty of evil practice, some of
their natural rights. "Governments

212

RIGHTS— NATURAL— POLITICAL

Thursday]

MYERS

[June 29

are instituted among men" and that
word includes both male and female,
it has been conceded here to day.
and it is further declared that these
governments derive "their just
powers from the consent of the gov
erned." Is not that complete and
conclusive. If they are not rights
exercised under the consent of the
governed, they are not just rights,
and it seems to me that the amend
ment would not make it any more
complete than it is now. While I am
in favor of the principle that the gen
tleman from Douglas lays down, and
shall support it at the proper time
and place, yet I think it would mar
this section. I am opposed to the
amendment, not because I am not in
favor of the rights of females, but
because I think it is out of place.
Mr. MYERS. Mr. Chairman, I
have but a few words to say in regard
to this proposition, I concur with my
colleague (Mr. Lake) that this does
mar .this section and if it is to be in
serted it will be better added at some
other place. I think that this section
covers and comprises all the natural
rights that belong to the governed.
This is simply a declaration of those
rights as proclaimed in the Constitu
tion of the United States, that among
the rights of men are " life, liberty
and the pursuit of happiness." We all
have natural inherent rights that the
government can not deprive us of;
that cannot be taken away from us,
but exercise of these rights, for the
good of the governed are regulated
by law, and it is doing injustice to
the government to say that it under
takes to destroy these rights. It
would be an injustice to say that the

governments are organized for the
purpose of abridging those natural
rights. A legislature is organized for
the purpose of throwing safeguards
around our national natural rights
not to destroy them. When it un
dertakes to abridge or destroy, it be
comes a tyranny; and when it does
that, we have a right, as laid down in
the Declaration of Independence, to
resort to rebellion and overturn it.
We admit in this country, that every
person has a right to vote, to form a
part of the government, to enjoy all
its rights and privileges as regulated
by law, and sir, I am not afraid of a
civilization of the east marching over
the broad prairies of our country and
overwhelming our churches, and
school houses, and our institutions of
liberty. I am not afraid sir, of the
millions and billions in the east leav
ing their home across the ocean and
coming here to enjoy those rights.
If they do it under the regulations
and under the laws we have estab
lished, if they come down to our or
der of life, to our order of civiliza
tion under the laws of the United
States which require them to take an
oath of allegiance to this govern
ment; I sir, will trust any human be
ing who comes to enjoy the liberties
of the government. I do not desire,
sir, to make a speech on this ques
tion, but simply rose to state that
all rights, — the rights of person and
property — are regulated by law, and
that the rights of citizenship are
regulated by law, and that is what we
propose in this Convention.
Mr. MASON. Mr. Chairman, I
only rise to correct a misapprehen
sion on the part of the gentleman

RIGHTS OF WOMEN

213

Thursday]

MASON— TOWLE

[June 29

from Douglas who first spoke (Mr.
Hascall). I admit this, as the section
now stands unamended, that the
State have the right to disfranchise;
but if the amendment of the gentle
man from Douglas (Mr. Estabrook)
is carried, it would deprive them of
the right so to do. If the gentleman
has the amendment before him he
will see that at once. Hence I con
clude that the gentleman from Doug
las did not desire to misrepresent me
in this regard and there is a mistake
in misapprehending my position. I
fully concur with the views of the
gentleman, and concur with the sec
ond gentleman on the floor; remind
ing him, however, that Solomon
spoke of a class of individuals, a
great number of years ago that knew
no fear, but rushed on to certain
ruin; whether he is of that class, I
am unable to say.
Mr. TOWLE. Mr. Chairman. In
regard to the amendment proposed
by the gentleman from Douglas (Mr.
Hascall) and again amended by an
other gentleman from Douglas (Mr.
Estabrook), although the amendment
to the amendment should prevail, the
principle would be there, and to the
principle Itself, or policy of the prin
ciple, I wish to speak a few words.
This question of woman suffrage has
been unexpectedly sprung at this
moment; I do not believe the Con
vention is ready now to meet it, but
they expected and intended and de
sired to meet this question when it
should come up in its proper and
appropriate place in the report of
the Committee on Rights and Suf
frage. There are many individuals
here desirous of being heard on that

subject, and I do not believe they
are now prepared; neither do I be
lieve the Convention at a time just
immediately preceding an adjourn
ment which will take place to-mor
row, should go over this ground. Let
us find out where we will be placed
if we put this proposition in this Con
stitution, in the Article on Bill of
Rights, , as we find attempted to be
done. We find ourselves lying on
the broad principle that no woman,
as well as any other class, under any
circumstances shall be deprived of
their right of suffrage if they have
been residing a certain length of time
in our State. Now, Mr. President,
in what way, manner and method
should this question of the right of
woman to vote be submitted to the
people of this State? Should it be
absolutely, in the body of the Consti
tution (and it is doubtful if the Con
stitution would not be rejected by
that course). If this question goes
absolutely in the Constitution; if it
is not submitted in a separate clause,
as it should be, there the symmetry
of this Constitution and this fabric
we are now building will be thrown
out of proportion. This, in connec
tion with other objections will raise
such an element of opposition, such
a furore of strength against it, that
it will fall to the ground by an over
whelming majority of the votes of
the people. I believe, on this very
question alone, it would fall. What
is the remedy? To leave this Con
stitution symmetrical and beautiful,
as we should build it from the very
foundation, leaving this question un
settled, and this proposition as it
now stands. If in the after progress

214

WOMEN AND ALIENS

Thursday]

EST ABROOK— TO WLE -MA SON

[June 29

of this work we should say that wo
man shall, or shall not be allowed the
right to vote, we can then adopt
this section. We come to the right
of suffrage and take it as the com
mittee has incorporated it, or as we
desire to engraft it in the Constitu
tion, if there are doubts — as I know
there will be, and I believe those
doubts will resolve themselves into
a certainty — that this Constitution
will not be adopted, it becomes our
imperative duty, if we wish to see
this Constitution adopted, to submit
this in a separate proposition, and
not allow it to go into the body of
the Constitution. I have nothing to
say at the present time in relation to
the abstract principle advanced in
this proposition. I am only speaking
as to the policy, and the question
whether it is expedient and proper
at this particular time, and in this
particular article, to insert this pro
position. In my judgment it is not;
therefore I shall vote against th«
proposition. Mr ESTABROOK. It is said every
family has a skeleton; in many fami
lies that skeleton is woman suffrage.
In this little item I claim woman
suffrage is not named; the funda
mental principle goes to the bed rock.
Mr. TOWLE. Did you not express
ly declare it covered that ground?
Mr. ESTABROOK. I declared she
was in the category of those men
tioned in the amendment. This Bil"
of Rights is intended to declare ab
stract principles, it has no binding
force whatever. For instance, I will
call the attention of the gentleman
from Otoe (Mr. Mason) and see if
he is frightened by the workmanship

of his hands. See whether — in view
of his own reasoning in regard te
the horrors that may be entailed on
this State by the influx of the Chinee
— whether he does not shudder when
he reads section 22, for instance:
"Aliens, who are, or may hereafter
become bona fide residents of this
state, shall enjoy the same rights in
respect to the possession, enjoyment
and inheritance of property as native
born citizens."
Mr. MASON. That is right.
Mr. ESTABROOK. They require
a right to build a place wherein they
shall maintain their idols, wherein
they may worship. I believe it is
right because it is in obedience to the
fundamental idea, that no man shall
be interfered with in the enjoyment
of his religion. He shall worship
howsoever whethersoever and when
soever he may. In regard to
the amendment proposed, let us see
if he is not paralyzed. The first sec
tion closes with these words: "his
natural rights." Jefferson laid them
down as natural rights. Who se
cures these rights? Every human
being of full age and resident for
a certain time in the State, which
means he shall be a citizen, — he
shall be upon the soil of the State
and nation long enough to acquire
the rights of citizenship, — every
such person who is required to obey
the law, who is governed, and con
strained to obey the government is
entitled to a voice in the enactment
of its laws. The very idea carried to
its consummation should be made ap
plicable to the subjects of the govern
ment which we are about to establish.
It goes on and extends the civil rights

RIGHTS— NATURAL— POLITICAL

215

Thursday]

WILSON— NEWSOM- HASCALL

[June 29

and natural rights of no class. Ev
ery such person thus having the nec
essary qualifications, thus having
been here the necessary length of
time, thus being of full age, whose
property or labor is taxed, upon
whom you impose the burden of gov
ernment, upon whom you impose the
responsibility of government, whose
labor is taxed for the support of the
government, is entitled to a direct
representation in such government.
Every person upon whom you impose
a burden shall have rights which
correspond to those burdens and re
sponsibilities. Is there a man so
frightened by the ghost of freedom,
of suffrage, who will not say "aye"
in regard to the propriety of it. I
tell you this is not symmetrical un
less you have carried this well known
fundamental thought to its practic
al consummation.
I propose, to secure that class of
individuals the rights and privileges
of which they are now deprived.
Motion to Rise
Mr. WILSON. Mr. Chairman, I
move that the Committee do now rise
report progress, and ask leave to sit
again. The house divided, and the motion
was lost.
Mr. NEWSOM. Mr. Chairman, I
desire to say a few words. The gen
tleman from Douglas (Mr. Esta
brook) thrust out the idea that the
woman suffrage question is a ghost
and resides in the houses of some
gentlemen of the Convention. I
would answer that the ghost is cer
tainly with him, because, for some
reason or other, he cannot distin

guish the difference between a politi
cal right and a natural right. The
question he proposes is not a natural
right, but it is a political right, the
right of suffrage. And whether it
shall go now into the Bill of Rights,
or go in the Article on suffrage, is a
question which I think should be de
cided by this Convention. He says
that every person who shall be re
quired to obey the law is entitled
to a, voice in the making of it. Is
that an inherent and a natural right,
or a political right? This question
has nothing to do with the natural
rights at all.
Mr. HASCALL. Although I do not
consider this subject proper at this
time, yet it has taken a wide range,
and I want certain errors corrected
that are sought to be inculcated here.
These rights have been described as,
natural, civil, and political. The
section lays down the broad doctrine
that all have the same natural rights,
and thus it says "to secure these
rights and the protection of property
governments are instituted among
men;" then, if this is true govern
ments are instituted to secure natural
rights; and then it says "governments
derive their just power from the con
sent of the governed." Now who
are the governed? Do not you mean
the whole community and body poli
tic? When you say "governments
are instituted among men, and de
rive their just powers from the con
sent of the governed," you speak of
political rights. They are both con
nected — civil and political — this sec
tion groups them. And still mem
bers come upon this floor and enun
ciate this great principle, or define

216

RIGHTS— NATURAL— POLITICAL

Thursday]

HASCALL— MASON

[June 29

rights to be natural, civil and politi
cal; and why? After they do it that
proves nothing, for the section re
ported by the chairman of the Bill of
Rights inseparably connects them.
The great seal of the State of Ne
braska contains the motto "Equality
before the Law." What does that
mean? It is speaking of the politi
cal right. They are equal before the
law. Then that being the case, up
on what foundation stands these ar
guments with regard to Chinamen
and colored men and other classes?
As I understand the chairman of the
Committee on Bill of Rights, he
says that when certain persons are
in the ascendancy then he is willing
to come on and disfranchise them.
Does he mean a minority shall rule
a majority? Does he say when cer
tain persons get the ascendency, as
far as government is concerned, that
he, as a member of the community,
will come in and fasten institutions
that are repugnant upon the majori
ty? That would not be a Republican
form of government, but it would
be bordering on that form of govern
ment the gentleman referred to with
so much emphasis, viz: — a monareh-
ial form of government. I see it is
the desire of some to ignore the
amendment I proposed to the
amendment introduced by my col
league General. Estabrook. They do
not seem to talk in relation to that.
But it is not technical; but is a
matter of substance. This section is
broad enough if the word "persons"
had been used in the first instance;
and would have disposed with all
cavil. When the question of suffrage

arises, I shall place myself right upon
that question. But as far as this gen
eral enunciation is concerned in the
Bill of Rights, if you use the word
"persons", I am satisfied it is a fail
ure. But, although I may vote for
my amendment to the amendment,
still I shall be compelled to vote
against the amendment of the gentle
man, for the reason that this sub
ject may properly come in another
part of the Constitution.
Mr. MASON. Mr. Chairman, I
have listened attentively to the re
marks of the mover of the motion,
with an earnest desire to appreciate
and comprehend his views; and I
still think the difference between us
arises more from a misapprehension,
either on his part, or on mine, of
of what the Convention and the Com
mittee propose to enunciate in the
first section. The Committee propose
simply to enunciate the natural
rights and not civil rights. Suppose
we consider it attentively for
a single moment. "All men are
by nature," and we might insert
"and have by nature certain
inherent and inalienable rights,
among these are life, liberty and the
pursuit of happiness. To attain these
natural rights, or secure these natur
al rights, amongst which are the pro
tection of property, governments are
organized among men." Now, the
the right of elective franchise never
has been considered among any
classified by Beveir, by his law dic
tionary; or by Webster, among the
natural rights. Neither does it so
classify it by any law right. It is
simply a political right. If we ignore
or deprive political rights from the

RIGHTS— NATURAL— POLITICAL

217

Thursday]

MASON -LAKE

[June 29

Bill of Rights, it is making an entire
new use of the Bill of Rights. The
whole body of the organic law defines
the political rights of your citizens;
the political rights of the government,
the political rights of the Legisla
ture, the political rights of the judi
ciary, the political rights of the citi
zen, but your Bill of Rights, standing
in the forefront in the battle of hu
manity, asserts the natural God-born
God-inherited and inextinguishable
rights. Now, I think if America ever
had a great man, if she ever had a
pure man, and the man that compre
hended the whole nature and purpose
of government from its conception to
the end from keel to turret, iV was
Webster. And when he defined the
natural rights of man, they were cov
ered in this single sentence. And the
restless ingenuity of to day, or the
passion of to-morrow, can neither
take from nor add thereto. And
hence it is, I desire this Convention
should fall into no misapprehension.
The Bill of Rights asserts only the
natural rights, and the balance of
the Constitution is devoted to the as
sertion of political rights, political
duties, and political privileges and
immunities, and I think the Commit
tee now understand that the subordi
nate Committee raised by this Con
vention took all this matter into con
sideration; and the view I think
they desired the chairman should
urge upon this Convention. And for
these reasons, I submit it to the Con
vention, hoping the proposed amend
ment will be rejected.
The CHAIRMAN. Gentlemen, the
question is now upon the amendment
to the amendment.

The amendment to the amendment
was not agreed to.
The question now recurs upon the
amendment. The amendment was not agreed to.
Mr. MASON. Mr. Chairman, I
move the section be adopted.
Motion agreed to.
Mr. LAKE. Before that motion is
put, Mr. Chairman, I wish to call
attention to a typographical error
which I noticed in the printed copy
we have before us, which reads "just
power." I think it should read "just
powers." I suppose it will be correct
ed by common consent, and that no
motion will be required.
The CHAIRMAN. The correction
will be made.
The question now, gentlemen, is
upon the adoption of the section.
The motion to adopt was agreed
to. Mr. CASSELL. Mr. Chairman, I
move the Committee rise, report pro
gress, and ask leave to sit again.
The motion was agreed to.
Adjournment.
Mr. HINMAN. Mr. President, 1
move to adjourn until 2 o'clock this
afternoon. The motion was agreed to.
So the Convention (at twelve
o'clock and eighteen minutes) ad
journed.

Afternoon Session.
The Convention met at two o'clock
p. m. and was called to order by
the President. Communications.
The PRESIDENT. Before we pro-

218

STATE LANDS— PRINTING

Thursday]

GILLESPIE— WILKINSON— LYON

[June 29-

ceed to any other business here are
two communications; the Secretary
will read.
The Secretary read a communica
tion from the Auditor as follows:
State of Nebraska,
Auditor's Office,
Lincoln, June 29, 1871
Hon. S. A. STRICKLAND,
President Constitutional Conven
tion. Sir: In reply to a resolution of your
honorable body, I have the honor to
state that to this date no bills for
printing for the Convention have
been presented at this office.
Respectfully yours,
JOHN GILLESPIE, Auditor.
J. O. WEST,
Deputy.
The Secretary read a communica
tion from the Register of the Land
office at Dacota City, as follows:
Land office, Dacota City, Neb.,
June 26, 1871.
Hon. S. A. STRICKLAND,
President Constitutional Conven
tion, Lincoln, Nebraska.
Dear Sir:
I herewith have the honor to trans
mit to you a list of entered lands,
which seems to be referred to in the
resolution of your honorable body,
a full history of the matter of the
lands embraced in the list left with
me by the state agent, was by last
mail forwarded to his Excellency
Governor James.
Permit me to state briefly this
much. There has never been an ap
proved list of selections for Agricul
tural College purposes presented at
this office, nor any formal applica
tion to enter lands for that purpose
I have the honor of being,
Very Respectfully,
Your obedient servant,
GEO. W. WILKINSON, Register

The reading of the list of lands
referred to in the above communi
cation, was on motion dispensed with.
Mr. McCANN. I move that the
reading be dispensed with and this
communication be referred to the
Committee on Education, School
Funds and Lands.
The motion was agreed to.
Bill of Rights.
Mr. McCANN. I move that we do
now go into Committee of the Whole
on the Bill of Rights.
The motion was agreed to.
So the Convention resolved itself
into Committee of the Whole on the
Bill of Rights. Mr. Griggs in the
chair. The CHAIRMAN. The Secretary
will now read section second.
The Secretary read section second
as follows:
|f 2. No person shall be deprived
of life, liberty or property without
due process of law.
Mr. LYON. Mr. Chairman, I move
that that section be adopted.
The second section was adopted.
The Secretary read the third sec
tion as follows:
|f 3. The free exercise and enjoy
ment of religious profession and wor
ship, without discrimination, shall
forever be guaranteed; and no person
shall be denied any civil or political
right, privilege or capacity on ac
count of his religious opinions; but
the liberty of conscience hereby se
cured shall not be construed to dis
pense with oaths or affirmations, ex
cuse acts of licentiousness, or justify
practices inconsistent with the peace
or safety of the state. No person
shall be required to attend or sup
port any ministry or place of worship,
nor shall any preference be given by

RELIGIOUS FREEDOM

219

Thursday]

ABBOTT-LAKE -WOOLWORTH

[June 29

law to any religious denomination
or mode of worship.
Mr. ABBOTT. Mr. Chairman, I
desire to amend the third section
by striking out all after the. word
"guaranteed" in the second line to
and including the word "state," in
the sixth line, and insert in lieu
thereof the following: "but the civil
rights, privileges, or capacities of any
person shall in no wise be increased
or diminished on account of any re
ligious opinion or belief."
Mr. ABBOTT. This amendment
governs all in general terms, not
making a specialty of this or any
other subject. It rules the subject
matter in general terms and is good
for all time to come.
The motion was not agreed to.
Mr. MAJORS. I move that the
section be adopted as it stands.
The motion was agreed to.
The CHAIRMAN. The Secretary
will read section four.
The Secretary read the section as
follows: |f 4. Every person may freely
speak, write and publish on all sub
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth, when published with good
motives and for justifiable ends, shall
be a sufficient defense.
Mr. LAKE. Mr. Chairman, I move
the adoption of the section.
Mr. WAKELEY. There is a typo
graphical error in this section. In
the third line the word "for" should
be inserted before the word "justi
fiable ends." I move to insert that
word. I suppose it is in the manu
script bill in the possession of the
Secretary. ,
Mr. WOOLWORTH. I would like

to enquire what paper the clerk reads
from. The CHAIRMAN. From the print
ed bill.
Mr. WOOLWORTH. Would it not
be altogether better to read from the
manuscript rather than from the
printed bill. We will then under
stand exactly what We are about.
Mr. LAKE. It is usual to read
from the printed bills, in order that
amendments may be inserted. Those
amendments are noted by the chair
man of the committee on the printed
bill which he has before him, and
this saves the original from being
mutilated. Mr. MYERS. Mr. Chairman,
The practice I believe in all legis
lative bodies is to read from the
printed bill. I never yet have known
where the original was read either by
the clerk or chairman. If there are
typographical errors it is the duty of
the committee to correct them. It
is more convenient and proper to
read from the printed matter because
it is here by authority of the Con
vention. Mr. WOOLWORTH. I would like
to enquire how it is possible to make
a comparison between the printed
bill, unless we have some way of com
paring it with the original. If the
clerk reads the original and the
chairman and members hold the
printed copy, any typographical mis
take would instantly be brought to
his attention, otherwise it might be
overlooked. The CHAIRMAN. If there is no
objection the Secretary will insert
the word "for" before "justifiable."
No objection being raised the word

220

TRIAL BY JURY

Thursday]

HASCALL— WAKELEY— THOMAS

[June 29

was inserted.
The CHAIRMAN. The Secretary
will read section five.
The Secretary read the section as
follows: |f 5. The right of trial by jury
as heretofore enjoyed, shall remain
inviolate; but the trial of civil cases
before justices of the peace by a
jury of less than twelve men, may be
authorized by law.
Mr. HASCALL. Mr. Chairman, I
have an amendment to offer to this
section. I propose to amend by add
ing after the word "civil" in second
line the words "and criminal," and
after the word "peace" in the same
line, the words "and police magis
trates." Mr. WAKELEY. Mr. Chairman, I
shall be glad to hear from the mover
of this amendment, what particular
benefit he proposes to secure by its
adoption. If the amendment be in
serted, it ought to be qualified by
some clause indicating how far the
amendment recognizes the justices of
the peace.
Mr. HASCALL. The point, Mr.
Chairman, I wish to reach by the pro
posed amendment is to give the right
to justices of the peace to try crimi
nal cases without summoning into
court twelve men to try the issue, al
so to dispense with juries of twelve
men or the necessity of a jury of
twelve men in police magistrates
courts, or before the police judge. It
is a useless expense, it is unnecessary
to have a jury of twelve men in a
magistrate's or justice of the peace
court to try a petty case over which
they have jurisdiction. I do not im
agine that under the amendment they
would get any jurisdiction to try a

case of felony, but would relate only
to trying cases of misdemeanor.
Justices of the peace have now the
right to try and determine cases of
misdemeanor and punish without in
dictment or presentment by a grand
jury. If there is no doubt about the
propriety of this amendment a pro
vision might be inserted in cases of
misdemeanor. I introduce that
merely to insert the idea, and if the
amendment does not meet the views
of members, as far as phraseology is
concerned, I would suggest that the
chairman of the committee make
that right.
Mr. THOMAS. I am in favor of an
amendment to this section. I think
it should not be made necessary to
have a jury of twelve before a jus
tice of the peace. But we do not pro
pose, in this Constitution to give the
justice of the peace jurisdiction.
They have agreed to leave that to
the Legislature and I would suggest
to the gentleman who made the
amendment, to make it "in trials not
of record by a jury of less than
twelve men, may be authorized by
law." It seems to me we should not
make it necessary in all cases before
a justice of the peace, or a police
magistrate, to have a jury of twelve.
In some precincts it is difficult to
get a jury; and if we insert that no
criminal case whatever can be tried
before a justice of the peace or police
magistrate without a jury of not less
than twelve men. I would amend
by saying "in trial not of record by
a jury of less than twelve."
Mr. STEVENSON. I would sug
gest to the gentleman from Nemaha

NUMBER OF JURORS

221

Thursday]

STEVENSON— HASCALL— WAKELEY

[June 29

(Mr. Thomas) that there should be
something inserted in relation to
county courts. I believe they are to
be considered as courts of record.
It would appear necessary in order
to accept this, to bring it in county
courts. Mr. HASCALL. Mr. Chairman, I
do not know that it is proposed to
confer upon this county court crimi
nal jurisdiction. If so, it would be
well enough to make that exception.
The CHAIRMAN. Gentlemen. The
gentleman from Douglas (Mr. Has
call) has moved to amend by insert
ing after the word "civil," the words
"and the criminal," and after justice
of the peace," insert "police magis
trate." The gentleman from Nema
ha (Mr. Thomas) suggests, and it is
accepted, that it read "but in trials
in a court not of record, by a jury of
less than twelve men, may be author
ized by law." So that the section,
as amended will read:
Sec. 5. The right of trial by jury
as heretofore enjoyed, shall remain
inviolate, but in trials in a court not
of record, by a jury of less than
twelve men, may be authorized by
law. Mr. WAKELEY. Mr. Chairman. I
don't like the proposed amend
ment. This matter was well consid
ered I think, by the Committee who
had charge of this bill, of which the
gentleman from Nemaha (Mr. Thom
as) was a member; and I think the
broad powers which would be con
ferred by that amendment did not
prevail with the Committee, and does
not commend itself to my judgment.
It is in the power of the Legislature,
in all cases, to define what shall be
courts of record, and courts not of

record. Very large jurisdiction may
he conferred by the Legislature upon
courts not courts of record. County
courts may be established, which the
Legislature might provide should not
be courts of record. And thus the
immemorial right of trial by a jury
of twelve men might be affected and
impaired. I do not know that I ob
ject seriously to the proposition of
my colleague (Mr. Hascall), that
misdemeanors, when triable at all,
before the justice of the peace or in
ferior magistrates may be by a jury
of less than twelve men. I have pre
pared an amendment which carries
out that idea, which I will state to
the Convention before the vote is
taken. I will move to amend, when
proper, to insert after the words "jus
tice of the peace," "or of misdemean
ors before the justice of the peace or
inferior magistrate or tribunals."
The effect of that amendment would
be that under the section, as amend
ed, all civil cases might be tried be
fore the justices of the peace, if the
Legislature shall so provide by a
jury of less than twelve, and misde
meanors tried by justices of the peace
or inferior magistrates
Mr. THOMAS. Mr. Chairman, The
gentleman from Douglas (Mr. Wake
ley) has expressed the same opinion
I entertain about this matter. I am
not particular about the form of
words used, nor ami particular about
the amendment I offered.
Mr. HASCALL. The phraseology
of the last proposition is very bad,
but I think it carries out the idea.
Mr. LAKE. I would suggest that
the amendment be "trial of civil
cases, cases of misdemeanor before

222

NUMBER OF JURORS

Thursday]

ESTABROOK -THOMAS— LAKE

[June 29

the justices of the peace and infer
ior magistrates by a jury of less than
twelve men, may be authorized by
law." Mr. WAKELEY. If my colleague
will put that amendment in writing
I think it will accomplish the same
purpose. Mr. LAKE. I will do so.
Mr. ESTABROOK. Well, while
the gentleman is writing his amend
ment I will speak. I presume that
lawyers, so well versed in cases of
the law, are not acting in this matter
without being fully aware of the
barriers to the proposed amend
ment. To criminal cases it is a mat
ter of considerable doubt. In all
criminal prosecutions the accused
shall enjoy the right to a speedy and
public trial by an impartial jury.
Now suppose the individual is charg
ed with a criminal misdemeanor and
shall demand that he be tried by a
jury —
Mr. THOMAS. I would like to ask
the gentleman what he reads from?
Mr. ESTABROOK. The Constitu
tion of the United States, Article 5,
"Bill of Rights."
Mr. LAKE. I would like to ask
the gentleman if the Constitution
don't provide that the accused shall
be indicted by a fair and impartial
jury. Mr. ESTABROOK. Yes sir.
Mr. LAKE. I would like to have
the gentleman read the provisions in
the Constitution, for trial by Grand
Jury. Mr. ESTABROOK. I read from
Article 5th of the Bill of Rights:
"No person shall be held to answer
for a capital, or otherwise infamous

crime, unless on a presentment or
indictment by a grand jury, except
in cases arising in the land or naval
forces, or in the militia, wherein
actual service, in time of war or
public danger," etc.
Now I under take to say that in
no place can a person be held for a
criminal offense without being in
dicted; and will anybody contend
here that we can adopt laws that will
run counter to the laws of the United
States? Mr. THOMAS. Mr. Chairman, I
will say that the article that the gen
tleman reads has to do with the
United States courts, but has nothing
to do with the State courts.
The CHAIRMAN. The amend
ment as offered by the gentleman
from Douglas (Mr. Lake) is as fol
lows: The right of trial by jury as here
tofore enjoyed, shall remain invio
late; but the trial of civil cases be
fore justices of the peace and police
magistrates by a jury of less than
twelve men, may be authorized by
law. Mr. HASCALL. The Constitution
of the United States provides that a
person shall be tried for a criminal
offense only after having been in
dicted by a grand jury. If the gen
tleman from Douglas (Mr. Esta
brook) considers that this provision
applies to the State courts, how is
it that the state of Michigan can
abolish the grand jury system, as
she has done?
Mr. MANDERSON. Mr. Chairman,
I will call the gentleman's attention
to a provision in the Constitution of
the state of Michigan. The Consti
tution of 1850 abolished the grand

JURIES— BAIL— SEARCH WARRANTS

223

Thursday]

MASON— WAKELEY— LAKE

[June 29

jury system, as to trial by petit jury,
the Constitution of 1835 reads, "the
right of trial by jury shall remain
inviolate, but shall be deemed waiv
ed in civil cases, unless demanded
in the way prescribed by law." We
have the precedent in Michigan, of
the entire abolition of the grand jury
system, as to the question as to the
rights to make this change from the
Constitution of the United States. I
may state, for the information of the
gentleman that the matter was fully
discussed among the members of the
Committee on Judiciary, and we
found cited numerous cases where it
was decided that this provision ap
plied to the Federal courts only, and
not to state courts.
Mr. MASON. Mr. Chairman, I de
sire to offer a substitute — "but the
trial of misdemeanors and civil cases
may be authorized by law before jus
tices of the peace, police magistrates
and inferior tribunals, etc." The sec
tion would then read — "The right of
trial by jury as heretofore enjoyed,
shall remain inviolate; but the trial
of misdemeanors and civil cases may
be authorized by law before justices
of the peace, police magistrates and
inferior tribunals by a jury of less
than twelve men."
The CHAIRMAN. Gentlemen, the
question is upon the adoption of the
substitute. Mr. WAKELEY. Mr. Chairman, I
don't quite like the language, but I
like the idea of the amendment of
the gentleman from Otoe (Mr.
Mason) I think I like the language
of the amendment offered by my coU
league (Mr. Lake) better. However,
that is a mere matter of taste.

Mr. MASON. Mr. Chairman, I
withdraw my amendment.
The CHAIRMAN. Gentlemen, the
question is upon the amendment of
fered by the gentleman from Douglas
(Mr. Lake.)
The Convention divided and the
amendment was adopted.
The CHAIRMAN. Gentlemen, the
question is upon the adoption of the
Section 5 as amended.
The motion to adopt was agreed to.
Section Five, as adopted reads as
follows: The right of trial by jury as here
tofore enjoyed, shall remain inviol
ate; but the trial of civil cases and
misdemeanors before justices of the
peace and police magistrates by a
jury of less than twelve men, may be
authorized by law.
The Secretary read section sixth
as follows:
|f G. The right of the people to be
secure in their persons, houses, pa
pers and effects against unreasonable
searches and seizures, shall not be
violated, and no warrant shall issue
without probable cause, supported by
affidavit, particularly describing the
place to be searched and the persons
or things to be seized.
Mr. LAKE. Mr. Chairman, I move
its adoption.
The sixth section was adopted.
The Secretary read section seventh
as follows:
|f 7. All persons shall be bailable by
sufficient securities, except for trea
son and murder, where the proof is
evident or the presumption great;
and the privilege of the writ of hab
eas corpus shall not be suspended,
unless when in case of rebellion or
invasion, the public safety may re
quire it.
Mr. McCANN. I move that the
word "securities," in the first line.

224

ABOLITION OF GRAND J DRY

Thursday]

MANDERSON— PHILPOTT- WAKELEY

[June 29

be stricken out, and the word "sure
ties" be inserted.
The motion was agreed to.
Mr. MANDERSON. Mr. Chair
man, I move that the section be
adopted. The seventh section was adopted.
The Secretary read the eighth sec
tion as follows:
|f 8. No person shall be held to
answer for a criminal offence, unless
on an indictment of a grand jury,
except in cases in which the punish
ment is by fine, or imprisonment
otherwise than in the penitentiary,
in cases of impeachment, and in cases
arising in the army and navy, or in
the militia when in actual service in
time of war or public danger.
Mr. PHILPOTT. I move to
amend that section by adding, "Pro
vided, that the grand jury system
may be abolished by law in all cases."
I will say, Mr. Chairman, that my
object in offering this amendment is
this; that I think it ought to be left
to the Legislature to abolish the
grand jury system if they see fit.
There was a time when we needed
it, but at the present time it is, need
less and a great deal of expense on
the state.
Mr. MAXWELL. Mr. Chairman,
I am not in favor of abolishing the
grand jury system.
Mr. WAKELEY. Mr. Chairman,
I am not willing to have the vote
taken upon the proposition of the
gentleman from Lancaster (Mr. Phil
pott) without some suggestion from
those who are not yet prepared to
yield acquiescence to the modern doc
trine that grand juries ought to be
abolished. It has not been my for
tune, or misfortune, to live in a state
where this experiment has been tried.

I know it has been said by lawyers
and by people elsewhere or here that
grand juries are a relic of a barbar
ous age, adopted to meet a need of
civil society which no longer exists.
I have lived where no man could
be put upon trial for a criminal of
fense except on indictment found by
a jury of his peers. The only ques
tion is whether an accusation can be
made by some third party better than
by a grand jury. If this power is to
be vested in some other body there
must be a responsible prosecutor to
represent a man before a jury of his
peers for trial upon a public charge.
Shall it be the prosecuting attorney
of the district and county? Now sir,
without being able to speak from ex
perience at all I confess that my
mind strongly clings to the idea
that this system is a wholesome sys
tem. I know it is said that a secret
inquisition sitting upon the conduct
of men is contrary to the genius of
our free institutions, and I know that
men are often presented for trial by
a grand jury who are not guilty, but
sir, when twelve men have said, on
the uncontradicted 'evidence before
them, that they believe that a man
has committed crime, there is some
reason for a trial. I do not" believe
it will often happen that a man will
be prosecuted from malice or from
unreasonable cause. Upon the other
hand I can imagine cases where
crime is rife in the community; where
men have banded together for crimi
nal purposes, and have become
stronger than any single arm; where
public prosecuters, I care not how
firm they may be, I care not how res
olute they may be to do their duty;

ABOLITION OF GRAND JURY

225

Thursday]

WAKELEY

[June 29

would shrink and quail before the
conspiracy and combination to de
feat them all. Sir. I have seen such
cases, I have lived in communities,
and there is no man here, especially
in this region west of the Missouri
river, who cannot recall eastern cities
where crime has overspread the au
thorities; where men have defied
the laws; where men have taken
the awful responsibility of life and
death into their own hands; have
overthrown the law; have usurped
the functions of court, juries and ex
ecutors of law. In such a communi
ty as that, is it reasonable to expect
that a single prosecutor, with no
rhore interest in the preservation of
order and the protection of life, per
son, and property than any other
citizen, would brave such a combi
nation, and bring such men to the bar
of the courts for trial? No sir! In
such times as that, I insist that there
is safety in this traditional institu
tion of a grand jury. I am unwilling
to clothe the Legislature of this
State with power to abolish that in
stitution. I hear no serious objection
to the system except that it is expen
sive, or this phrase, that it is contrary
to the spirit of the age, and of our in
stitutions. I believe that where one
innocent man is put upon his trial
under the grand jury system, without
reasonable cause, I believe, that if we
abolish that, 19 men, who ought to be
put upon their trial, would go with
out justice. You cannot buy nor terrify
23 men who constitute a grand jury,
but influences may be, and will be,
as they always have been, brought to
bear upon individual men, which
would have no effect upon a respon-
15

sible body like the grand jury. Now,
sir, in this unstudied way I have pre
sented some reasons which lead me
to think this law should pass before
we authorize this innovation. I think,
sir, if we give the Legislature any
power over this subject, we ought
not to clothe them with the power to
abolish the grand jury system, we
ought, in my judgment, to go farther
than this, to leave it with the Legis
lature to provide, if experience shall
justify the wisdom of so doing, that
men may be put upon their trial for
certain defined offences, without the
intervention of a grand jury. I have
been told, Mr. Chairman, by legal
gentlemen from the State of Michi
gan, that under the existing system
in that State, grand juries have no:
been abolished, that the institution
theoretically remains, but that it is
discretionary with the courts wheth
er or not they have a grand jury
called and empanelled. I do not
speak from any knowledge of the
system in that state, but such is my
information. If we see that the
Legislature of this State may
abolish the system of grand juries,
when they shall have exercised that
power, they will have exercised it
finally and beyond recall. If we give
them power to abolish and they ex
ercise it, they will have no authority,
as I understand it, to restore the sys
tem if experience should warrant the
change. Now, sir, if a majority of
this Convention think that the Legis
lature should be left free to venture
upon this experiment, I would have
it so provided that any mistake in
the exercise of power might be cor
rected; in other words I would have.

226

ABOLITION OF GRAND JURIES

Thursday]

PHILPOTT— McCANN

[June 29

this institution of grand juries re
main. I would not give the Legisla
ture power to abolish it; I would
not go further than to allow them to
try the experiment of dispensing with
grand juries in certain cases; making
provision for selecting grand jurors
as usual and giving the courts of
the State power to convene and em-
pannel grand juries whenever the
necessities, the exigencies or conven
ience of the public may require it to
be done. I think I have no unreason
able prejudice or preposession in
favor of grand juries, but I know
that for 2 00 years grand juries have
been looked upon as valuable auxil
iaries in the administration of justice
in the land from which our govern
ment was derived, as well as under
our Federal form of government, and
in nearly all the States of this Union.
I ask gentlemen to consider that
every innovation is not necessarily an
improvement, I ask them to go slow
in overturning the ancient land
marks of our criminal jurisprudence.
Mr. PHILPOTT. Mr. Chairman,
The object of this amendment is not
to abolish the system but leave it in
the hands of the Legislature, so that
they may abolish it if they think it
necessary. For my part, I should
like the gentleman (Mr. Wakeley)
to make an amendment to the effect
he has stated. I would be willing to
accept such an amendment. I should
like to see that experiment tried in
this state. I would like, at least,
that this Constitution may be so
formed, that they have an opportu
nity to try the experiment.
Mr. McCANN. Mr. Chairman, Al
though not a member of the bar, and

perhaps not expected to speak on
this subject, I do sincerely trust that
the gentleman from Douglas (Mr.
Wakeley) will adhere to the position
I understand him to assume. I hope
no amendment will be made and no
discussion will be left to the Legis
lature of this State to abolish grand
juries. I admit, sir, that the grand
jury system is expensive, I admit,
at least I know, that it is often
abused; but still, I believe, we cannot
afford to dispense with it. I believe
it is far better that we should expend
thousands of dollars, and far better
that we should submit to some
abuses, rather than abolish this
great land mark and that we should
dispense entirely, or leave it in the
power, at the discretion of the Legis
lature of the State to abolish this
system, and thereby work a greater
injury than can be experienced by
submitting to this expense, and the
abuses which may at any time ex
ist. I believe the interests of the State
for the present and the future will be
subserved by allowing this Article to
remain just as it is. I hope no
change will be made; I believe it
was wisely formed and its workings
will be for good.
Mr. PHILPOTT. Mr. Chairman, I
withdraw my amendment.
Mr. THOMAS. Mr. Chairman, I
desire to renew the amendment
which has been withdrawn. I move
to amend by adding the words "pro
vided, that the grand jury system
may be abolished by law in all cases".
It seems to me that it is highly prop
er that we should leave this matter
to the Legislature. There was once
a reason why the grand jury system

ABOLITION OF GRAND JURIES

227

Thursday]

THOMAS— MYERS

[June 29

should be insisted on, when it was
in the power of any individual to
prevent prosecution. I cannot see
the necessity of a grand jury system
as it is now, is it not useless, and is
it necessary? Can any- man say it is
necessary that in all cases the grand
jury should act? I admit there may
be times when it is needed. Would
not the Legislature provide for the
institution of a grand jury? I do not
understand that we provide for the
abolition, by any means. I do not
understand that it has been abolished
in those States where it does not ex
ist. I understand in Kansas, al
though there is no provision in their
Constitution which requires indict
ment by grand jury in every case
the judge is permitted, if he sees
proper, to call a grand jury. Is it
not better to leave this matter to the
Legislature? It seems to me they
will deal differently with this sub
ject than they did ten years ago. I
am in favor of leaving it to the Leg
islature. I am satisfied that crimes
will not go unpunished, but if it ap
pears that in any part of the country,
or in any cases, that bands of men
are bound together so as to prevent
prosecution, the . Legislature .would
make some provision to enable the
courts to see they are properly pro
secuted. I do not understand that
if the grand jury system is once abol
ished it can be instituted again. If
that is desired I am in favor of some
amendment to try the experiment,
and if it does not work then to re
instate the grand jury system. I
would like to see the amendment
adopted. Mr. MYERS. Mr. Chairman, I

happened to live the greater part of
my life in a state where the grand
jury system has existed for over 250
years. In the great state of Penn
sylvania this feature in our admin
istration of justice was incorporated
into her law the moment she attained
the state existence; and it has con
tinued there, uninterruptedly, up to
this day, without any complaints or
effort to interfere with its operation.
Although they have had but two con
stitutional conventions for a period
of seventy odd years; and now have
the power of altering their Constitu
tion once in five years, no attempt
has been made to disturb that branch
of administration of Justice; and in
no other state has there been a great
er observance of the laws. No riots,
no lynch law; but all, as far as I
know, has been in strict observance
of the law. I never heard objections
brought to the grand jury system in
that State; and I was surprised to
find so much objection existed in the
western part of our country. Is it
not a saving of expense? The court
is itself saved the annoyance of con
sidering cases unworthy of notice.
And in cases where individuals are
attempted to be dragged before
courts of justice, there is a tribunal
which fully investigates the char
acter of the charge, and if there is
not sufficient cause it is discharged.
I believe it would be unwise to confer
upon the Legislature the power of
abolishing or reinstating. Let it be
still a part of our permanent system
of Justice. I believe it to be an argu
ment against lynch law that persons
shall have a trial and examination
into their cases by a jury; and that

228

ABOLITION OF GRAND JURIES

Thursday]

THOMAS— ESTABROOK

[June 29

shall answer all practical purposes.
I hope the Convention will let it re
main as it now is.
Mr. THOMAS. I wish to modify
the amendment I offered, so as to
provide that the legislature may
provide for the trial of any or all
criminal cases without the interven
tion of a grand jury.
Mr. ESTABROOK. That, Mr.
Chairman, it seems to me, would en
able us to try the experiment, if it be
an experiment, without abolishing
the grand jury. This Legislature can
exclude and leave the law as it other
wise would be without this. If it
be so that you can now possibly do
without it, hit upon some scheme
that shall have reason and sense in
it to take the bands from our heads
that have been there for the past
two hundred years, I am in favor of
doing it. You now go to the expense
of summoning and drawing sixteen
men in our own courts, who attend;
and a large portion are excused, so
that before you get through you have
twenty-five men, who are paid per
diem and mileage. And what occurs
in the grand jury room, and who, as
a general rule, pretty much controls
the grand jury? The prosecuting
attorney, and when he desires an
indictment should be found they find
it. That is the general rule. Some
cases are excepted. If we follow the
rule as in Pennsylvania, invariably
I think, it is a rule, so well fixed there
fhat the case before it goes into the
grand jury room shall be heard by
a committing magistrate. I think
there is hardly a case in Pennsyl
vania and any of the older states,
that, before it goes into the grand
jury room is not brought under the

review or a committing magistrate.
Judge Black, of Pennsylvania, a for
mer judge in and Governor of Ne
braska, used to instruct the juries
here in accordance with the rules
of practice in Pennsylvania, that that
was the right plan. I have known, in
the practice I have had with grand
juries, that there are very numerous
instances where individuals seek the
grand jury rooms for the purpose of
making them an engine to carry out
their own scheme for prosecution
against some hated enemy or rival
and if they secure an adjournment
they go away and boast, as I have
known in a thousand instances, that
it was a prima facie charge of crime.
It is not now as it was once. Under
the provisions of the common law
the grand jurors' oath contained an
injunction of secrecy, which is omit
ted in our practice, and the man was
guilty of contempt if known to reveal
any of the secrets of the grand jury
room. He is not now required to
keep his own counsel. He goes in
and out, and makes the proceedings
of the grand jury room a matter of
fireside conversation, and it is known
broadcast, especially if there is any
interest felt in the proceedings. It
is known that originally, the grand
jury was for the reason that the com
mon magistrate could not try. And
it was for this reason that a court
of impeachment was established, that
a man be tried by his peers. But,
all these reasons have faded out and
subsided. There are none in Ne
braska now. No man is fit to be a
prosecuting attorney who is willing
to stand up before a court and make
his prosecution in the way of his pro-

ABOLITION OF GRAND JURIES

229

Thursday]

MAXWELL— MYERS

[June 29

fessional or official duty. So it does
seem to me that the occasion for the
grand jury has gone. I like the
proposition of the gentleman from
Nemaha (Judge Thomas). I have
yet to find a State that once abolish
ed the grand jury which desired to go
back to it. I do not know precisely
the Michigan system, but we can
study it.
Mr. MAXWELL. Mr. Chairman,
It has been contended that this grand
jury system might be sustained with
out giving the Legislature power to
modify it in any manner. Now, Mr.
Chairman, my friend, the gentleman
from Douglas (Mr. Myers) states
that they have not had any riots in
Pennsylvania where this system pre
vails. I think the gentleman has not
been reading the papers lately, for
there have been several riots within
the past six months.
Mr. MYERS. Will the gentleman
permit me to explain.
Mr. MAXWELL. Certainly.
Mr. MYERS. Those riots did not
arise from anything over which the
courts had jurisdiction.
Mr. MAXWELL. I did not know
riots were" graded. If a person vio
lates the law he is liable to come un
der the law. We all remember the
whiskey riot there, a number of years
ago; also quite a number within the
last fifty years. Now, it does seem to
me, Mr. Chairman, that a system
which is ex parte, and does not try to
get at the facts is a system to be de
precated in a free government. No
man ought to be accused on a mere
suspicion. What is the grand jury
based upon? The State only seeks
what will make out the case for the

State. All the evidence that is re
quired is simply that which accuses
the prisoner. Is it not better to
have some system defined whereby
you can examine into the merits
when the prisoner can have a chance
to show that he is not guilty. I think
you can safely leave this matter in
the hands of the Legislature. I would
adopt a system of allowing the judge
to draw a jury if he sees fit, would
not the State of Michigan have re
pealed this law if it did not work
well there? With the grand jury
system, any sneak can go before the
grand jury and bring injury and
trouble upon any one with whom
he had had a difficulty. This is done
frequently. I say if there is no other
objection to the system but that, that
is sufficient to condemn it. My friend
from Douglas says that no district
attorney will have backbone enough
to do his duty, if he has no grand
jury to back him up. Then the dis
trict attorneys should be removed and
men of nerve put in their places.
Now it is contended that if the grand
jury is abolished, riots and lynch
law will prevail. I ask you if the
leaders in riots and lynch law have
ever been prosecuted. I say that the
gentleman cannot state a single in
stance where these men have been
prosecuted by the grand jury. I will
say that before our being admitted
as a state, that — we had but little
use for grand juries in our county.
The first court that convened in Cass
county, after we became a State
found about forty indictments and
every one of those were quashed.the
next grand jury found about sixty
indictments, I think every one of

2h'0

ABOLITION OF GRAND JURIES

Thursday]

LAKE

[June 29

these were quashed. The prosecut
ing attorney we had at that time was
a man who was disposed to make all
he could out of the position. My
friend here, Mr. Kirkpatrick, was
foreman of the grand jury, and the
prosecuting attorney urged the grand
jury to find indictments, each indict
ment representing $5.00 and perhaps
perhaps forty or fifty dollars would
be made by quashing. I trust we will
give power to our Legislature to sup
press this great nuisance.
Mr. LAKE. Mr. Chairman, Dur
ing the past four years I have
been more intimately connected with
grand juries than before. I agree
with my colleague from Douglas (Mr.
Wakeley) as to the benefits of the
grand jury system. It also has its
draw backs. It has features I like
and features I don't like. In my ex
perience, I have about come to the
conclusion that the expenses and the
draw backs of the grand jury system
are not repaid by the benefits. I
think that in ninety nine cases out of
a hundred there is no earthly use of
calling a grand jury; but I would
not like to sweep the system away
at one stroke, but hope we may place
it in such shape in our Constitution,
that the system will be abolished
gradually, if it is thought better to
do so; trying its abolition in certain
cases, and if found to work well, then
adopt the system which exists in
Michigan. We do not hear that the
people of that state wish to return
to the old tracks, but their system
seems to work well. We all know
that the system of grand juries in
our circuit courts is so expensive that
the taxpayers almost dread to have

the grand jury called, and they also
dislike to be called from their homes
and their business to serve on grand
juries, and then we know there are
thousands of cases which come before
grand juries, where there are ex
parte examinations. It might be well
to have the matter so that the Su
preme court would be empowered to
call a grand jury if there seemed to
be any necessity for it. If it is pro
posed to make some responsible per
son swear that the individual accused
is guilty of a crime, then there is
something to work upon — something
tangible, and upon the first accusa
tion the accused is ready to meet the
charge and refute it if he is not guil
ty. Many and many cases I have
known in which accusations of this
kind were made, witnesses having
merely gone before the grand jury
without any real case, and charged
individuals with high criminal of
fences. Several states have abolish
ed the grand jury system, and finding
that they are satisfied will it not be
well for us to try the experiment?
There is no more difficulty in charg
ing an individual with a crime upon
the statement of a responsible per
son who is willing to swear thereto
than there is in doing it through the
agency of a grand jury, and there is
no more difficulty in having a fair
and impartial trial and in justice be
ing done than in leaving the matter
to a grand jury, which listens to one
side only. Let us try the experiment.
Let us leave the matter to the good
judgment of the Legislature. If
they see fit upon full consideration
of the subject to dispense, either in
full or in part, with grand juries I

ABOLITION OF GRAND JURIES

231

Thursday]

ROBINSON" -PHILPOTT-MASON

[June 29

lor one am In favor of doing so.
Mr. ROBINSON. Mr. Chairman, I
don't suppose I will be able to add
anything to what has been said upon
•this question. I hope the amend
ment will prevail. The system of
grand juries grew up in the dark
ages, and it is the work of barbar
ism. The time for the use of this
kind of machinery in our courts, has
passed, and the system should be
done away with. This amendment
leaves it in the wisdom of the Legis
lature to abolish or keep it. Nearly
all the criminal cases that are now
tried are first begun by a prosecution
before an examining magistrate and
if that is the case, it certainly cannot
be argued here that prosecutions
cannot be openly done, for if they
have the courage to go before a
magistrate with the grand jury sys
tem in existence they will do it with
out it, and that will certainly be the
system adopted instead of this. I
think we ought all to be willing to
trust this to the work of our Legis
lature, as the people are willing to
trust to our hands. Their work can
be undone, our work cannot be un
done. Mr. PHILPOTT. Mr. Chairman, I
wish to add only a word more. There
are many counties in this state which
are attached to other counties for
judicial purposes. I have now a case
before me where a man has com
mitted a crime in one county which
is so attached, and he cannot be tried
until an indictment is first found by
a grand jury of the county where the
crime has been committed, and he
is compelled to lay incarcerated in
prison until such jury can be had. I

do think it would be proper for the
safety of society and the interest of
the accused if he could be sent to
some other county where a court is
in session, without the intervention
of a grand jury and there be tried.
Mr. MASON. Mr. Chairman, in
considering the subject before us it
deserves perhaps a careful investiga
tion and it is unsafe in my judgment
to cut loose from the safe moorings
of the past, unless some good reason
can be offered for so doing. Now un
der the bill as at present framed the
Legislature may abolish the grand
jury system in every class of cases,
except treason and crimes punishable
by imprisonment in the penitentiary.
Ought this Convention in removing,
or wiping out an institution, that has
so long done so much to protect the
rights of the public? My recollection
is not that it was inaugurated by the
common people to secure to them the
power to prosecute the balance, but
as a barrier to stand between them
and Kingly authority. It was saying
to the King, you shall send no power
to arrest or imprison us until we
have been indicted of crime by a jury
of our own country. Now, Mr. Chair
man, let us consider the ultimate end
to be attained, it is to establish a
competent accuser of him who has
been guilty of crime. How often has
it occurred here in the West where
wealth and power have such a strong
influence over men, that a man will
be willing to speak in the chamber
of the grand jury, but he stands pow
erless before the presence of the
wealthy and influential criminal? It
seems to me it is dangerous for com
petent reasons, to cut loose upon the

232

ABOLITION OF GRAND JURIES

Thursday]

MASON

[June 29

wild sea of uncertainty, and trust
ourselves to the sea of fashion that
swells over the Legislative halls. I
desire to call attention to the objec
tion urged by my worthy friend from
Cass (Mr. Kirkpatrick) when he
said that he knew a case where the
prosecuting attorney was anxious
that the grand jury should put a
person through and the grand jury
refused to do it. How often is this the
case that the grand jury has stood
between an innocent citizen and
wrong accusation to protect him from
the power in the hands of the pro
secuting attorney? I say that it is
against the spirit of our free institu
tions to put this power in the hands
of one man. It is worth while to
bear in mind the best portion of the
Lord's prayer "lead us not into temp
tation," and sir, to clothe any one
man with such power to accuse and
arraign our fellow citizens is danger
ous to our civil liberties.
My democratic friends and my re
publican friends, do you propose to
put this power in the hands of one
individual, when it is said to be un
safe in the hands of sixteen? It
seems to me these considerations
should lead us to consider whether
we should go any further than this
bill already does in this question.
It is said it is safe to trust this in
the hands of the Legislature. Pray
what did the people send us here for,
if it was not to stand up as barriers
to the Legislative and other depart
ments? Why sir, if these' things
were safe, you need no Constitutional
convention. It seems to me this is begging the'
whole question. But, Mr. Chairman,

there are objections to my mind most
serious, deep rooted, implanted in
the very nature of human existence
why this institution should not be
eradicated in the establishment of?
government. First, never place in
one man the power which ought to
be exercised by 16 of 23. It is dan
gerous; he might otherwise be a good
man, but when tempted with so much
there is no knowing at what hour
he may fall. Peter withstood temp
tation a while, but he denied his Mas
ter at the last. So when you place
in the hands of one prosecutor the
power of accusing any and every
citizen, it is a dangerous investment
of power; he will wieid an influence
over your county, especially in the
class of cases preceding an election,
dangerous to the whole social fabric,
and might wrap the whole house in
a flame and cause utter ruin. And,
sir, all these things are no fancy
pictures. Why, sir, the experience of
the gentleman from Douglas (Mr.
Myers) formerly from Pennsylvania,
when he reads the experience of the
State of Pennsylvania and her great
legal lights with their learning, he
finds a strong argument in favor of
leaving the salutary power where it
now is. And, sir, is it not most
astonishing that in the very centers
of legal learning, indeed, where we
may say society has been crystalised,
and the very fountain of progres
sion and the exercise of legal author
ity, not one of these old and great
states has cut loose from these safe
moorings. Not one gentleman can
tell me just how far any of these
new States have gone, not one of
these is able to add the experience of

ABOLITION OF GRAND JURIES

233

Thursday]

MASON— MAJORS

[June 29

a single year to the authority of his
arguments, to which I have address
ed myself, not one has been able to
produce the report of the judiciary
for it, of a single State, as to its
workings. Then what are we to do,
you propose to cut loose from one of
the fundamental institutions of the
country, that, I undertake to say, has
not been less salutary in the exer
cise of its influence, and not less use
ful in its application to society here
in free America, than it has been in
Monarchial Europe. What do you do
when you do this? Simply inaugu
rate the law of France as it stands to
day and as it stood before the revolu
tion, nothing more, nothing less, and
the prosecutor may send out his writ
to arrest any citizen of this land.
You are putting a dangerous power
in the hands of this prosecutor, and
gentlemen of this Convention, I be
seech you, in the language of my
friend from Douglas (Mr. Wakeley),
to pause and consider before you cut
loose from this old ship and its safe
moorings, that has banished crime,
and purified and elevated society in
more instances than one. No human
institution can be perfect, no institu
tion of government can be perfect in
all its workings. I do not oppose the
amendment because of my dissatis
faction with the offspring of progress
and law, I am in favor of every use
ful application of the principle of
change, I must first see that no great
danger is to happen to civil society
from this change, and Mr. Chairman
from these reasons I hope the amend
ment proposed by the gentleman
from Nemaha (Mr. Thomas) will not
prevail.

Mr. MAJORS. Mr. Chairman, I
have been listening with interest to
the discussions that have proceeded ,
from this question, and I confess
that when the gentleman from Otoe
commenced his argument in opposi
tion to the amendment, and after he
stated that the principle and history
of the organization of this right of
a grand jury to first sit upon every
case, was brought about in order to
prevent power from controlling the
feeble citizen, but that in order that
the citizen demanded it to prevent
the power of the law, and he argued
it upon this line, condemning the
reading 01 others 'ha* took a differ
ent view, and iii the line of his argu
ment he based his effort upon the
fact of protection against power. He
stated to my mind, that to repeat
this, no individual would be able to
withstand the monied influence and
the man of power in his neighbor
hood and bring him to justice. If
the gentleman's position is correct it
is certainly wrong. I do not sub
scribe to all the argument and reason
of the gentleman in his conclusions
in favor of the grand jury system.
To my mind, Mr. Chairman, it is
simply that the accused may enter
his belief in the defense of the
crimes charged in that bill of indict
ment, that being the only object
for which the grand jury is empanell
ed, and that grand jury dependent
upon the information of a witness
brought before them, whose feelings
and whose knowledge alone they rest
their indictment upon. Why not al
low the individual witness who ap
pears before the grand jury to go be
fore the proper tribunal, and there

234

ABOLITION OF GRAND JURIES

Thursday]

MAJORS-MANDERSON

[June 29

upon nr» o-wn miormation, DacKed up
by his own oath, set forth the bill of
particulars against the accused, then
and there allow the accused to go
and confront him and enter his de
fense? I find some objections, in my
observations and experience, in the
history of this system of indictments,
I have known myself many cases in
which the guilty party has been no
tified of the action of the community
in this direction, has left the country
and escaped punishment thereby. It
seems to me in these latter days in
its workings, rather than to secure
and bring a criminal to justice, it
only drives and runs criminals from
one State to another. The secrecy
of the grand jury room seems to have
been removed, and when a criminal
is moved against in that direction by
some means or another he finds out
the workings of that jury and has
timely notice that he is not needed
any longer in this part of the country.
It seems to me it is a useless expense
and works no good at all to the com
munity, therefore I am certainly op
posed to the system as it is now in
augurated in our system of jurispru
dence. Again, the gentleman from
Otoe (Mr. Mason) does not believe
in giving the Legislature power to
change the system. If it is right and
proper to trust the interests of these
smaller offences, if a citizen guilty
of something inferior to that of an
other, who has been more aggravated
in his wrongs and acts, why take
more care of the grave offenders by
the benefits of the grand jury? I
think if there is any virtue in this
position it should be extended to all
alike, I think the power can be safe

ly invested with the Legislature to
determine this matter. Notwith
standing we are members of a Con
stitutional Convention, we are sub
ject to law as well as legislators. I
do not think transfering us from the
Legislator's seat to that of a seat in
the Convention makes us better men
than before, and I am entirely will
ing to trust this matter in the hands,
and wisdom, experience of the past
and views of the future, with the
Legislature that may represent the
people directly. Therefore I shall
favor the adoption of the amendment
and shall vote heartily for it and
hope to see it carried.
Mr. MANDERSON. Mr. Chairman,
I propose to take up the time of the
Convention but a few moments on
this question, but as the discussion
has appeared to develop itself into
a relation of experience on this mat
ter of grand juries, I propose to give
a little of mine in the State of Ohio.
I had the honor to serve for a few
years in the capacity of prosecuting
attorney and in that position of
course it was within the line of my
duty to attend upon grand juries.
Now, Mr. Chairman, unless I am
widely mistaken of the duty of a
grand jury, they have a larger and a
greater duty to perform than that
suggested by the gentleman last up.
He appears to think their duty is con
fined to the mere dressing up of com
plaints, that the grand jury Is merely
to throw around the information,
that legal verbiage common in in
dictments. Why not so, their duty
is greater than this. They not only
find hills, but they ignore bills; and
in that part of their duty lies very
largely the liberty and rights of the

ABOLITION OF GRAND JURIES

235

Thursday]

MANDERSON— SPRAGUE

[June 29

citizen. We were told by the gentle
man last up, that one of the objections
to the grand jury system is that ow
ing to the fact that no oath is requir
ed from men jurors, criminals es
cape during their investigation or
enquiry before the grand jury. Now,
this is a matter in the control of the
Legislature. If we retain the grand
jury system there is nothing to pre
vent us from placing an oath to pre
scribe that any grand juror keeps
secret all that occurs. I can add lit
tle upon the necessity of keeping this
system of grand juries. I believe
the experience of all men who have
watched the deliberations of grand
juries, is convincing of the fact that
they are, as a rule, honest, and will
not err. We are told that if it.is prop
er that infamous crimes like treason
or murder, and offences punishable
by imprisonment in the penitentiary
should pass through the grand juries'
hands, that it applies with as much
force to minor offences. Inferior
crimes seldom deprive a citizen of
his liberty. Upon information had
before an examining magistrate, as a
general rule, by himself or through a
jury, passes upon the guilt or inno
cence of the accused and affixes the
penalty. If it Is an offence of a higher
grade, it goes before the grand jury
and inquest is had. Inferior crimes
too, are bailable, and the figures are
within the reach of most. We are
told this is an expensive system. It
seems to me we ought not to weigh
dollars and cents against the liberty
and safety of citizens. But, I say it
is not an expensive system; and it
seems to me the gentleman from
Douglas struck the right nail on the

head when he said that the grand
jury, acting under its oath and with
in the line of its duty, kept out of our
courts and from petit juries many
frivolous cases that would otherwise
go to them. A, desiring to inflict
some punishment, perhaps on B, to
secure vengeance or satisfy his mal
ice goes to the prosecuting attorney,
and says "Mr. Prosecutor, B has been
guilty of such an offence, I am ready
to make my complaint, and demand
you to do your duty." The prosecut
ing attorney, it is proposed, shall
usurp the province of the grand jury
to a certain extent. He draws up the
information, it is subscribed to, the
oath made, and a warrant issued for
the arrest of B. What would be the
course before the grand jury in Ohio?
It is required that the prosecuting
attorney shall cause to appear, where
the party has been bound over, all
the witnesses examined before the
authority that bound over. The
grand jury have not only the oath
and statement of the prosecuting
witnesses, but he must bring all the
witnesses by whom he expects to
make his case and prove B guilty of
the crime charged. It seems to me
the gentlemen in the Convention are
Supreme judges, and I am loath to
give to the Legislature the right to
take away this privilege, which
rightfully belongs to the citizens.
Mr. SPRAGUE. It strikes me this
is a very important matter, and we
should not act hastily. And as one
item strikes my mind which has not
yet been spoken upon I wish to re
fer to it. Having had, in this State,
some five or six years experience as
a prosecutor, and it having been my

236

ABOLITION OF GRAND JURIES

Thursday]

SPRAGUE-MYERS

[June 29

duty during that time, to appear be
fore the grand jury and see the op
eration of this matter before them.
I have frequently seen cases of this
kind occur, and it might be well for
us to consider whether they will not
occur in the future. There is, upon
the part of the witness, a disposition
not to appear, even before the grand
jury; and from the organization of
the grand jury, coming from different
portions of the county, they were
sworu and a jury empanelled to en
quire into the commission of the of
fences, of any that might come within
their knowledge. It is supposed they
know of all crimes committed within
their county; and when the oath is
taken they are required to send for
all witnesses. I have known grand
juries compelled to remain in session
for two or three days, when witnesses
have tried to keep out of the reach
of the officers. Now, if there is no
person or authority to compel these
witnesses to come before them, how
shall we get them there in cases of
this kind? It strikes me that in this
thing alone it is important. It will
cause offenders to be brought to jus
tice in cases of this kind who never
will be brought in any other way.
Mr. MYERS. I do not wish to de
tain the Committee by any lengthy
observations on this subject, as it
has been so ably and thoroughly dis
cussed by the gentleman from Otoe
(Mr. Mason) in whose opinion I en
tirely concur, and who has delivered
a good argument in favor of this sub
ject, the best argument. The grand
jury system runs through our whole
form of government. It is one of
the foundation stones of our Repub

lican institutions; and it is the
foundation stone of Republican in
stitutions in England. It ran through
the legislative departments of the
Congress of the United States, and all
other States of this Union. The Leg
islature of every State and the lower
House of Congress is a grand jury
when it prefers articles of impeach
ment against State officers for mis
demeanor. How would it appear in
State trials, where the grand jury
prevails, in preferring these articles
of impeachment, for an individual, or
his own motion, where there is no at
torney general, no judge, no power
to investigate into the probable caus
es of allegation, to appear in the
presence of the Senate, and make
allegations of misdemeanors of of
fice, without being sustained? What
a ridiculous position he would occupy
in an event of that kind! But the
laws, the organic laws, provide that
allegations of this kind should be.
presented to the House of Represen
tatives. Each acts in the capacity of
a grand jury; and from its own in
vestigation or its own knowledge,
they frame articles of impeachment
or indictment against those who have
proved faithless to their obligations
to the State. I hope the argument
of the gentleman from Otoe will con
vince this Convention of the danger
of abolishing the grand jury. It is
true we have crushed kingly power
in the United States, and this is the
only power in the world which has
done so; but there are other powers
as insidious and powerful as a mon
archy which require to be moved.
There are individuals who will crush
out individual rights of the citizen,

ABOLITION OF GRAND JURIES

237

Thursday]

STRICKLAND

[June 29

therefore I want this bulwark of lib
erty, this foundation stone of our
early fathers, who contended for that
right before King John, preserved;
I want that we should continue this
custom in our State, notwithstanding
that a few grown States have under
mined it. I stand here, upon the
Rock of Ages, which has been prac
ticed in glorious Pennsylvania, and
help to keep this guard of liberty
thrown around the rights of private
citizens. I hope this Convention will
not commit an act of suicide or felo
de se in this case; but show to civi
lized nations that we will go govern
ed by their system.
Mr. STRICKLAND. Mr. Chair
man, I have only a few words to say.
I have had some little experience
in this matter, having for four or
five years past been a public prose
cutor, and I have observed the work
ings of this thing. The arguments
used to-day by my friend Myers and
the gentleman from Otoe (Mr. Ma
son) were used to continue and up
hold the idea that a man could be
shackled and deprived of his liberty
¦ — the same ideas and the same high
sounding eloquent words. If there
is anything which is tainted with
barbarism, it is this secret tribunal
called "grand jury." When the gen
tlemen talk about one man, the pro
secuting attorney, having so much
power, they seem to forget that this
same power is exercised by the grand
jury, and the difference is this, the
grand jury exercise their power in
secret, while by the method proposed
by those opposed to the grand jury
system, this power is exercised in the
open day, and the evidence is discuss

ed ana clmrges made m open couri.,
and not in this Star Chamber of se
crecy. Why look at the working of
the grand jury room. The business
is all done in secret. No man can
enter the door without he is a pro
secutor. Suppose A is charged with
a crime; he has five witnesses to dis
prove the charge, but the court in
structs the grand jury "you will re
ceive no witnesses for the defense."
No witnesses to explain, or justify.
No sir, but the informer sneaks in
by a back door> and makes his
charges, and the true honest man is
not allowed to come in with his five
witnesses and disprove the charges
made by a sneak and a coward. The
accusations upon which this man
must stand a trial are made upon
the information given by this sneak,
who steps in by a back door. Is it
possible this great country is to-day
submitting to this? I don't wonder
that gentlemen who have seen so
much of it, condemn the whole sys
tem. If any man upon earth has
reason to cry out against the system,
it is the honest , upright judge who
has seen its workings, and I am glad
to see my colleague, Judge Lake
take the ground he does. By the
method proposed as a substitute for
the grand jury, some responsible
citizen makes complaint against the
individual in open daylight, and then
if the accusation is untrue, he can
be contradicted.
My friend, General Manderson,
spoke about "frivolous cases." That
is where they come in and little dirty
frivolous cases. There is the place
to spend all the gall and venom
which some men possess. A great

238

ABOLITION OF GRAND JURIES

Thursday]

S TRICKL A ND-C AMPBELL

[June 29

many cases of this character are
brought before the grand jury, and
the little dirty hate and spite are so
easily seen, that the Judge sitting
upon the bench, or the District At
torney, quashes the whole thing.
Often an indictment is found against
an honest upright man, who, for
months perhaps writhes in the agony
of being the object of unjust suspic
ion, while the fellow who has done
this, walks about the street in the
image of his Maker, when he should
have hoofs and horns. I have seen
so much of this, gentlemen. How is
it when a man's name is presented
upon an indictment? Guilty! Guilty!
Says the world, until he is placed
upon trial and declared innocent by
the traverse jury. What is there,
I ask in the name of Heaven, in a
Republican government which neces
sitates this secret action?
Why not open the doors and win
dows to the whole world, and let wit
nesses testify for an ©Id friend and
neighbor, and if there be an extenu
ating circumstance, let it appear? But
no sir, this is not done. This entire
system is wrong, and should be made
right. If the laws of your state are
defective, correct them. It is urged
that District Attorneys would be
afraid to do their duty if they were
not backed by a grand jury. I don't
believe it. For the four years I have
done the business of United States
Attorney, I have prosecuted charges
made against individuals, when I be
lieved them to be correct, as a pub
lic prosecutor should. When a pub
lic prosecutor has not the nerve to
do this, let him skulk to the rear.
This is the way cases should be con

ducted. A complaint is made be
fore an examining magistrate, the
magistrate hears both sides, and if
he finds the evidence sufficient to
commit, he commits, and the indivi
dual is brought before the court for
trial. The Prosecuting Attorney
draws up a complaint embodying the
law and describing the offense. Now
how simple that is, and it is all done
in open court. In conclusion I beg
pardon for taking up so much time.
But what a simple thing it is to dis
pose of cases without all of this se
crecy. And there is a great deal of
expense and disappointment connect
ed with this system. Very often a
witness does not want to testify. How
many times, in the United States
Courts, witnesses run away. Now look
around for your volanted witnesses
when the hour comes, and they are
not to be found, they are gone —
gone to California, or Pike's Peak,
and then your District Attorney says
"we have no case and a nolle" is the
consequence. But, gentlemen, over and above all
these considerations are the rights of
persons to be faced by their accusers. ¦
I will state outside of that that the
grand > jury entails upon this State
one third of the expense of the coun
try, yes sir, one third.
Mr. CAMPBELL. Mr. Chairman, I
would like to have every member on
this floor give his reasons for or
against this Article. I will give the
reason in brief why I am not in favor
of the Article. The arguments urged
reminds me of the fable about the as
semblage of beasts to consult how to
destroy man, because he kept them
from killing one another. Just so

ABOLITION OF GRAND JURIES

239

Thursday]

WILSON— WA KELEY

[June 29

they come up and want to do away
with this system, because it keeps
men from killing each other.
The prosecuting attorney is gener
ally some little petifogging jack-leg
of a lawyer in some of the counties,
and they dare not bring an accusa
tion against my friend General Esta
brook who stands six feet in his boots
not only literally but intellectually
too. Let us stand by the good old
system. Mr. WILSON. I did not intend to
say anything on this subject. I am
sorry to disagree with my friend
from Nemaha. If I wanted counsel
he would be the first man that I
would go to. I knew a case of a man
who had an interest of $2,700 in an
estate, and others combined together
and said let us send that man to the
penitentiary and we shall easier se
cure the $2,700. The father and son
came , sneaking into the grand jury
room to swear away the liberty of
that man unknown to him. I saw at
a glance what they were after, with
others of the jury, and we refused
to find a bill against him. For that
reason I made up my mind if ever it
was in my power to put down this
grand jury system, I would labor
night and day for it.
Mr. WAKELEY. Mr. Chairman,
after the extended debate on this
question it may be proper that I
should have something more to add.
I am glad that the discussion has
been had. I have risen mainly to
reply to the gentleman from Doug
las (Mr. Strickland) who has been,
from his own experience as a United
States prosecuting attorney of the
State . of Nebraska, surrounded with

crime and felony, but not with moral
and good conduct. Who is it in the
land who fears this secret inquisi
tion sir? It is the murderers, the
felon. The man whose evil crimes
have been concealed, and whose acts
are being inquired into, it is the man
who fears the law and justice. The
good citizen of the State of Nebraska
does not fear it, I do not fear it, you
do not fear it: the gentleman who
has denounced this system as an in
quisition does not fear it. But sir,
the men who would have it abolished
are the men who assault the lives,
property and persons of our fellow
citizens. Sir, the gentleman tells you
that men sneak into the grand jury
room and prefer complaints, and up
on ex parte evidence these indict
ments are found, and that these com
plaints are found to be baseless. If
this system is to be abolished, in
whom is this power to be vested?
Will the gentleman say to this Con
vention that the public prosecutor is
a safer power than the grand jury?
Would it be safer for him as a pub
lic prosecutor to say that a man is
guilty of a crime than to leave it to a
grand jury of the different citizens of
Nebraska? Two things are to be
made out, one is that all men, who
ever commit crime, shall be put on
trial for it, the other is that men
shall not be unjustly accused. Has
not the gentleman observed that one
of the main duties of the grand jury
is to protect the innocent from unjust
accusation? He says, I believe cor
rectly, when he says that very fre
quently crimes have been committed
and no complaints have been made
before examining magistrates, and

240

ABOLITION OF GRAND JURIES

Thursday]

CAMPBELL— WAKELEY

[June 29

sir, grand juries are empanelled just
to reach such cases; when they
come together they are charged as
one of their duties to inquire into
all crime that they know of having
been committed in their county, that
the guilty may be punished. Over
and over again does it happen that
crimes which have not yet been pros
ecuted are brought to the cognizance
of a grand jury, indictments framed,
the accused put on trial, convicted
and punished. It is objected that
that the grand jury is a secret
tribunal; this Constitution will
not consider it a secret tribunal. It
has been, and will be, in the power
of this State, if they think public jus
tice will be subserved, to order that
the accused may be heard in his own
defense before the grand jury. My
friend, General Manderson, says it is
the law of Ohio, that when crime is
for the first time presented to a
grand jury that they should send off
and notify the accused that an accu
sation had been made at their bar
and required him to come there with
his witnesses in his defense, would
you not thereby defeat one of the.
great objects to a grand jury?
Mr. CAMPBELL. I would like to
enquire whether they can send for
witnesses. Mr. WAKELEY. They can, sir,
and they are told over and over
again from benches of this State, if
in their investigations they have rea
son to believe that other witnesses
than those produced before them by
the prosecutor can throw light on the
case, it is their duty to send for them.
Against all these arguments I say
this, I prefer to trust a jury of 16

men, good men and true coming
from all portions of the county or
district, sworn to be true and just,
sworn to present no man from
hatred, envy or malice, sworn to pre
sent no man from fear, favor or hope
of reward, than I would trust any
prosecutor, I do not care whether in
courts of the United States, or of
this State. I say there is more safety
to the citizens, more safety to persons
and property, when this body of men
are charged with a special duty of
enquiring into crime, than when it
is left to a prosecutor who has, to
some extent, the life, liberty and prop
erty of its citizens in the hollow of
his hand. I would trust 12 men
where I would not trust one man.
Talk of men being unjustly accused,
in my humble judgment, in all I have
seen, I say a great many more inno
cent men would be accused of crime,
paraded in the face of the world as
villians, if you left to any one man,
I care not how wise or pure he may
be, if you left that power to him,
than when it takes 12 men acting up
on their oaths to accuse one of their
fellow citizens. The people of this
State, of other States where I have
lived, have not complained of the ac
tion of grand juries; whenever they
had occasion to complain of venom
and malice, it has been against oth
er instruments of law than grand
juries. I sir, believe, it is the good
citizens of the land who uphold
grand juries. I believe it would be
the criminals of the land who would
be glad to see it abolished, and who
would feel safer if it were abolished.
"No rogue e're felt the halter draw
with good opinion of the law."

ABOLITION OF GRAND J DRY

241

Thursday]

STRICKL A ND- WAKELEY— LAKE

[June 29

What does the experience of this
country teach? My colleague from
Pennsylvania (Mr.Myers) has suggest
ed what all our reading and knowl
edge and experience has taught us.
It is in the good old States where
grand juries have prevailed from the
beginning of government, it is in
Massachusetts, the New England
States, the old Empire State and the
grand Keystone State, that criminals
are most frequently brought to light
when there is difficulty in convicting
them. I have never heard any gen
tleman claim that more criminals
were accused or convicted in States
where this system had been dispensed
with, than in those old States where
they have proved it in its original
strength and intact.
Mr. Chairman, I do not care to
trouble this Committee with further
remarks upon this subject, I have no
other interest than every member
here or every citizen of Ihe State has.
Mr. STRICKLAND. May I ask a
question? (to Mr. Wakeley) do you
remember the charge of Judge Dundy
on three several last courts, that the
grand jury were to examine no wit
ness for the defense?
Mr. WAKELEY. I do not know
what Judge Dundy's charge has been.
If he has instructed the grand jury
what their duty is, he has told them,
not that the accused could come
there, that his witness be heard, but
that so far as the investigations made
by them and disclosures made before
them, lead them to believe or suppose
that light would be thrown upon the
investigation by summoning other
witnesses than those brought before
them at the instance Of the prose-
16

cution, it was their right and duty
to bring those witnesses and hear
their testimony.
Mr. STRICKLAND. I will state
that there is a statute of the United
States, that compels the United States
court to adopt the practice of the
State in which it sits.
Mr. LAKE. Mr. Chairman, I wish
to say but a word more. I am glad
this discussion has taken place, that
we may know the views of the gentle
men representing the different por
tions of the State. I have listened in
vain for any argument, why the
system of grand juries should be con
tinued. We have heard it referred to
as being of immense benefit in an
cient times, in other days, but not
one argument as I apprehend ad
vanced in favor of continuing it at
this time. We should not forget that
it is not the intention, it is not the
object of this amendment to the sec
tion now under consideration to
abolish the system of grand juries;
that is not the intention, it is to leave
it to the experience of the Legisla
ture of the State hereafter to deter
mine whether or not it be best. If
a broad proposition were presented
here to day to wipe out irrevocably
the system of grand juries, I would
oppose it, because if it were wiped
out in this manner, then it could not
be reclaimed, it would be the end of
it, but it is only proposed to leave
it to the experience of the Legisla
ture, that if, in their good judgment.
it be found best, by a gradual aboli
tion, by modifying it from time to>
time and finally dispense with it en
tirely, the Legislature may do so;
there is nothing imperative about it.

242

ABOLITION OF GRAND JURY

Thursday]

LAKE

[June 29

The argument has proceeded as
though the fate, though the fortunes
of a person accused of crimes was
to be placed entirely in the hands of
the prosecutor. Not so, it is to be
left to Legislative provision; the
Legislature are to provide if they
think best some other mode of ac
cusing persons who may be suspect
ed of crime. It may be that they
will throw other safeguards around
the mode of accusation, safeguards
which will be entirely adequate. Of
course safeguards should be provid
ed. Responsible persons should be
required to make the accusations, but
these are arguments which will be
more properly -addressed to a Legis
lative assembly, met for the purpose
of considering what substitute should
be provided for this ancient and dis
honorable system. We are not here
for the purpose, so far as this pro
posed amendment is concerned, to
provide what shall be or may be done,
we are simply proposing that the
Legislature may in their good judg
ment, provide some other system of
accusation, if they see fit not to do
it then this provision, this system of
grand juries will be continued. It
Is already provided in this article,
in this section, that the grand jury
may be abolished in petty offences,
in cases of minor crime. Now it has
been found to work well in that class
of cases.
If further experiment shall demon
strate that in cases punishable by im
prisonment in the penitentiary, that
the grand jury may be dispensed
with, then why not dispense with it?
The experience of a year will not
hurt us. It is not so dangerous a

distinction that it will work preju
dicial to the State to leave it to an
experiment of one year. I_f it be
found to work disadvantageously,
then at the next session of the Leg
islature that act may be repealed,
and the system of grand juries, as
provided for here, will remain a part
of the Constitution. It is only leav
ing it to the good judgment of the
State, the representatives of the peo
ple, who are as capable to judge of
this matter as we, and who are as
responsible and answerable to their
constituents as we, to judge for them
selves and represent the wishes of
the State in that regard. Shall we
say to the people of the State they
shall not exercise this right? It is
a question to be determined here to
day. It is not saying to the people,
"you shall not have a grand jury
system," but "you may have it if
you desire it." And is there a gen
tleman upon this floor who is unwill
ing to trust the people to determine
this question for themselves? We do
not propose to engraft upon this Con
stitution a provision which irrevoc
ably disposes of the grand jury sys
tem of the country. We do not- feel
like laying sacrilegious hands upon
this great bulwark of British liberty.
Reference has been made by several
gentlemen to the hardships that work
by reason of the present system. I
have known many of them myself.
The gentleman from Lancaster (Mr.
Philpott) referred to a case where
there had been probably not enough
disinterested men, or were not a year
ago, at the time the crime was com
mitted in the county of Hamilton,
to decide upon the case. That jury

ABOLITION OF GRAND JURY

243

Thursday]

LAKE

[June 29

would be willing to have an accusa
tion made against him if it could be
done, and he would ask that a change
of venue be made to some other
county, and he would be willing to
waive his trial, but the State cannot
do this without the intervention of
the grand jury. The proceeding of
the court would be nullity. He can
not be proceeded against except
through the intervention of a grand
jury, and he must lie in jail and
await the action of the authorities of
the county for the calling of the
court; and if there are not a neces
sary number of men to be found, he
must be in jail until, through the in
strumentality of the tide of immigra
tion that is now going on, a sufficient
number of men may be found to form
a grand jury. It was said this system
should be retained in order that com
binations of men might not thwart
the law. How was it recently in the
northern portion of the State? Why,
sir, men have been taken and by their
fellows in the open day, and on the
Christian Sabbath, and fresh from the
Christian church, these fellows have
gone forth and hanged a victim to
the nearest tree, without Judge or
jury; and when the court has been
called together and the grand jury
instructed that if such and such had
been done and was done, the result
was that no indictments were found,
notwithstanding that the thing was
done in open day. Who was over
awed? The courts or the grand
jury? It will not do to urge these
exceptional cases against any system.
I do not urge that as a reason why
the grand jury system should be
abolished, 'but for the purpose of

showing that while the public pros
ecutor may be overawed, grand juries
may be overawed in such a manner
as to lead them to fail in a proper
discharge of their duty. If these are
the only reasons to be urged against
the system I would not urge the
favorable consideration of this amend
ment. But I say the benefits which
accrue to the State; to the individual
charged with the crime, do not begin
to weigh down in the scale as against
the evils and expense and other con
siderations which may be urged
against the system with its disadvan
tages. And therefore, I trust the
tenor of this amendment will not be
lost sight of; that we shall bear in
mind it is not a proposition to abol
ish, permanently, the grand jury sys
tem, but leaving it entirely to the
people, as a safe repository where
that power may be safely left; and if
their experience, hereafter, shall
prove it is not wise to abolish it they
shall retain it on the statute books.
It has been said that grand juries
were bound to call in witnesses for
the defense in the criminal court.
It is not competent for the grand
jury to call for witnesses for the de
fense, but only for the prosecution.
It has been said it is a "star cham
ber" practice. It was a secret tribu
nal until recently. It is said the Leg
islature may provide how accusations
shall be made against one charged
with or suspected of crime; what
responsible person shall make the ac
cusations; what the form shall be, and
what chances will accrue to the ac
cused. All these are left to the Leg
islature,' and it is safe to leave it.

244

ABOLITION OF GRAND JURY

Thursday]

STRICKLAND- MASON

[June 29

there. Let us, at least, give the peo
ple of the State a chance to try the
experiment. Mr. STRICKLAND. For the infor
mation of my colleague (Judge
Wakeley) , and my friend Dr. Camp
bell, of Otoe, I will read from the Re
vised Statutes, page 636:
Sec. 194. In all complaints exhib
ited before the grand jury of any
county, they shall hear the witness
on behalf of the territory only, and
may find an indictment on the oath
of one witness only, or upon the in
formation of two of their own body,
except in cases of treason or perjury,
when at least two witnesses to the
same fact shall be necessary; and in
finding a bill of indictment, at least
twelve of the grand jury shall be
present, and at least twelve of them
shall agree to the findings: The
foreman of the grand jury may swear
or affirm all witnesses that may come
before the jury.
I think this is the law of the land
now. Mr. MASON. I desire briefly to
expose some of the plans urged by
the gentleman last on the floor. It
is said that the man in Hamilton
county is willing that accusation be
made against him, but that there
are not sixteen men in the county
but have expressed an opinion. If
that be true, and there be sixteen
men in the county, you have only
to get those sixteen men together,
and although each of these may
have expressed an opinion, yet if he
does not object to any of them they
may bring up the indietment, and he
take the change of venue and secure
a trial at once. But we are told it is
not abolishing the grand jury system,
but simply giving the Legislature
the power of abolishing it. We are

sent here to take from the Legisla
ture all power to inveigle, and invest
them with power to do good. Now,
the question is, which is the safest re
pository, the power to abuse, one
man or sixteen? And I desire to
challenge the attention of my friend
from Johnson to the case he put. If
they had no prosecutor and that wit
ness had come in and made his case,
do not you think that would have
been a prosecution swearing; and
was it not a fact that you had six
teen goodmen on that jury, whosaved
that man from prosecution? And is
not this a sound reason why this in
stitution should not be abolished? It
is strange this thing should pass be
fore my mind at this time. Now,
Mr. Chairman, when a change in a
law is sought, it remains for those
desiring this change to show the ben-
iflts which will accrue therefrom. It
has been stated here by one of the
opponents of the grand jury system,
that one third of the expenses of our
State government was caused by this
system. I was surprised that the
gentleman from Douglas (Mr. Strick
land) should make this assertion,
which cannot be sustained. It has
been urged, too, that men come be
fore this "Star Chamber" and make
accusations against their honest
neighbors. Now if you select sixteen
capable, upright men to serve as a
jury, is it likely that an innocent man
will suffer, or is it probable that one
public prosecutor will be more hu
mane, more pure, or better qualified
to discharge this duty? If a sneak
ing, witness is to come in at a baek
door and testify against a neighbor
is it not reasonable ta suppose' that

ABOLITION OF GRAND JURY

245

Thursday]

MASON— LAKE

[June 29

he will influence one man more than
he can influence sixteen? Answer me
this. Mr. Chairman, before I go any
further, will you read the amend
ment? The CHAIRMAN, (reading) "Pro
vided, that the Legislature may pro
vide for the trial of criminal offences
in all cases, without the intervention
of a grand jury."
Mr. MASON. Now if this amend
ment shall prevail, the Legis
lature have no right to reinstate
that grand jury, although it may
be found that the arrangement
substituted therefor is sapping the
very life of the State. In this case
the Legislature has a special power
given it, and, having exercised
that power, its action cannot
be revoked. Its power in this
direction is gone forever, this, gen
tlemen, is one of the sophistries
which I desire to explain, you vest
a particular power to do a particular
thing to the Legislature, and the ex
ercise of that power precludes the
possibility of doing any other thing
in that direction.
Mr. LAKE. Do I understand the
gentleman to say that the Legislature
cannot repeal an act when it has
once passed it?
Mr. MASON. You understand me
to say that when the Legislature is
directed by this Constitution to do a
particular thing, they cannot undo it
after having done it. In support of
this theory I might quote a work on
"Constitutional Limitations". The
gentleman from Douglas (Mr. Wake
ley) has stated some of the advan
tages of the grand jury system,
most truthfully. Its uses in the past,

its advantages to society entitle it to
respectful consideration. We might
cite a long age of British history to
show that six hundred years ex
perience in that country has sanc
tioned this system. Take the gentle
man from Douglas (Mr. Strickland)
who spoke with so much feeling on
this subject — take his argument and
what ideas has he advanced? I ask
you Mr. Chairman, and every gentle
man of this Committee, if a witness
can fool and deceive a jury of six
teen men as easily as he could a sin
gle prosecutor; or, take the other
position; if a witness deceives six
teen men, could he not deceive some
other institution that the Legislature
might provide. Oh! gentlemen, let
us look this thing in the eye. We
propose to give to three men in this
State power to act in the place of
sixteen men drawn from each county,
and who are to take cognizance of
the crimes committed in those coun
ties. I say where will you deposit the
power to make accusations — where is
the man to whom this power can be
entrusted? If you go to the grand
jury room and select sixteen good,
true men and entrust the power of
making accusations to them you are
leaving the business in safe hands.
I have no feeling in this matter, ex
cept that caused by a desire to make
safe provision for my children and
neighbors, in this respect. I believe,
as the gentleman from Douglas,
Judge Wakeley has said, that the
experience of six hundred years has
shown the grand jury to be the safe
repositor of this power to make ac
cusations, and I for one intend to use
my influence against the innovation

246

ABOLITION OF GRAND JURY

Thursday]

MASON— WOOLWORTH

[JUDe 29

urged. Let me ask each individual
member of this Convention — let me
ask the gentleman who spoke so feel
ingly — is there any more danger of
twelve honest men finding you guilry
of a crime, than there is of one man,
who perchance, is elected public pros
ecutor? Who is the most infallible,
one man, or twelve? In the one case,
in the language of Thomas Jefferson,
you "are going to import a man to
accuse you" would you bring a man
from Otoe county to accuse the peo
ple of Lincoln? Under the grand
jury system, accusations are made by
sixteen men who are taken from your
midst — men who know you and all
your affairs. They are your neigh
bors and friends, while under the ar
rangement proposed, you are to be
accused of crime by a single man who
knows nothing at all about you, but
is peihaps an entire stranger. Mr.
Chairman, my only excu&s for occu
pying so much dl your time must be,
that I feel this is a dangerous innova
tion. I am not satisfied to commit
the interests and the liberty of my
own children and my own neighbors
to the tender mercies of a prosecutor
coming from another county. I had
rather trust them to sixteen men
taken from the hallowed precincts of
my home. This power to accuse, in
the language of the gentleman from
Douglas (Mr. Wakeley) I had rather
trust to sixteen of my neighbors, than
to any man that the President may
appoint, the Governor may appoint,
or the people elect. It is simply a
question as to wherein you will re
pose this power. Let us adhere to
the good old customs of the past. In
this, we will find security, safety and

peace in the future, as we have found
in the past.
Mr. WOOLWORTH. Mr. Chair
man, I move that the Committee do
now arise, report progress, and ask
leave to sit again.
The Committee divided and the
motion was agreed to.
Mr. GRIGGS. Mr. President. The
Committee of the Whole have had
under consideration the Bill of
Rights, and have instructed me to
report progress and ask leave to sit
again. Mr. MYERS. Mr. President, I
move that this Convention do now
adjourn, to meet to-morrow morning
at 9 o'clock.
Mr. MANDERSON. Mr. President,
I move that when we adjourn to
morrow, that we adjourn to meet on
Tuesday, July 11th, at 2 o'clock p. m.
The motion was agreed to.
Mr. MYERS. Mr. President, I re
new my motion to adjourn until to
morrow morning.
The motion was agreed to.
So the Convention (at six o'clock
and five minutes) adjourned.

FIFTEENTH DAY.
Friday, June 30th, 1871.
The Convention was called to or
der at nine o'clock, by the President.
Prayer.
Prayer was offered by the Chap
lain to the Convention, Rev. L. B.
Fifield, as follows:
Oh Father, God of Heaven and
earth, this Convention would ac
knowledge Thy hand in the good tid
ings that have come from beyond the

AGRICULTURAL COLLEGE LANDS

247

Friday]

ESTABROOK— WILKINSON

[June 30

sea — the tidings of this great victory
of Peace. God bless the President
of the United States and all the citi
zens of the Republic. God bless the
British Queen and all her subjects.
And now, Oh Father, guide, we be
seech Thee, the counsels of the morn
ing, may truth be sought by the Con
vention, that the people may be made
glad; that our freedom may be es
tablished; that the State may become
very strong. Amen.
Reading of the Journal.
The PRESIDENT. The reading of
the Journal will be dispensed with
for the present. The Secretary has
not got it quite ready.
Communications.
Mr. ESTABROOK. Mr. President,
Here are two communications which
I would like to have read.
The Secretary read as follows:
Land Office,
Dacota City, Nebraska.
June 26, 1871.
His Excellency
Wm. H. James,
Act. Governor.
Dear Sir:
In reply to your communication of
the 2 2d inst., I have the honor to
submit the following statement:
Sometime in the months of October
and November, A. D. 1870, Abram
Deyo, an agent for the State, came
to my office with a list of lands he
had personally examined, and from
which he informed me he intended
to make selections in the name of the
State of Nebraska, for Agricultural
College purposes. Mr. Deyo remark
ed that he was not prepared to make
the final selection of those lands and
asked me to designate in some way,
on the Government Platts, the vacant
lands contained in his list and to
retain them for a time, or until he
could return to Lincoln and confer
with the Governor, and then he would
send me a list of approved selections.

I designated those lands by the letter
"S" in pencil on the plats, and in
that way set apart ninety six thous
and acres of land, on Mr. Deyo's list,
which, he remarked, was twenty-tive
or thirty thousand more acres than
he would likely wish to select in
this district.
After waiting four or five months,
and receiving no list of selections, nor
any formal application for the lands,
¦I did not feel justified in longer with
holding these lands from private en
try, but when parties applied for
them, I invariably told them the
situation of the lands. I have not
thought, and do not now think, that
the State acquired any right to these
lands nor title in them by the action
of the agent, neither do I think Mr.
Deyo thought so himself. There still
remains vacant of those lands exam
ined by Mr. Deyo, eighty four thous
and acres which is more than the
State Agent expected to take from
this District.
I did not intend to jeopardize the
interests of the State, and do not
think the lands remaining of Mr.
Deyo's list less valuable than those
taken. Hoping this explanation will be
satisfactory, I remain,
Very respectfully,
Your obedient servant,
GEORGE W. WILKINSON,
Register U. S. Land Office, Dakota,
Nebraska.

Treasurer's Office, Cass County,
Nebraska. Plattsmouth, Neb., June 28, 1871.
E. ESTABROOK,
Dear Sir: — In reply to a request
from the Committee on Education,
I would say that it , would, at the
present time, beumpossible for me to
get up such a statement as you want.
The county clerk made out a full
statement last winter for the Auditor,
which you will find in his office. I
have sent full reports of all money
coming to my hands to the Auditor
and Treasurer.

248

SCHOOL LAND SALES

Friday]

ESTABROOK— KIRKPATRICK— McCANN

[June 30

All moneys received here has been
sent to the State Treasurer.
It would take me two weeks
steady work to get up a report that
you want, at a cost of about Fifty
dollars, which I am not able to pay.
The report in the Auditor's office is,
I think, all that is necessary.
Yours respectfully,
W. L. HOBBS.
Mr. ESTABROOK. Mr. President,
I ask that those communications be
referred to the Committee on Edu
cation and School Lands, that they
may be embodied in their report.
Mr. WOOLWORTH. Before this
is done, Mr. President, I would like
to ask whether this Cass county
Treasurer is one of the number of
county Treasurers who have been
spoken of here as not having made
proper returns to the State Treasurer.
Mr. KIRKPATRICK. I would
state, Mr. President, that he is not
included in that number. I know
that full reports with regard to the
school lands have been sent in from
that office. The sales in our county
amount to over $10 0,000. That is
the amount for which the land has
been sold and the required 10% and
the interest has been paid.
Mr. ESTABROOK. I would state
that the Committee to whom the res
olution was referred making these
inquiries, are preparing a little cir
cular to send to the different county
Treasurers asking first: whether they
have sold any school lands, second;
what amount of money they have re
ceived, and whether it has been
transmitted to the Treasurer of the
State, and if so, whether vouchers
have been received by the Treasur
ers of the counties.
This communication coming from

the Treasurer of Cass county was
received in answer to such a commu
nication from this Committee, and
it looks to me rather suspicious; I
think if the Treasurer had kept his
books right he could make out a re
port very easily.
Mr. KIRKPATRICK. Mr. Presi
dent, I do not understand that the
Treasurer is to keep an account of
the lands sold, he keeps an account
of the monies received. I know it is
the duty of the county clerk to keep
a record of the amount of land sold.
The Treasurer now responds that all
of the money received by him has
been paid into the State Treasury.
There is a condensed statement of
this sent in here and he refers to
that statement on file in the Audi
tor's office.
Mr. McCANN. Mr. President, I
move that this matter be referred to
the Committee on Education and
School Lands.
The motion was agreed to.
Unfinished Business of the Previous
Day.
The Secretary read a resolution of
fered by Mr. Scofield, as follows:
WHEREAS: It is of the utmost
importance to the safety of every
State that it should always be in a
condition of defense, and it is the
duty of every man who enjoys the
protection of society, to be prepared
and willing to defend it, therefore,
RESOLVED: That the militia of
this State at all times hereafter, as
well in peace as in war, shall be
armed and disciplined and in readi
ness for service. That all such of the
inhabitants of this State who, from
scruples of conscience, may be averse
to the bearing of arms be excused
therefrom by the Legislature, and be
required to pay to the State such

MILITIA— ICE— STATE LANDS

249

Friday]

S COPrELD-BO YD— SPEICE

[June 30

sums of money in lieu of their per
sonal services, as the same may, in
the judgment of the Legislature, be
worth; and that a proper magazine of
warlike stores proportionate to the
number of inhabitants be forever
hereafter, at the expense of this
State, established and maintained at
such place within the State as the
Legislature may designate by law.
Mr. SCOFIELD. Mr. President, I
move that the resolution be referred
to the Committee on Military Affairs.
The motion was agreed to.
Incidental Expenses.
The PRESIDENT. A little bill
presented here to the Secretary for
expenses. The Convention will have to pass
upon it.
The Secretary read the bill as fol
lows: Lincoln, June 30, 1871.
State of Nebraska to S. Cooper, Dr.
To 1510 pounds of ice furnished for
the use of the Constitutional Conven
tion. $15.00. Received payment,
S. COOPER.
Approved June 30. 1871.
WM. H. JAMES,
Secretary of State.
Mr. MAJORS. I move that the ac
count be allowed.
The motion was agreed to.
Resolutions.
Mr. BOYD. Mr. President, I have
a resolution I wish to offer.
The Secretary read the resolution
as follows:
RESOLVED: That the Register
and Receiver of the Dacotah land
district, be and are hereby request
ed to with-hold from private entry,
all lands selected as Agricultural
College lands, in the manner indicat
ed in this communication, until the

agent of the State shall have an op
portunity to perfect such selections.
Mr. PRICE. I understand by this
communication that there is eighty
four thousand acres remaining yet
of the selection not entered. I move
the adoption of the resolution and
that the clerk be requested to trans
mit a copy of it.
Mr. MASON. I would ask if the
clerk there has any power to do this?
Mr. ESTABROOK. It will appear
that he has from his offer.'
Mr. SPEICE. Mr. President, It
seems to me that a request of this
kind would be putting this Conven
tion in a very awkward position. If
these are government lands, I do not
see how the register of the land of
fice can refuse to allow any man the
privilege of making an entry or fil
ing. If they are not government
lands , if they already belong to the
State, then there is no necessity for
action of this character on the part
of this body. If I was persuaded
that action of this kind on the part of
this body would save to the State
84,000 acres of land, although it
might be a little work. I think it
would be wise for us to take such ac
tion; but I cannot see how we are go
ing to save these lands to the State if
they are really government lands.
Mr. McCANN. Mr. President, The
land officers at the Dacota office have
been doing only what they were in
structed to do long since by the de
partment. These lands have been
selected and checked off on their
plats, and by circular addressed to
the different land offices of this State,'
it became the duty of these officers
to hold those lands. It is true these

250

AGRICULTURAL COLLEGE LANDS

Friday]

CAMPBELL-MCCANN— SPEICE

[June 30

officers have been expecting to re
ceive fees, that was under a misappre
hension of the law; they are not en
titled to fees for lands selected for
Agricultural College purposes, it is
so expressly provided, that they shall
receive fees in all cases except lands
for Agricultural College purposes.
They have been performing that duty
for a year past, and I trust they will
perform that duty until not only the
84,000 acres are secured to the
State, but 90,000 acres to which we
are entitled.
Mr. CAMPBELL. There seems to
be a misapprehension in this matter.
The State appropriated money to pay
for the selection of these lands. Now,
I would like to know what is the
right state of this matter. It seems
that the officers declare they will
save these lands if the land office
fees are paid. This register and re
ceiver throw the responsibility on
the State officers; the State officers
throw it on the Legislature, that
they did not pay for it, the land of
ficers say the State officers had not
selected them, nor taken the proper
steps to have them selected. I
would like to find out who is in the
wrong in this matter.
Mr. McCANN. Mr. President, It
is true, as my colleague (Mr. Camp
bell) stated, that the last Legislature
appropriated 2,500 dollars to pay
these fees, but the last Legislature
were laboring under the impression
that these fees had been paid, in or
der to secure these lands to the State.
That was not and is not true. That
appropriation has not been disbursed
by the Auditor and Treasurer, and I
am assured by the Auditor that no

warrant on that fund will be drawn
now, as we have already before this
Convention, the statement of the
proper authorities, that these selec
tions were made, and as I said be
fore, have been checked off on the
plats in that district, and no one of
these selections ought ever to have
been entered by any other party.
This Convention has already commu
nicated the steps necessary to secure
these lands to the State and I hope
this resolution will pass, that we may
omit the performance of no one duty,
or the taking of any step necessary
to secure these lands to the Agricul
tural College fund. We can do noth -
ing more, we are not a Legislative
body, and if we were, with this
knowledge before us, we would not
appropriate a cent to secure lands
which are already ours, without the
payment of any fee whatever.
Mr. SPEICE. I would enquire
whether a resolution did not pass
here offered by the gentleman from
Douglas (Mr. Boyd), to the effect
that this body made enquiry in re
gard to these same lands this resolu
tion pertains to. If the resolution
passed, what has become of it?
Mr. ESTABROOK. That resolu
tion was offered by me and not Mr.
Boyd. Mr. SPEICE. I would enquire if
that resolution does not meet the
whole case. ,
Mr. ESTABROOK. Oh, no. That
was merely precautionary.
The PRESIDENT. The question is
on the adoption of the resolution.
The motion was agreed • to.

NEWSPAPERS— ADJOURNMENT

251

Tuesday]

WILSON— MYERS— FIFIELD

[July 11

Newspapers.
Mr. WILSON. I move that the
Secretary be instructed to have our
newspapers stopped from the time we
adjourn until the 11th of July.
Mr. GRENELL. I believe it has
been customary to stop papers, they
no doubt know we adjourn.
The motion was agreed to.
Adjournment.
Mr. MYERS. Mr. President, I
move that we do now adjourn.
The ayes and nays were demanded.
The Secretary called the roll and
the President announced the result.
["Ayes" 26, "nays" 20, as follows:]

AYES — 26

Ballard,

Myers,

Campbell,

Neligh,

Curtis,

Newsom,

Eaton,

Price,

Estabrook,

Robinson,

Gibbs,

Scofield,

Granger,

Shaft,

Griggs,

Speice,

Hascall,

Stevenson,

Kenaston,

Thummel,

Kilburn,

Thomas,

McCann,

Tisdel,

Mason,

Wilson,

NAYS — 20

Abbott,

Majors,

Boyd,

Manderson,

Cassell,

Maxwell,

Grenell,

Moore,

Griggs,

Philpott,

Hinman,

Reynolds,

Kirkpatrick,

Sprague,

Lake,

Vifquain,

Ley,

Wakeley,

Lyon,

Woolworth

ABSENT

OR NOT VOTII1

Parchen,

Towle,

Parker,

Weaver,

Stewart,

And the

Convention (a

o'clock and forty-five minutes) ad
journed.

SIXTEENTH DAY.
Tuesday, July 11th, 1871.
The Convention met at 2 o'clock
P. M. Prayer.
Prayer was offered by the Chap
lain, as follows:
O Thou, the Great Preserver of
State and of men. we thank Thee for
the good providence that gives to us
the privileges of this day. We than1.':
Thee for this new year of our Na
tion's life. May it be a year of
abounding prosperity in all that gives
sound and healthful growth; even a
year of triumph for religion, liberty
and law, through Jesus Christ our
Lord. Amen. Leave of Absence.
Mr.HINMAN - asked leave of ab
sence for Mr. Abbott, in consequence
of sickness.
Mr. REYNOLDS asked leave of ab
sence for Mr. Parker, for the remain
der of the week.
The PRESIDENT asked leave of
absence for Mr. Grenell.
Communications.
The Secretary read the following
communications :
Department of the Interior,
General Land Office,
Washington, D. C,
January 29, 1871.
L. L. Holbrook, Esq.,
Secty. Neb. Const. Convention,
Lincoln, Neb.
Sir. —
Referring to yours of 22d inst.,
relative to State selections for Agric.
Colleges in Dakota City Land Dist.

252

STATE LANDS— ENGROSSING CLERK

Tuesday]

M AX WELL-ES T A BROOK

[July 11

I reply that I have this day directed
the land offices to report the selec
tions to this office and make no fur
ther disposition of the lands.
Very respectfully,
WILLIS DRUMMOND, Commissioner.
Department of the Interior,
Washington, D. C,
June 28th, 1871.
Sir. —
I am directed by the Secretary of
the Interior to acknowledge the re
ceipt of your lettter of the 2 2d ins
tant inclosing report of Committee
on Education, etc., and to inform you
that the same has, with the inclosure,
been referred to the Commissioner
of the General Land Office.
Very respectfully, your
obedient servant,
J. L. DELANO,
Chief Clerk.
L. L. Holbrook, Esq.,
Secy. Neb. Constitutional Conven
tion, Lincoln, Nebraska.
Unfinished Business.
The Secretary read the following
resolution: RESOLVED: That the Convention
do now proceed to the election of an
enrolling and engrossing clerk, who
shall do such duties as shall be pre
scribed by 'the President.
Mr. MAXWELL. I think it is un
necessary yet to proceed to make
such appointments. I do not think
there is anything for an engrossing
clerk to do. We do not need such a
person until an article is completed.
Mr. ESTABROOK. As I under
stood it this resolution was super
seded by. another resolution, by vir
tue of which the President was em-
powe'red to employ what clerical
labor he thought necessary.
The PRESIDENT. It was postpon
ed and now comes up in its order.

Mr. KIRKPATRIQK. I under
stood this matter was disposed of by
authority granted to the President
by the Convention, to employ the
necessary clerical assistance.
Mr. CAMPBELL. That certainly
was my understanding.
Mr. ESTABROOK. To dispose of
this matter, I move that it be laid on
the table.
Motion agreed to NEM. CON.
Reports of Committees.
Mr. ESTABROOK. I would like to
state that I have received a large
number of communications, in re
sponse to the circular we sent out to
the different Treasurers, and I desire
to meet the Committee on Education,
School Funds and Lands immediately
on the adjournment of the Conven
tion this afternoon.
The PRESIDENT. The report of
the Committee on Education, School
Funds and Lands will be read by
its title, unless some gentleman de
sires it read.
The Secretary reads "Report of
the Committee on Education, School
Funds and Lands."
The PRESIDENT. First reading
of the Report.
The Secretary reads the report
again by title.
The PRESIDENT. Second reading
of the report.
Mr. ESTABROOK. Mr. President,
unless some gentleman will suggest
something that may be profitable, I
move that we adjourn in order that
the Committees may go to work and
be ready to go on with the work to
morrow morning.
Mr. HASCALL. We have plenty

SCHOOL LANDS AND FUNDS

253

Tuesday]

GRAY-NEWSOM -ESTABROOK

[July 11

of work, to do. I find my desk full
of reports of Committees, all want
ing to be acted upon. I think after
resting ten or twelve days we should
be ready to go to work at once, I am
opposed to the adjournment.
Mr. GRAY. Mr. President. I
move that we go into Committee of
the Whole upon the report of the
Committee on Schools.
The PRESIDENT. Gentlemen, you
hear the motion of the gentleman
from Dodge — to go into the Commit
tee of the Whole upon the report of
the Committee on Education, School
Funds and Lands.
The Convention divided and the
motion was agreed to.
So the Convention went into Com
mittee of the Whols, Mr. Stewart in
the Chair.
The CHAIRMAN. Gentlemen of
the Committee, you have before you
the report of the Committee on Edu
cation, School Funds and Lands.
Mr. NEWSOM. Mr. Chairman,
this report has come into my posses
sion within the last hour, and I have
had no time to consider it. I believe
the report of the Committee was not
printed until after the adjournment;
therefore, I move the Committee rise,
report progress, and ask leave to sit
again. - Mr. ESTABROOK. Mr. Chair
man, I think the report might be read
over now by the Secretary. We will
gain some knowledge of it in that
way. Mr. NEWSOM. Mr. Chairman, I
withdraw my motioh.
The Secretary read the report as
follows: Report of the Committee on Edu

cation, School Funds and Lands.
By E. ESTABROOK, Chairman.
Mr. President:
Section 1. The educational and
school funds and lands of this State,
shall be under the control and man
agement of the Legislature.
Sec. 2. All lands, money or other
property granted or bequeathed, or
in any manner conveyed to this
State for educational purposes, shall
be used and expended in accordance
with the terms of such grant, bequest
or conveyance.
Sec. 3. The following are hereby
declared to be perpetual funds for
common school purposes, of which
the annual interest or income only
can be appropriated, to wit:
First, Such per centum as has
been or may hereafter be granted by
Congress on the sale of lands in this
State. Second, All moneys arising from
the sale or leasing of the sixteenth
and thirty-sixth sections in each
township of this State, and the lands
selected, or that may be selected, in
lieu thereof.
Third, The proceeds of all lands
that have been or may hereafter be
granted to this State where, by the
terms and conditions of such grant,
the same are not to be otherwise ap
propriated. Fourth, The net proceeds of land*
and other property and effects, that
mav accrue to the State by escheat
or forfeiture, or from unclaimed div
idends or distributive shares of the
estates of deseeased persons.
Fifth, All moneys, stocks, bonds,
lands and other property now belong
ing to the common school fund.
Sixth, All other grants, gifts and
devises that have been or may here
after be made to this State, and not
otherwise appropriated by the terms
of the grant, gift or devise, the inter
est 6f which said funds, together with
all rents of unsold school lands; and

254

SCHOOL LANDS AND FUNDS

Tuesday]

[July 11

such other means as the Legislature
may provide, shall be exclusively ap
plied to the following objects, to wit:
(1.) To the support and mainten
ance of common schools in each
school district in the State, and the
purchase of suitable libraries and ap
paratus therefor.
(2.) Any residue of such funds
shall be appropriated to the support
and maintenance of academies and
normal schools, and schools of an in
termediate grade between the com
mon schools and the University, and
the purchase of suitable libraries and
apparatus therefor.
Sec. 4. The Legislature shall re
quire by law that every child of suf
ficient mental and physical ability,
between the ages of six and sixteen
years, unless educated by other
means , shall attend a public school
supported by the common school
fund, for some definite length of time
each year, to be fixed by law, and
may establish schools for the safe
keeping, education, employment and
reformation of all children of such
age who are destitute of proper par
ental care, or who are growing up in
mendicancy, ignorance, idleness or
vice, which schools shall constitute a
part of the system of common
schools. Sec. 5. The Legislature shall
provide by law for the establishment
of district schools, which shall be as
nearly uniform as practicable, and
such schools shall be free and with
out charge for tuition, to all children
between the ages of five and twenty-
one years.
Sec. 6. Provision shall be made
by law for the equal distribution of
the income of the fund set apart for
the support of common schools,
among the several school districts
of the State, in some just proportion
to the number of children and youth
resident therein between the ages of
five and twenty-one years, and no ap
propriation shall be made from said
fund to any district for the year in

which a school shall not be maintain
ed at least three months.
Sec. 7. No University lands, Ag
ricultural College lands, common
school lands, or other lands which
are now held or which hereafter may
be acquired by the State for educa
tional purposes, shall be sold for less
than seven dollars per acre.
Sec. 8. All funds belonging to the
State for educational purposes, the
interest and income whereof only
are to be used, shall be deemed trust
funds held by the State as trustee,
and the State shall supply all losses
thereof that may in any manner oc
cur, so that the same shall remain
forever inviolate and undiminished;
and such funds, with the interest
and income thereof, are hereby sol
emnly pledged for the purposes for
which they are granted and set apart,
and shall not be transferred to any
other fund for other use.
Sec. 9. The location of the Uni
versity and Agricultural College at
the Capital of the State, as already
established by existing laws, is here
by sanctioned and confirmed, and
said institution is hereby declared to
be the University and Agricultural
College of this state; Provided, that
other Agricultural Colleges and ex
perimental farms may be established
by the Legislature when the wants
of the people may so require.
Sec1. 10. Schools for the benefit of
the deaf, dumb or blind shall be fos
tered and supported.
Sec. 11. The superintendent of
public instruction, secretary of state,
treasurer and attorney general shall
constitute a board of commissioners
for the sale, leasing and general man
agement of all lands and funds set
apart for educational purposes, and
for the investment of school funds,
in such manner as may be provided
by law. The superintendent of pub
lic instruction shall be the presiding
officer of the board. Any three mem
bers shall constitute a quorum. Such
board shall also have the general

SCHOOL LANDS AND FUNDS

255

Wednesday]

NEWSOM-STEW ART— McCANN

[July 12

management and control of the af
fairs of the state normal schools,
and the state university and agri
cultural college, and shall take the
place and do the duties of regents
of said institutions. Such board
shall also have the general supervis
ion of public instruction in the state.
Sec. 12. No sectarian instruction
shall be allowed in any school or in
stitution supported by the public
funds set apart for educational pur
poses. Mr. NEWSOM. Mr. Chairman, I
renew my motion that the Convention
rise, report progress and ask leave
to sit again.
Motion agreed to.
Mr. STEWART. Mr. President,
The Committee of the Whole have
had under consideration the report
of the Committee on Education,
School Funds and Lands, and have
instructed me to report progress and
ask leave to sit again.
Mr. McCANN. Mr. President, I
move that the Convention do now
adjourn until to-morrow morning at
9 o'clock. Mr. CAMPBELL. Mr. President,
I think it would be better to make
this report the special order of busi
ness for 9 o'clock to-morrow morn
ing. Mr. HASCALL. Mr. President, I
hope this report will not be made
the special order of business at our
hour of meeting, because I think it
is our duty to take up the reports we
have already been acting upon.
Mr. CAMPBELL. Mr. President,
The Chairman of the Committee on
Bill of Rights will not be here until
Wednesday or Thursday.
The PRESIDENT. The question
is on the motion to adjourn until 9

o'clock to-morrow.
Mr. CASSELL. Mr. President, I
move to amend until 10 o'clock.
Mr. McCANN. I wish to remind
the gentleman that it is time for us
to go to work. I don't object to the
adjournment of this afternoon but I
do think we should meet at 9 o'clock.
Mr. WEAVER. I move to amend
by saying 8 o'clock instead of 10.
The PRESIDENT. The question is
on the motion of Mr. Weaver, to ad
journ until 8 o'clock.
Mr. ESTABROOK. Mr. President,
I rise to a point of order. The long
est time must be put first.
The PRESIDENT. The question is
upon the motion of the gentleman
from Lancaster (Mr. Cassell) to ad
journ until to-morrow morning at
10 o'clock.
The motion was not agreed to.
The PRESIDENT. The question is
on the motion to adjourn until 9
o'clock. The Convention divided and the
motion was agreed to.
So the Convention (at two o'clock
and thirty-three minutes) adjourned.

SEVENTEENTH DAY.
Wednesday, July 12th, 1871.
The Convention met at nine
o'clock, and was called to order by
the President. Prayer.
Prayer was offered by the Chap
lain, Rev. L. B. Fifield, as follows:
Most high mighty and merciful
One; bless us this day; deliver us
from evil; make us wise unto truth.
Permit not that we feed upon ashes.

256

REPORT ON STATE LANDS

Wednesday]

VIFQUAIN— ESTABROOK

[July 12

Show unto us the bread of life. Grant
peace to our people, even peace and
safety to all the people, we pray.
Amen. Leave of Absence.
Mr. PHILPOTT. Mr. President, I
. ask leave of absence for Mr. Robin
son and Mr. Cassell until to-morrow
morning. Leave granted.
Mr. CAMPBELL. Mr. President,
I ask leave of absence for Mr. Mason
until to-morrow morning.
Leave granted.
Mr. WILSON. Mr. President, I
ask leave of absence for Mr. Eaton
until to-morrow morning.
Leave granted.
Reading of the Journal.
The journal of last day was read
and approved.
Report of Standing Committee.
Mr. ESTABROOK. Mr. President,
the Committee on Education have a
report, which will be presented by
one of the members of that Commit
tee — General Vifquain.
The Secretary read the report, as
follows: PRESIDENT CONSTITUTIONAL
CONVENTION.Sir: Your Committee on Education and
School Lands has the honor to report
that after comparing the returns of
several County Treasurers with the
report made to this Convention by the
State Auditor, we find that in seven
counties, the difference against the
Auditor's report is to the amount
1,498 acres, at an average price of
$8.16 per acre, or $12,253.68 against
the school fund; and taking this as an
average of the little mistakes that
have been made, the school fund so
far. including sales made previous to
1871 only, should be short of 8,700
acres, or not less than $70,000; fur

thermore the interest paid on the
sales on school lands during 1867,
1868, 1869, and 1870, as reported by
the Auditor amounts to $106,839.61;
when taking it all together from the
first sales made up to Jan. 1st, 1871,
it should amount to at least $250,-
000.00, making again a little differ
ence of about $149,000 against the
school fund. We are unable to find
where the mistakes are made, and we
earnestly suggest that this Conven
tion will so secure the funds, so as to
prevent any further oversights.
We will also report that the
amount of school lands in the State,
will approximate just about 3,000,-
000 acres of land. Submitted by,
VICTOR VIFQUAIN.
Appendix.
In Douglas county difference
against the school fund acres 120
Burt county, difference, acres 980
Cedar county, difference, acres 820,
Hall county, difference in favor of
Auditor, acres 2169; Colfax county
they agree, Dacota county, against
the State, acres 360; Washington
county, in favor of Auditor, acres
860. Mr. ESTABROOK. Mr. President,
I presume that report will be printed.
The PRESIDENT. No objection
being made the usual number of cop
ies will be ordered printed.
Resolutions.
Mr. VIFQUAIN. Mr. President, I
offer a resolution.
The Secretary read the resolution,
as follows:
RESOLVED: That this Conven
tion take pleasure in granting the
privilege of this floor to General
John M. Thayer.
Mr. VIFQUAIN. Mr. President, I
move the adoption of the resolu-
ion. Motion agreed to.

EDUCATIONAL BEQUESTS TO STATE

257

Wednesday]

McCANN— NEWSOM— ESTABROOK

[July 12

Committee of the Whole.
Mr. McCANN. Mr. President, I
move that this Convention now re
solve itself into Committee of the
Whole, for the purpose of considering
the report of the Committee on Edu
cation. Motion agreed to.
So the Convention went into Com
mittee of the Whole, with Mr.
Stewart in the Chair.
The CHAIRMAN. Gentlemen of
the Convention; we have now under
consideration the report of the Com
mittee on Education. The report has
been read by the Secretary, and is
now ready to be considered by sec
tions. The Secretary will read the
first section.
The first section is read by the
Secretary as follows:
Sec. 1. The Educational and School
Funds and Lands of this State, shall
be under the control and manage
ment of the Legislature.
The CHAIRMAN. Gentlemen,
what shall be done with the section?
If there is no objection it will be
considered adopted — It is adopted.
The Secretary will read the second
section. The Secretary read the second sec
tion as follows:
Sec. 2. All lands, money or other
property granted or bequeathed, or
in any manner conveyed to this State
for educational purposes, shall be
used and expended in accordance
with the terms of such grant, be
quest, or conveyance.
Mr. NEWSOM. I desire to amend
that section. My object is this; I
do not believe it is the purpose of this
Convention or any member of it to
advocate sectarian ideas, and I be
lieve, under the provisions of that
17

section, it may be possible to make
the State the educator of sectarian
views. "All lands, money or other
property granted or bequeathed, or
in any manner conveyed to this State
for educational purposes, shall be
used and expended in accordance
with the terms of such grant, be
quest, or conveyance." That is the
way the section reads. I believe it
will be possible that a sect
should grant to the State money to be
used in a specific way, and I take it
for granted the State would become
the agent of this party, for the edu
cation of children for certain denomi
nations. I do not believe it was the
intention of the Committee to make
this mistake. I move to strike out
the words "or in any manner convey
ed to this State, for educational pur
poses.". Mr. ESTABROOK. Mr. Chairman,
I would call the attention of the gen
tleman to section 12 of this report,
which reads — -
Mr. NEWSOM. Section 12 fixes this
matter so far as public funds are
concerned, but it does not apply to
money conveyed to the State.
Mr. HASCALL. Mr. Chairman,
the objection the gentleman raised to
the section could be obviated by strik
ing out the latter part of the section
so that it would read as follows:
"Shall be used and expended" for
that purpose.
Mr. ESTABROOK. It strikes me,
Mr. Chairman, that is just exactly
what it says now. "All lands, money
or other property granted or be
queathed, or in any manner conveyed
to this State for educational pur
poses, shall be used and expended in

258

SECTARIAN EDUCATION BY STATE

Wednesday]

HASCALL— NEWS.OM-McCANN

[July 12

accordance with the terms of such
grant, bequest or conveyance." It is
only when conveyed for educational
purposes that the section applies; and
then the grant is to be employed for
that purpose.
Mr. HASCALL. Mr. Chairman, I
do not understand that it would
mean the same; there might be con
ditions in the grant that the State
might ignore if the words "terms of
such grant bequest or conveyance"
were stricken out.
Mr. ESTABROOK. Let me inquire
of my colleague (Mr. Hascall) if he
does not think the 12 th section does
not fully guard against this objec
tion? Mr. HASCALL. My attention had
not been directed to that section un
til now. I believe it does.
Mr. NEWSOM. I move Mr. Chair
man, to strike out the second section
and insert my amendment as a sub
stitute. Mr. KIRKPATRICK. How would
the amendment read?
The Secretary read the substitute
as follows:
All lands, moneys, or other proper
ty donated, granted or received for
school, college, seminary or univer
sity purposes and the proceeds there
of shall be faithfully applied to the
objects for which such gifts or grants
were ' made.
Mr. NEWSOM. The difficulty in
my mind is that the section might
make the State the instrument for
the education of sectarian views. For
instance, a Presbyterian may desire
to bequeath his property for the ed
ucation of the children of the land in
Presbyterian views. He, under this
section, bequeathes his property to

the State, and by that the State be
comes the agent of such sectarian
education. My object is to allow a
man to bequeath his property as he
chooses; but do not let us make the
State the educator of sectarian views.
Mr. McCAlNTN. Mr. Chairman, I
can hardly conceive of a case arising
that will meet the objection of my
colleague (Mr. Newsom,) we have-in
this State, as in other States, differ
ent denominational colleges, such as
Baptists, Congregationalists, and etc.,
I do not believe that such bequests
as that referred to would be made to
the State but that they would be
made to the denominational institu
tions. I have no fear of such be
quests being made in the history of
our State, or of this Constitution at
least. We know that such bequests
are frequently made, but they are in
variably made to the denomination
represented, and not to the State. I
like the section as it is. I have no
objection to the gentleman's amend
ment, but I do not believe it is nec
essary. If the State accepts, it
should be applied for the purposes
for which it is bequeathed.
Mr. SPRAGUE. Mr. Chairman, I
cannot for the life of me see any
difference between the section as it
stands and the amendment pro
posed. If the State accepts a be
quest it must accept it for the pur
pose made, and the State can only
apply it for that purpose. Hence I
see no object in adopting the substi
tute. Mr. TOWLE. I would ask the gen
tleman from Otoe (Mr. Newsom) if
that substitute is not almost the
same language as that in the section?

SECTARIAN EDUCATION BY STATE

259

Wednesday]

NEWSOM-TOWLE

[July 12

Mr. NEWSOM. No sir. The sec
tion provides that money may be be
queathed or conveyed to the State,
and so make the State a party in
carrying out sectarian views; but the
amendment does not make the State
a party. Mr. TOWLE. Mr. President. I
cannot see much difference between
the section as it now stands and the
the section offered by the gentleman
from Otoe (Mr. Newsom), but it
appears to me that the section should
stand as reported by the Committee.
The language as it is in this section
2, and as used by the Committee
may not go far enough; may not
reach and cover ground enough; yet
if specific bequests are made they, will
stand under the general laws, and
can be applied and used only accord
ing to the specific terms of the be
quest, will or conveyance which
makes a grant to any religion, or any
school association. It was suggested
by the gentleman from Otoe (Mr.
McCann,) it is usual and customary
in all cases where individuals desire
to bequeath money to religious de
nominations, to bequeath it directly
and specifically to them, they having
corporate existence, having trust
deeds; and the executors or other rep
resentatives of that person's estate,
if they find out, or it comes to their
knowledge that the exact terms are
not being carried out, it can be stop
ped. I understand this, where money
is to be bequeathed to the State Uni
versity, where it shall be given to
any other State Institution, agricul
tural college, or other universities
that may be established hereafter,
when money is given to one, it can
be applied only to that college and

cannot be turned into any other fund.
For instance, in our own university,
if some individual should die wealthy
and should be desirous of bequeath
ing a sum of money for the law part
of the university, the object is, that
that money could not be applied to
the building up of any professorship,
excepting the professorship of law.
We find in other States that money is
left for enlarging one individual
branch of different colleges; placing
them in a position where they can
compete with other colleges, in medi
cine, law or any other knowledge. I
take it that the section should stand;
that it was placed in there for that
very identical and specific purpose —
that where an individual had his
heart and soul set upon it, and grant
ing to a certain university a corps of
professors, if he wished to stimulate
the growth of any one certain branch
of knowledge in this State — it should
be carried out in that direction and
in that particular, and should be
charged to no other particular what
ever. And if the State is not in a
condition, or if the amount is not suf
ficient, and it shall revert back to the
original donor, or be allowed to ac
cumulate until it is sufficient to ac
complish the purpose desired, it only
tells to the State and Legislature that
this individual is anxious that for
this specific purpose this money
should go; and that the Legislature
should not have power to divert it in
any other direction, than was the will
and wish of the man who gives the
money for this purpose. I think
this section should stand. I believe
the section should stand to guard ir
revocably the intention of the will of

260

EDUCATIONAL BEQUESTS TO STATE

Wednesday]

HASCALL— KIRKPATRICK— ESTABROOK

[July 12

the person who has bequeathed prop
erty. Mr. HASCALL. Mr. President, I
,i believe this amendment should be
adopted entire, to guard the State
against sectarian schools. I shall vote
in favor of the amendment because I
believe the language of the proposed
amendment is better and clearer and
will place the matter in a better light
than the original report. In refer
ring to the Illinois Constitution un
der the head of education, I find the
proposed amendment is an exact copy
of section two, which reads "all
lands, moneys or other property, do
nated, granted or received for school,
college, seminary or university pur
poses, and the proceeds thereof, shall
be faithfully applied to the objects
for which such gifts or grants were
made". If that section is adopted
there can be no debate as to the in
tention of the Constitution upon the
point. The only objection that
seems to apply to this section, as re
ported, is this, "that it shall be ex
pended in accordance with the terms
of such grant, bequest or convey
ance." There might be conditions or
terms attached to the . grant, that if
this section remained here, would
leave the argument that the donors
might claim should be carried out to
the letter, and it might be repugnant
to the intention and spirit of the Con
stitution, therefore I see no objection
to substitute the proposed amend
ment for the section as reported, and
that leaves it without any doubt as to
its meaning or effect.
Mr. KIRKPATRICK. I like the
substitute of the gentleman better
than the original provision, and after
all, I am not sure that either of them

are right. If I understand the. mat
ter I suppose the intention of sec
tion two is that the objects of the
donor should be carried out rigidly
according to the terms made.
Mr. ESTABROOK. If any thing
better can be offered than any sec
tion, I hope it will be adopted, be
cause what I desire is to get the very
best schools that can be conceived.
This report covers the entire ground
and is more comprehensive in its
terms. Moreover, it seems to me, it
covers much more ground in less
words, because in the terms of the
Article proposed,, which has been
copied, and it seems we cannot get
on without the 111. Constitution —
that which has been copied from the
Illinois Constitution, confines the ap
plication exclusively to certain kinds
of grants or bequests. It does not
cover the entire ground of all con
veyances made for additional pur
poses as does the second section, but
speaks only of such grants or be
quests as may have been made for
certain specific objects. "Section 2.
All lands, moneys or other property
granted or bequeathed, or in any
manner conveyed to this State for
educational purposes, shall be used
and expended in accordance with the
terms of such grant, bequest or con
veyance." It seems as though it cov
ered all kinds of education. Is it not
more elegant? Is it not neater
phraseology? The only difference I
can see is "and the proceeds thereof
shall be faithfully applied to the ob
jects, etc." It says it shall be used In
accordance with the terms of such
grant. Are we going to tinker up
this Article without any substantial

SECTARIAN BEQUESTS TO STATE

261

Wednesday]

MAXWELL— NEWSOM

[July 12

reason? One portion is made and
dovetailed into the other, and subse
quent portions are made with respect
to former portions. It seems to me
that all to be desired is accomplish
ed by this. It provides that all land
and money bequeathed shall be ap
plied in accordance with the terms
of the grant. You cannot take uni
versity grants for agricultural col
lege purposes, nor agricultural col
lege money for common schools. Un
der this an individual may make a
bequest of land or other property for
the benefit of the deaf and dumb.
It provides simply that the fund be
stowed should be expended for the
uses and purposes of the education
of the deaf and dumb, not agricultur
al college nor common schools; sim
ply for the purpose named in the
grant. This is accomplished here.
The gentleman from Otoe (Mr. New
som) seems to be in great fear and
apprehension that some sort of sec
tarian instruction can be imparted
under the provision of this Article.
If a man makes a bequest and the
State receives it, it is received in ac
cordance with the terms of the Con
stitution and . under it it would be
impossible, so the courts would de
termine. The State cannot receive
a grant that can be used for any kind
of sectarian purpose, because the last
section of the Article says not. If
a man wishes to make a bequest for
a sectarian purpose, it should be
made to the sect, under the pro
vision. The State could not use it.
Mr. MAXWELL. Mr. Chairman,
In reading the second and third sec
tions it seems to me there is more
language used than is necessary. It

could have been conveyed better in
one section; and I offer this substi
tute for both sections:
The proceeds from the sales of all
lands that have been or hereafter
may be granted by the United States
to the State for educational purposes,
and the proceeds of all lands or other
property given by individuals or ap
propriated by the State for like pur
poses shall be and remain a perpetual
fund, the interest and income of
which together with the rents of all
such lands as may remain unsold,
shall be inviolately appropriated and
annually applied to the specific ob
jects of the original gift, grant or
appropriation. The CHAIRMAN. We have not
arrived at the third section yet.
Mr. MAXWELL. But I have the
right to make a motion embracing
the two in one.
The CHAIRMAN. Perhaps the
gentleman from Otoe (Mr. Newsom)
will accept this amendment.
The Secretary read the amend
ment of Mr. Maxwell again.
Mr. NEWSOM. If the gentleman
from Cass (Mr. Maxwell) will with
draw his amendment for a moment
I will withdraw mine, and offer this
instead: All lands, money or other property
granted or bequeathed for education
al purposes shall be used and ex
pended in accordance with tho terms
of such grant, bequest or convey
ance. Provided, the State shall not re
ceive any lands, money or other prop
erty for sectarian purposes.
Mr. MAXWELL. I am willing that
a provision of that kind be inserted
in the Constitution, but I think this
is not the proper place to do that.
We are now providing for who shall
be custodians of the school funds.
In the proper place I will favor the

262

MAXWELL'S SUBSTITUTE

Wednesday I

ESTABROOK— MAXWELL

[July 12

amendment of my friend from Otoe
(Mr. Newsom.)
Mr. ESTABROOK. Will the gentle
man from Cass (Mr. Maxwell) allow
me to call his attention to section
eight, and ask him if the ground is
not essentially covered?
Mr. MAXWELL. I understand
that in preparing the Constitution
we are preparing a code of principles,
and there is danger in embracing too
much. Now, this substitute I offer
covers the ground, and provides what
shall be done with funds and other
property. Section two and three
reads and its subdivisions read thus:
Sec. 2. All lands, money or other
property granted or bequeathed, or
in any manner conveyed to this State
for educational purposes, shall be
used and expended in accordance
with the terms of such grant, bequest
or conveyance.
Sec. 3. The following are hereby
declared to be perpetual funds for
common school purposes, of which
the annual interest or income only
can be appropriated, to-wit:
First, such per centum as has
or may hereafter be granted by Con
gress on the sale of lands in this
State. Second, All moneys arising from
the sale or leasing of the sixteenth
and thirty-sixth sections in each
township of this State, and the lands
selected, or that may be selected, in
lieu thereof.
Third, The proceeds of all lands
that have been or may hereafter be
granted to this State where, by the
terms and conditions of such grant,
the same are not to be otherwise ap
propriated. Fourth, The net proceeds of lands
and other property and effects, that
may accrue to the State by escheat
or forfeiture, or from unclaimed divi
dends or distributive shares of the
estates of deceased persons.
Fifth, All moneys, stocks, bonds,

lands and other property now belong
ing to the common school fund.
Sixth, All other grants, gifts and
devises that have been or may here
after be made to this State, and not
otherwise, appropriated by the terms
of the grant, gift or devise, the
interest of which said funds, together
with all rents of the unsold school
lands, and such other means as the
Legislature may provide, shall be
exclusively applied to the following
objects, to-wit:
(1.) To the support and main
tenance of common schools in each
school district in the State and the
purchase of suitable libraries and
apparatus therefor.
(2.) Any residue of such funds shall
be appropriated to the support and
maintenance of academies and nor
mal schools, and schools of an inter
mediate grade, between the common
schools and the University, and the
purchase of suitable libraries and
apparatus therefor.
Now I submit, Mr. Chairman, that
that language is too broad. What
does this mean? Any residue of such
funds which may be appropriated
"to the support and maintenance of
common schools in each school dis
trict in the State and the purchase of
suitable libraries and apparatus
therefor." This land is granted for
the purpose, as we suppose, of main
taining common schools. The State
holds the funds, and causes them
to be distributed throughout the
State. Now, this goes on, and after
providing for this says "any residue."
What residue? Where is the divid
ing line? "To the support and main
tenance of academies and normal
schools, and schools of an intermedi
ate grade between the common
schools and the" university, and the
purchase of suitable libraries and ap
paratus therefor." It might, in-

EDUCATIONAL BEQUESTS TO STATE

263

Wednesday]

MAXWELL— NEWSOM— LAKE

[July 12

stead of making the Constitution
clear make it so as to be misunder
stood. I think the amendment is
short, and fully covers the ground.
There is no mistaking its language.
Mr. ESTABROOK. Let me ask the
gentleman supposing a grant is made
where the terms are not specified,
but simply in general terms?
Mr. MAXWELL. A grant made to
any particular fund?
Mr. ESTABROOK. No particular
fund or there is no heir to take a
distributive share?
Mr. MAXWELL. I submit that in
all cases of that kind the Constitu
tion should provide what shall be
done with the property that reverts
to the State, and what would be done
in case a grant was made to the State
but to no particular fund. But if
the grant be made to a particular
fund then the grant or gift is to be
applied to that particular fund.
Mr. ESTABROOK. The gentleman
will see, by sub-division three of sec
tion three, provision is made there;
and he proposes to blot all that out,
and makes no provision for this,
whereas it is made in sub-division
three. Mr. MAXWELL. I would propose
to provide for this in an independ
ent section. . We are providing now
simply for what shall be done with
the proceeds of the property held by
the State. It seems to me these two
sections may be united in one, and
the language be better, and thus
avoid repetition.
Mr. NEWSOM. I have no objec
tion, Mr. Chairman, to the idea pre
sented by the gentleman from Cass
<Mr. Maxwell); but I do not think

he goes far enough. I think the pro
visions of the bill, in other respects
do better than his substitute for my
amendment. I have no objection to
the maimer in which it is presented
except that I maintain you cannot
make the State a party to a secta
rian object. And that was the ob
ject of my amendment. I cannot
see any objection, particularly, to the
amendment of the gentleman from
Cass, but I do not think it covers the
bill as is is reported by the commit
tee; and I cannot accept the amend
ment. Mr. LAKE. Mr. Chairman, I have
listened to the objections which have
been made to the several sections
which have been under discussion
and have listened with the intention
of adopting that which appears to be
an improvement upon sections two
and three. But I must say they fall
far short of coming up to the require
ments of the Constitutional provis
ion we all desire to have engrafted in
the Constitution. It seems to me the
Article, as it now stands, is symmet
rical and expressive, by the words
which have been employed, and cov
ers the entire ground. What can be
better than this language: "Sec.
2. All lands, money or other prop
erty granted or bequeathed, or in
any manner conveyed to this State
for educational purposes, shall be
used and expended in accordance
with the terms of such grant, bequest
or conveyance." Now I think we
might tinker at this section as long as
we see fit, and fail to improve upon
that language. It includes every
kind of grant, bequest and convey
ance. It includes all grants made to

264

SECTARIAN EDUCATION BY STATE

Wednesday]

NEWSOM— LAKE

[July i2

this State for educational purposes.
In fact it includes every kind of con
veyance, bequest or grant which can
be conceived of. If the State accept
any grant which can be made under
the terms of this Article, as it shall
finally be submitted, then, unques
tionably, it ought to be used in ac
cordance with the terms of the con
veyance. The State should not prove
false to any of these bequests. Sec,
3 follows Sec. 2, as follows: "The
following are hereby declared to be
perpetual funds for school purposes,
of which the annual interest or in
come only, can be appropriated, to
wit:"' and then goes on to set forth
what shall be perpetual funds. I
think the two sections are about per
fect. I am glad to see that the gen
tleman from. Otoe (Mr. Newsom)
finds no particular fault with the sub
division of sec. 3, but what he de
sires may be attained by amending
Sec. 12, if that sec. is not already
sufficiently explicit.
Mr. NEWSOM. I would like to ask
the gentleman, if the language of this
section does not provide that the
State shall receive bequests, and
must not the money be used in ac
cordance with the terms of that be
quest? Mr. LAKE. I think that section
12- provides that no sectarian school
shall be maintained by public funds
set apart for educational purposes.
Now, I will not say that that section
is broad enough to cover all kinds
of bequests. What I was about to
suggest to the Committee, to obviate
the objection urged by the gentleman
from Otoe (Mr. Newsom) is to amend
section 12 so as to include what the

gentleman desires — that the State
shall not accept bequests tor sectar
ian purposes: That would cover the
entire ground, and obviate all the
difficulties that are urged on that
score. I do hope that these sections
— which have evidently received
careful attention, shall be not tamper
ed with, for the purpose of engrafting
the ideas just advanced. I think the
two sections are complete.
Mr. NEWSOM. Mr. Chairman, I
think my view is right.
Mr. LAKE. Let me ask the gen
tleman a question. Does he take the
ground that it is provided in this
section that the State shall not re
ceive a grant, intended by the person
making the bequest to be used for
sectarian purposes?
Mr. NEWSOM. No, sir.
Mr. LAKE. Then would it not be
well to amend section 12, so as to
bar the State from receiving such be
quests; would not the end he is striv
ing for, be attained?
Mr. NEWSOM. Yes, sir, but I see
no object in amending section 12 un
til we come to it. We should amend
section 2 now, and section 12 when
we come to it. Section 12 reads: "No
Sectarian instruction shall be allowed
in any school or institution supported
by the public funds set apart for edu
cational purposes," I understand that
to apply to the public funds of the
State, and not to any private funds
which may be donated to the State.
They must be provided for in some
other way.
Mr. HASCALL. Mr. Chairman, I
would like to ask how the proposed
amendment stands now?
The CHAIRMAN. The question is

MAXWELL'S SUBSTITUTE

265

Wednesday]

MAXWELL— BALLAJRD— LAKE

[July 12

upon the substitute offered by the
gentleman from Cass, (Mr. Maxwell.)
Mr. MAXWELL, (reads 3rd line
of third section) "First, such per
centum as has been or may hereaf
ter be granted by Congress on the
sale of lands in this State" I submit
that the language of that line is not
clear. There seems to be a question
as to what this means.
Mr. LAKE. We had a fund of
$17,000 once. It has reference to
that, no doubt.
Mr. MAXWELL (reads) "All
moneys arising from the sale or
leasing of the sixteenth and thirty-
sixth sections in each township of this
State, and the lands selected, or that
may be selected, in lieu thereof.
Third, the proceeds of all lands that
have been or may hereafter be grant-
er to this State where, by the terms
and conditions of such grant, the
same are not to be otherwise appro
priated." Now it does seem to me that that
ought to be embodied in a few words;
and I think, under the proposition
I offered, the language avoids any
repetition whatever. The language
is clear and precise. This is my
substitute. "The proceeds from the
sale of all lands that have been or
hereafter may be granted by the
United States to the State for educa
tional purposes, and the proceeds of
all lands or other property given by
individuals or appropriated by the
State for like purposes, shall be and
remain a perpetual fund, the interest
and income of which, together with
the rents of all such lands as may
remain unsold, shall be inviolably ap
propriated and annually applied to
the specific objects of the original
gift, grant or appropriation."

Mr. LAKE. I would like to ask
the gentleman if he intends his
amendment to include the 5 per cent
fund? Mr. MAXWELL. It does not.
Mr. BALLARD. Mr. Chairman. It
seems to me it is the duty of this
Convention to get up a Constitution
that shall be complete, so that our
work, when done, shall be well done,
— that there shall be no question as
to the reading of particular points.
And when courts are called upon to
put a proper interpretation on the
Constitution that there may be no
question as to the interpretation of
this point. The Committee, on this
subject, I think have done their duty
well. They have left no uncertain
sound in my opinion, in this section.
In the first place, we hear it objected
that the language is too broad, and
in the next speech is that it is too
short, but the language, I think, is
definite and good as it stands.
The CHAIRMAN. The question is
on the substitute offered by the gen
tleman from Cass (Mr. Maxwell.)
for the 2nd and 3rd sections.
Mr. TOWLE. Let us hear it.
The Secretary read the substitute
as follows:
The proceeds from the sales of
all lands that have been, or hereafter
may be granted by the United States
to the State for educational purposes
and the proceeds of all lands or other
property given by individual or ap
propriated by the State for like pur
poses shall be and remain a perpet
ual fund, the interest and income of
which, together with the rents of
such lands as may remain unsold,
shall be inviolably appropriated and
annually applied to the specific ob
jects of the original gift, grant or
appropriation.

266

SECTARIAN BEQUESTS TO STATE

Wednesday]

MAXWELL— LAKE— GRAY

[July 12

Mr. MAXWELL. Mr. Chairman, I
withdraw my substitute.
Mr. NEWSOM. Then, Mr. Chair
man, I withdraw mine, and offer
the following: The Secretary read
the amendment, as follows:
"All lands, money and other prop
erty granted, or bequeathed for ed
ucational purposes shall be used and
expended in accordance with the
terms of such grant, bequest or con
veyance. Provided, the State shall
not receive any lands money or other
property for sectarian purposes."
Mr. LAKE. Mr. Chairman, I
have no objection to the incorpora
tion of such a provision in the Consti
tution in the proper place, but it
seems to me that this is not the
place for it, and I hope the gentle
man will not insist upon encumbering
this section with such amendments.
I think section 12 will be the proper
place and when we come to that sec
tion I am willing to entertain the
amendment. Mr. TOWLE. Mr. Chairman, I
think there is no gentleman on this
floor that will object to the provis
ion offered by the gentleman in the
proper place; but I hope it will not be
appended to this section as a proviso,
which I think is complete.
Mr. GRAY. Mr. Chairman. Just
one word before this goes to a vote.
The Committee on this Article work
ed many days and hard upon this,
and counseled with all those whom
they thought were acquainted with
the subject; and they have presented
the result of their work before this
body, and now it devolves upon the
gentlemen here, who wish to amend
this to show its defects; None have
been shown yet. On the other hand,

these amendments are not complete.
They have all been presented in haste
and without sufficient thought. The
last one is not satisfactory and com
plete; and I believe it does not cov
er the object the gentleman himself
has in view. His objection is that he
does not wish to allow the State tp
receive and disburse moneys for sec
tarian education and schools. We all
agree with him in opposing that, and
will s-.ipport any section that will at
tain that. But this amendment does
not do so, I think. Then why not
leave this section as it is and bring
in this where it properly belongs?
The CHAIRMAN. The question is
on the amendment by the gentleman
from Otoe (Mr. Newsom.)
The amendment was not agreed to.
The CHAIRMAN. The question is
on the adoption of the second section.
The second section was adopted
The Secretary read the third sec
tion, as follows:
Section 3. The following are here
by declared to be perpetual funds for
common school purposes, of which
the annual interest or income only
can be appropriated, to wit:
First, such per centum as has been
or may hereafter be granted by Con
gress on the sale of lands in this
State. Second, all moneys arising from
the sale or leasing of the sixteenth
and thirty-sixth sections in each
township of this State, and the lands
selected, or that may be selected, in
lieu thereof.
Third, the proceeds of all lands
that have been or may hereafter be
granted to this State where, by the
terms and conditions of such grant,
the same are not to be otherwise ap
propriated. Fourth, the net proceeds of lands
and other property and effects, that

COMMON SCHOOL FUND

267

Wednesday]

ESTABROOK— LAKE— WAKELEY

[July 12

may accrue to the State by escheat or
forfeiture, or from unclaimed divi
dends or distributive shares of the
estates of deceased persons.
Fifth, all moneys, stocks, bonds,
lands and other property now belong
ing to the common school fund.
Sixth, all other grants, gifts and
devises that have been or may here
after be made to this State, and not
otherwise appropriated by the terms
of the grant, gift or devise, the inter
est of which said funds, together with
all rents of the unsold school lands,
and such other means as the Legisla
ture may provide, shall be exclusive
ly applied to the following objects,
to wit:(1.) To the support and mainten
ance of common schools in each
school district in the State, and the
purchase of suitable libraries and ap
paratus therefor.
(2.) Any residue of such funds
shall be appropriated to the support
and maintenance of academies and
normal schools, and schools of an in
termediate grade between the com
mon schools and the university, and
the purchase of suitable libraries and
apparatus therefor.
Mr. ESTABROOK. Mr. Chairman.
This Article was reported, after we
had agreed on it, with some little
haste, just, before the adjournment,
and without copying; and I see a
point in this section, I think, where
the Committee on Adjustment would
have some work. We intended, in
the first place, to provide for the
maintenance of common schools in
each school district in the State. That
is the first object. If there should
be a residue, and let me state there
will be abundance of residue for the
object, according to the estimate
made by a sub-committee of which
Gen. Vifquain is chairman, it is made
to appear that the State will have
about 3,000,000 acres of school land

which, at seven dollars per acre, will
amount to at-least $25,000,000. The
other western States have about $3,-
000,000, we will have between $20,
000,000 and $30,000,000 without the
fund that may be provided for by
law, the fund arising from fines and
forfeitures and license money, so that
there will be an abundance, I think,
to provide for all these classes and
grades of schools. The object was to
provide amply sufficient for the com
mon schools, and the residue, as pro
vided in the section of this provision.
If the Legislature see fit to use that
residue for the forming of normal
schools, etc., they may do so. That
was the design, if it can be accomp
lished in a more brief way I am
agreeable. Mr. LAKE. Mr. Chairman, I move
to strike out the words "the interest
of which said funds," in the sixth
sub-division of section three.
Mr. WAKELEY. Mr. Chairman, I
do not think that would accomplish
the purpose. At the same time this
matter should be left to the Commit
tee on Revision and Adjustment.
There is. perhaps a little fault in the
entire section as it stands, but I do
not think the amendment offered by
my colleague will remedy the defect.
In the commencement of the section
there is a distinct declaration that
funds remaining shall constitute a
"perpetual fund for school purposes,
of which the annual interest or in
come only can be appropriated."
Then follows a specification of the
fund that makes a complete provision
as far as it goes; then should follow
the provision, in substance, as is
incorporated in the sixth subdivision.

268

COMMON SCHOOL FUNDS

Wednesday]

THOMAS- CAMPBELL -McCANN

[July 12

And all needed, it seems to me, is to
reconstruct the sixth subdivision by
making a specific declaration that the
interest on the funds before men
tioned shall be appropriated as now
provided. The Committee on Revis
ion and Adjustment will remedy that
matter better than we can in Commit
tee of the Whole. It is a mere ques
tion of punctuation.
Mr. LAKE. Mr. Chairman, I with
draw my motion.
Mr. THOMAS. Mr. Chairman, I
would like to ask the chairman of the
committee whether there is any pro
vision for the proceeds of lands grant
ed by the United States to this State
for educational purposes? I do not
think there is any such provision in
this section. I see that the provision
alluded to in the Wisconsin Consti
tution is "The proceeds of all lands
that have been, or hereafter may be,
granted by the United States to this
State, for educational purposes (ex
cept the lands heretofore granted for
the purposes of a university), etc."
Mr. WAKELEY. Sections three or
«ix will either cover it.
Mr. THOMAS, (reading subdivis
ion two and three of section three.)
"Second, All moneys arising from
the sale or leasing of the sixteenth
and thirty-sixth sections in each
township of this State, and the lands
selected, or that may be selected, in
lieu thereof.
Third, The proceeds of all lands
that have been or may hereafter be
granted to this State where, by the
terms and conditions of such grant,
the same are not to be otherwise ap
propriated." Congress may grant us other sec
tions for educational purposes, which
may be neither 16 nor 36.

Mr. LAKE. The sixth subdivision
will cover it.
Mr. THOMAS. I do not know
whether it is sufficient.
Mr. ESTABROOK. I think it suf
ficient. Mr. CAMPBELL. Mr. Chairman, I
move an amendment to section three,
that the words "sixteenth and thirty-
sixth" read "sections number sixteen
and thirty-six". It will look very sil
ly to pass this. The grant of Con
gress says we are entitled to sections
number sixteen and thirty-six. Now
let us make our law in compliance
with that. I hope the Convention
will not pass over this.
The motion was not agreed to.
Mr. THOMAS. Mr. Chairman, I
do not know what amendment was
made to "the interest of which said
funds," in the sixth subdivision. It
is suggested that it should be amend
ed to make it " all the funds."
The CHAIRMAN. The Committee
on Adjustment is to settle that.
Mr. THOMAS. Mr. Chairman, I
move that we strike out the words
"interest of which said funds," and
insert "the interest arising from all
funds mentioned in this section."
Mr. McCANN. Mr. Chairman, I
would like to call the attention of
the Convention to one fact.
Mr. THOMAS. I withdraw my
amendment for the gentleman (Mr.
McCann.) Mr. McCANN, I think there is
more force in the suggestion
of my colleague (Mr. Camp
bell) than the Convention at first
supposed. We have some townships
that are fractional. This phraseology
"sixteenth and thirty-sixth sections"

COMPULSORY EDUCATION

269

Wednesday]

ESTABROOK— THOMAS

[July 12

is not right. If every township was
full, and we had no fractions, perhaps
the working of this section would be
sufficient; but supposing that we cut
off these sections from a township,
what then? If we have the sixteenth
and thirty-sixth sections we have not
two sections in that township; where
as in every township in the State
which is fractional we still have the
sections number sixteen and number
thirty-six. Mr. ESTABROOK. I find, on look
ing at the law, the language is differ
ent. It reads "sections number six
teen and thirty-six etc." I move to
amend by saying "all moneys arising
from the sale or leasing of sections
number sixteen and thirty-six."
The amendment was agreed to.
Mr. THOMAS. Mr. Chairman, I
now re-offer my amendment.
The amendment was agreed to.
Section three, as amended, was
agreed to.
The Secretary read section four,
as follows:
Sec. 4. The Legislature shall re
quire by law that every child of suf
ficient mental and physical ability,
between the ages of six and sixteen
years, unless educated by other
means, shall attend a public school
supported by the common school
fund, for some definite length of time
each year, to be fixed by law, and
may establish schools for the safe
keeping, education, employment and
reformation of all children of such age
Who are destitute of proper parental
care, or who are growing up in men
dicancy, ignorance, idleness or vice,
which schools shall constitute a part
of the system of cpmmo.n, schools.
Mr. ESTABROOK. Mr. Chairman,
I would move to amend by striking
out the word "may" and inserting

the word "shall," so as to make it im
perative. In committee, in the first
place it proposed that ordinarily all
children should be educated, and sub
sequently we agreed to leave it to the
Legislature to take up the vagrant
upon the streets and provide for his
education ; bur when we reflected for
a moment, we found there was a ne
cessity that we should have some
place for the provision of a reforma
tory school, so that when a boy is
refractory or guilty of some offence
and it is necessary to exclude him
from the school in which he is, he
may be taken where he shall be dealt
with. And it is required that you
provide for him.
The motion was agreed to NEM.
CON. Mr. MANDERSON. Mr. Chairman,
I move to strike out the word "six"
and insert the word "eight".
Mr. ESTABROOK. It seems to me
six is old enough. A portion of this
refers to vagrants and waifs who
have no parental care or guardian
ship whatever. It is for their use ; not
for the parents. The State owns them
from the time they are born into the
world, and is educating them in the
streets of our larger towns, such as
Omaha and Nebraska City, all the
while; and this State, whether she
feels it or not, owns that little crea
ture unless he is condemned to the
gallows or comes to some ignomin
ious doom.
Mr. McCANN. Mr. Chairman, I
hope that the gentleman from Doug
las (Mr. Manderson) will withdraw
his amendment, for this reason; the
object we had in view in taking up
these little waifs, as my friend Gen.

270

COMPULSORY EDUCATION

Wednesdayl

MCCANN— MANDERSON

[July 12

Estabrook calls them, was, primarily,
to teach them to read and write. We
want no men or women in this State
hereafter, who have to make their
mark in the way some men and
women in this State now do, instead
of writing their name; and at the end
of the eighth year that object may
be accomplished. We all know, those
of us who have had experience in the
education of the young, that at the
age of eight years, many children
have received that amount of educa
tion they expect to receive; and
shortly after that they are put to
some employment which deprives
them of further education afterwards.
And we desire to put them in the
proper schools at the age of six
years. That two years is a very im
portant period of life to them. I do
hope the age, as specified here, may
remain. Mr. MANDERSON. Mr. Chairman,
The doctrine of compulsory education
will meet with no stronger or warm
er advocacy from any gentleman on
this floor than myself. I believe
we should require, by constitutional
enactment and by law, that, children
should be educated; that we should
punish severely the parent or guard
ian of the child who refuses to edu
cate their child. The section pro
vides "that the Legislature shall re
quire by law that every child of suffi
cient mental and physical ability be
tween the ages of six and sixteen
years, unless educated by other
means, shall attend a public school
supported by the common school
fund, for some definite length of
time each year, Etc." Now we must
recognize the fact, those who have

observed the matter of education
at all, that there are a vast number
of parents who do not believe in
school education for the child of six
years. I do not believe we should
take the infant of six years and place
him in school. The proper place to
educate so young a child is at home,
under the mother's care, and not
under the care of a teacher. I do
not believe in a hotbed growth, and
taking the young child and forcing
a certain knowledge into his mind.
You injure a child by forcing into
him that which the mind is not suffi
ciently matured to receive. I think
it better we should require that this
compulsory education commence at
the age of eight years. That deprives
no parent of the right or privilege
of sending a child of four, five or
six years, if he sees fit, to school, and
it does not compel the parent to edu
cate until the child is sufficiently
matured and fit to receive educa
tion. Mr. KIRKPATRICK. This section
includes the time between six and
sixteen years, and part of the re
quirement is that each year the child
shall be put to school. I am opposed
to forcing children to school at the
tender age of five or six years. Those
who have been sent to school early
have not made the best progress.
I am opposed to the system of com
pulsory education. I am not behind
the age and opposed to progress. I
have great respect for the education
al, advantages offered by Russia
[Prusia?] to its subjects. But1
I do resent the idea that the
child belongs to the State. That
was the doctrine of the Spartans.

COMPULSORY EDUCATION

271

Wednesday]

KIRKPATRICK— NEWSOM

[July 12

I would like an explanation
from the gentleman upon the word
ing of this fourth section. Now it
strikes me here that it is a delicate
matter to ascertain whether the child
is educated or not. Who is to ascer
tain this information? Is the school
board in the district or the superin
tendent of the county? I would not
be understood as opposing education.
I believe the proper exercise of our
duties and privileges as citizens de
pends upon our intelligence. But I
know there are men who are in favor
of not only a forcing educational
system, but of a professional class
of teachers, who shall be teachers
and nothing else.
It appears there is a provision here
for other schools than ordinary schools,
for it is provided here that the child
shall attend school after a certain age,
(reads Sec. 4) "The Legislature shall
require by law that every child of
sufficient mental and physical abil
ity, between the ages of six and six
teen years, unless educated by other
means, shall attend a public school
supported by the common school
fund, for some definite length of
time each year to be fixed by law,
and may establish schools for the
safe keeping, education, employment
and reformation of all children of
such age who are destitute of proper
parental care, or who are growing up
in mendicancy, and ignorance, idle
ness or vice, which schools shall con
stitute a part of the system of com
mon schools."
Mr. NEWSOM. Mr. Chairman, I
disagree with the gentleman from
Douglas (Mr. Wakeley) where he
says that the children of the State
belong to the State. I believe there
are certain inalienable and indefeas-
able rights belonging to the people
— rights which belong to the child.

I believe in education as much as
any one here, but when you say
that you shall take the child from
the parent as you would take prop
erty by process of law, and compel
him to go where, perhaps, the parent
would not like to have him go, you
take away certain indefeasible rights.
For if the parent has not a right to
his own child, what in the name of
Heaven, can he have a right to? I
believe no man in this State has a
right to take my child from me and
compel it to go where I don't want
it to go. I believe it is my privilege
to resent it. This doctrine of com
pulsory education may do in monar-
chial governments in the old coun
tries, but it will not do in free Amer
ica. Now, as to this applying to des
titute children, that is another thing.
Those are subjects who ought to be
provided for by the State; those are
children which the State ought to
assume control of; but I say it is no
right of the State to say my child
shall be forced to go to school if
I don't want it to.
Mr. MANDERSON. It seems to me
that the gentleman from Otoe (Mr.
Newsom) strangely misconceives the
doctrine of compulsory education,
etc., and he strangely misconstrues
the meaning of my colleague (Mr.
Wakeley) has no right in the child
ren of the people of the State. My
friend from Otoe (Mr. Newsom) may
gather about him his young children
and shall say in the language of that
ancient matron, "these are my
jewels," but I would remind him
that these jewels are in the rough —
they are unpolished they are uncut.
The State says I will take these

272

COMPULSORY EDUCATION

Wednesday]

MANDERSON-BOYD

[July 12

jewels of yours and polish them: I
will fit and prepare them for the uses
of the State. Why the gentleman
seems to say that he has the same
right to his child that the slave own
er had to his slaves, a few years ago
"why," he says, "can the State com
pel] me to send my child to school?"
I say "yes," in this State. Mr. Chair
man, education is as necessary to the
child as its mother's milk; and the
parent who would keep back the ad
vantages of education from his child.
would sell him to ignorance and the
evils which grow out of ignorance. I
say that the doctrine of compulsory
education is based upon the principle
which requires every parent to place
his child upon the high road to re
spectability and prosperity. It con
flicts with no right of the parent.
This idea however, Mr. Chairman,
would come in more properly when
we come to the adoption of the Ar
ticle. Unfortunately, Mr. Chairman,
I have no children, and I don't know
whether I can count on them in the
dim future — -
Mr. BOYD. You might amend the
Constitution perhaps, Genl., (Laugh
ter.) Mr. MANDERSON. I suppose that
could be done. As I said, I have no
children, but there died at my house
in Ohio, some years ago, a beautiful
accomplished girl, some 16 years of
age. The disease of which she died
was a puzzle to the physicians, but
upon a full investigation of her his
tory, they came to the conclusion
that she was a victim to that hot
bed of education in New England
which has driven many to idiocy or
the grave. At 16 years of age, she

had an amount of knowledge that
would be a credit to an adult. I
doubt if there is half a dozen mem
bers of this body, who possess the
knowledge of the dead languages
which this girl possessed: but, taken
away from the mental food upon
which she fed, and it was like taking
a drinking man from his stimulants —
she died under all the symptoms of
delirium tremens. If she had lived.
insanity would have been certain, as
her nervous system had been com
pletely overworked. She had been
kept constantly at school from a very
early age. I think. Mr Chairman,
that the amendment which changes
the. age from 6 to 8 years, is a prop
er one. Looking further along, we
find a section which provides "for the
education, safe keeping, employment
and reformation of destitute child
ren" etc. Now, if my amendment
prevails, it will apply to this class
as well. With the consent of my sec
ond, I move to strike out in the
5th line, the words, "of such age,"
and substitute the words "under the
age of 16 years." It seems to me that
we should not limit the age to 8
nor even 6 years of age. In some of
our large cities we have children of
tender years thrown upon the chari
ties of the world; I w«uld have the
State take these and give them proper
parental care.
The CHAIRMAN. The question is
upon the motion to strike out the
word "six" and insert the word
"eight." Motion agreed to.
The CHAIRMAN. The question is
now upon the motion of the gentle
man from Douglas (Mr. Manderson)

COMPULSORY EDUCATION

273

Wednesday]

NEWSOM— HASCALL— ESTABROOK-LAKE

[July 12

to strike out, in the 5th line, the
words "of such age" and insert the
words "under the age of 16 years."
Motion agreed to.
Mr. NEWSOM. Mr. Chairman, I
move to strike out the word "prop
er" in the 5th line.
Mr. HASCALL. Mr. Chairman, I
think it will defeat the object aimed
at in this section to strike out that
word. This intends proper care and
education to children without par
ents, or whose parents will not give
them proper parental care. I do not
wish to multiply words, but I think
that the child who has parents but
who will not give him proper care
should be taken charge of and pro
vided for by the State.
Mr. KIRKPATRICK. There might
under that section a question
arise as to what is parental care.
Mr. ESTABROOK. I think the
word "proper" is, in fact, proper in
that place. In one of Dicken's works,
I think there is a character called
Fagin, who had the education, as a
parent, of all the little thieves. I
think such, would not be considered
by our courts as proper parental
care. My opinion is that in many
cases the children should be taken
away from the destructive influence
of improper parental care, and dens
of infamy where many of the child
ren of the State of Nebraska are be
ing, educated to day, and provided
for by the State.
Mr. LAKE. Mr. Chairman, with
out multiplying words to a great ex
tent on this question, I must say that
it does seem to me that the word
"proper" should be retained. A
child may be provided with partial
18

care, but it may be entirely inad
equate to its wants. The gentleman
from Otoe (Mr. Newsom) seems to
be a little exercised as to how this
shall be carried into effect. I don't
think any of his children will be
taken away from him, or from any
other good parent. It has been said
that the State has not the right to
take children from their parents; but
the State has done so. And how fre
quently does it occur that our courts
have had to take children and ap
point guardians for them? It is only
intended by this section to provide
for the doing of that which has been
done in other ways. It seems to me
that the amount of care should be
determined by the Constitution, and
that the word proper is the exact
word needed. I should very much
dislike to see that word stricken out,
for I think it would destroy the in
tention of the section: It has been
objected to that the children belong
to the State; Yet this is true to some
extent. If not, why are we taxed
for the common school fund? If
the State has not the right to say
that the parent shall send the child
to school, shall it say to the parent
who is willing to educate his own
children that he shall contribute to
the school fund for the education of
others? If a man from penurious-
ness or other cause neglects the prop
er care and education of his child it
is right that the State should take
the child and do for it that which
the parent has neglected to do. Why,
shall it come to this; that the child
is so much the slave of the parent
that he may refuse to clothe and feed
it yet not be amenable to the laws

274

COMPULSORY EDUCATION

Wednesday]

LAKE— NEWSOM— MANDERSON

[July 12

of the State? That would be a cu
rious doctrine to enunciate in this
age of the world. The parent can be
compelled through the action of our
courts to provide necessary clothing
and food for his child; and so it is
with education. He can be compelled
to educate his child. If a portion of
the people pay the expenses, he can
be compelled to pay them whether
he voluntarily does so or not. I am in
favor of the provision as it stands.
I am fully committed to this doctrine
of compulsory education which has
worked well in Europe. It works
well in Massachusetts and will work
well here. I take the high ground
that no parent has the right to bring
up his children in ignorance, pro
fligacy and vice. If he do so he has
forfeited his right, as a parent, to the
custody and care of that child. It is
the duty of the State, in all such
cases, to see that right is done. The
parent violates his right to the cus
tody and control of the child. For
those wrongs the child has the right
to call upon the State for protection.
'That is a part of the duty of gov
ernment — to protect not only the
grown up men and women, but pro
tect the little ones. And if, through
ignorance, if, through avarice, the
child does not get care and attention
from the parents, I hold it is the
high duty of the State to see to it
that these little ones are protected
and educated. In other words, that
the State become parent, guardian
and protector of that child or those
children who have lost their natural
guardians and protectors.
Mr.- NEWSOM. What the gentle
man from Douglas (Mr. Lake) might

consider proper, the gentleman from
Otoe (Mr. Newsom) might not. What
one might consider proper, another
might think wrong. It becomes a
matter of necessity that the Legisla
ture must say what is proper. I be
lieve it to be the duty of the State
to take care of children deprived of
parental care, destitute of the neces
sary means of education. Upon the
other question I believe it is my in
defeasible and inalienable right to
hold and control my child, not bru
tally, not meanly, but it is my right
to take care of the child; and no
power could force me to send it
where I do not want it to go. If
I deem the age of eight or nine too
early to send my child to school, it is
my privilege to keep him away. I
10 not conceive, but that if a man
has no right to his child, he has no
right to anything. If you can take
his child away cannot you take
anything else? Is there no alien
able [inalienable] right?
Mr. MANDERSON. Will the gen
tleman permit me to ask him a ques
tion? Does this right to own a child
extend to father, mother or both?
Mr. NEWSOM. Both.
Mr. MANDERSON. Supposing
there should be riot and confusion in
the household, and consequent di
vorce, who shall take the child?
Mr. NEWSOM. The law decides
it. Mr. MANDERSON. Then the law
is the superior parent.
Mr. NEWSOM. Yes, under certain
circumstances. Mr. LAKE. Allow' me to ask a
question. Would the right be inali
enable, then, if it could be taken

COMPULSORY EDUCATION

275

Wednesday]

NEWSOM— TOWLE

[July 12

from him by law?
Mr. NEWSOM. In a certain sense.
Mr. LAKE. Yes we all agree to it in
a certain sense.
Mr. NEWSOM. There is the diffi
culty between us, I argue that where
a parent does his duty in every sense
of the word, excepting this of send
ing to school. I am not talking of
extreme cases, where it becomes the
duty of the State to step in and take
care of the child. Where there is a
division in the family, there should
be some law provided for the child.
I do not know whether I am right or
not, but I do not believe it right to
take my property or money, even if
every man but myself agree to it,
without my consent, and appropriate
it to any specific or certain purpose. I
do not believe it to be sound law to
take my property under the educa
tional system; to make me educate
another man's child; but public poli
cy may acquiesce in it. And that is
the only ground on which it can be
sustained. I do not believe you can
take my money and appropriate it
to private corporations, if all the
men in the State say so. I do not be
lieve you can do it properly; public
policy may demand it, and it may be
done to gratify public policy, but the
right is nevertheless there. It is
mine and you cannot evade it. That
is the ground on which I argue this
question. Mr. TOWLE. Mr. Chairman, It
has been said by somebody that
"State does not consist of mortar and
bricks, it does not consist of ships
of every sea, railroad trains running
over every hill and through every
valley; it does not consist in coffers

of wealth, and in the magnificent
resources only; but that it consists
in the integrity, in the intelligence,
in the probity, and in the culture
and understanding of the commun
ity." That I believe is but a general
proposition which has been produced
by the person whom I am quoting.
In more appropriate language, that
strikes nearer to the heart, and such
being the proposition upon which we
start out, it follows, as a natural con
sequence, in my judgment, that the
State has the power and the right
to emancipate from the control of
father, and lay down rules and di
rections which should guide and con
trol the intellect of that child, and
that future citizen. If the Legis
lative power 'of the State has the
right to emancipate that child at the
age of twenty-one, certainly it has
the right and power to emancipate it
at the age of five, six or seven years
and place it where humanity may
require. This is no new proposition,
no new theory. As the gentleman
from Douglas (Mr. Lake) remarked,
it has been decided and adjudicated
in cases in several Supreme Courts.
In Ohio this question came up on the
very proposition which this gentle
man has laid down — -the inalienable
right the father has for the care of
his children. In the fifth , Ohio re
port where parties had been di
vorced, one had possession of the
child, and the other came in with
a writ of habeas corpus, claiming it;
the child was brought into court,
criminations and recriminations were
brought in showing that neither
party was fit to control the welfare
of the child. The court laid down

276

COMPULSORY EDUCATION

Wednesday]

TOWLE— KIRKPATRICK

[July 12

this universal proposition — it was
the duty of the Courts of Chan
cery within the provision of the
State, to take hold of these child
ren and draw them out of vice, crime
and ignominy; place them in either
party, or take them from both, and
place them in the hands of some
party who can control, rear and guide
that child, as it should be under the
best influences of civilization. The
State has the right for this reason,
because it is a general proposition,
that without education crime will be
in the land. If the child is brought
up in ignorance and crime upon
whom does the wrong rest? Upon
the State, and no other party. If he
is put in the penitentiary, it is the
people who pay for it: it comes out
of the pocket of the individuals who
own property in the State; and they
have the right to say that in the be
ginning, in the yduth, this twig shall
be bended in such direction, and
shall not be found in the poor house,
in the penitentiary; that he shall not
hanged from the gallows, but so
guided, that the influences may be
thrown around him on the side of
virtue and intelligence; and that the
taxes of the people and the taxes of
the State shall not be used hereafter
and appropriated for the purpose of
keeping and directing that child.
Why, Mr. Chairman, the man in Illin
ois, the other day thought he had a
right to his child when he tortured
and whipped it to death, and I ask
who can read the account of this
cruelty without a feeling of horror.
Suppose there had been regulation in
that State that child might have been
-saved. I believe, sir, the State has

this power and ought to exercise it,
under appropriate control and super
vision. Upon the ground of safety
to the taxpayers this ought to be
done, that we may not be burdened
with these taxes and penitentiaries
and other buildings. In all these
buildings you will find individuals
whose education has been entirely
neglected in their early youth, where
as otherwise they would have been
placed upon the highway to wealth
and industry.
Mr. KIRKPATRICK. I say again
I think the amendment should pre
vail. I think, although I have been
edified by the speeches, there has
been much said that might have been
said elsewhere. The section under
consideration seems to have been
carefully drawn, and much thought
exercised in its preparation. This
section provides for the "safe keep
ing" of children. I do not know
what that means unless it is the in
tention to secure the State against
crime. Then it goes on to provide for
"the education, employment and re
formation of all children of such age
who are destitute of proper parental
care" and etc. The only question
here is what is proper parental care?
There is no man who will say but the
State is in duty bound to maintain
them. Whether it could be better
done by Legislative enactment, or
some other means, I am not prepared
to say. I know that Mother England
has penitentiaries and reformatory
institutions, but they are mostly, I
think the result of the charity of
private individuals. Now, about the
man's inalienable right to his child.
I say there is a God-imposed re-

REFORM SCHOOLS

277

Wednesday]

MAX WELL— LAKE

[July 12

sponsibility placed on a parent in re
gard to his child that no Legislature
can take away or release him from.
If a man neglected to give proper
education, and care and support, then
I say it is the right of the State to
interfere. I dissent from the propo
sition that all children belong to the
State; that is carrying things too
far. I think the State owes its duty
to the children of the State that it
must perform under certain exigen
cies. The CHAIRMAN. The question is
upon the amendment of the gentle
man from Otoe (Mr. Newsom), to
strike out the word "proper".
The amendment was not agreed to.
Mr. MAXWELL. Mr Chairman, I
now move to amend the fourth
section by adding "provided
that the sum paid out of
the common school fund to sustain
said institutions shall not exceed in
amount in any one year, the propor
tion, per capita, of the whole number
of children and youth between the
ages of five and twenty-one years resi
dent of the State." Now Mr. Chairman
in reading this section it will be per
ceived that this proposition to estab
lish reformatory schools provides
that the Legislature "may establish
schools," "and shall", as we now
amend it, "establish schools for the
.safe keeping, etc." Now I propose to
amend so that there shall only be a
proportion drawn out of the common
school fund for the support of these
children. In every town of this State
you may establish a reformatory in
stitution under the head of "common
schools" which is, in fact, a house of
correction; and support these out of
the common school fund; and it is

wrong. They ought to be supported
by funds voted by the Legislature.
Under this provision in the Consti
tution we may establish a reform
atory institution in every county in
this State, and you may provide to
maintain them out of the common
school fund. "They shall establish."
Where? Why, wherever you can be
be made to believe they are needed.
It does seem to me it is giving a
great deal of power to the Legis
lature to establish this class of houses
of correction. And it seems, too,
there is a liability to divert the
school fund from its proper channel
for the support of houses of this
character. Mr. LAKE. It seems to me, Mr.
Chairman, it would be well to en
trust some things to the Legislature;
at least we ought not to assume that
we have a great deal more wisdom
than those who may be elected by
the people hereafter to make the laws
and carry into effect the provisions
of the Constitution. I am willing at
least, to entrust some things to the
Legislature, and to the good sense of
the people. I do not fear that the
good people of the State of Nebraska,
or their representatives whom they
may send here, will squander their
own moneys upon children of this
class. I have no fear of the danger,
if there be any danger at all, that
they would appropriate any funds
unless compelled to do so by the pro
visions of the Constitution; because
we cannot conceive that the funds
which are required for the support
of these schools will be taken en
tirely from the school fund. But
the Legislature will not be required

27 8

REFORM SCHOOLS

Wednesday]

MANDERSON-HASCALL

[July 12

to build up these schools and provide
for their support out of the common
school fund, but may provide for the
support of them by the levy of a gen
eral tax upon the people of the State.
I would say leave it to the wisdom of
the people as expressed by the rep
resentatives they may elect to rep
resent them in the Legislature. I
should oppose the amendment.
Mr. MANDERSON. I too, hope
the amendment proposed by the gen
tleman from Cass (Mr. Maxwell) will
not prevail. I agree with my col
league (Judge Lake) that we are safe
to leave this matter in the provisions
of section four to the Legislature. I
apprehend no such result as is sup
posed by the gentleman from Cass
(Mr. Maxwell). I would not limit
the amount the Legislature might
expend for this purpose, as he pro
poses to limit. The provision in the
Constitution of the State of Ohio,
while it does not go into detail as
this does, yet under its provisions
the Legislature of that State has
seen fit to take some such action as
pointed out in this section, not by
the organization of reformatory
schools, but by organizing and main
taining one reform school. The Leg
islature of that State purchased, some
years ago, a tract of land, and upon It
established the Reform Farm of Ohio,
in institution that has done immense
^ood. The education which may be
taught children does not consist in
teaching them the A. B. C, but it
means that the State shall assume
towards them the attitude of a par
ent, and teach them some trade.
The Probate Judge is authorized, if
there be room in the Reform Farm,

to send a child for whom application
is made. There it is cared for; taught
habits of industry; and taught
some trade, perhaps farming. That
institution is, to a certain extent, self-
supporting. It is very little tax up
on the people of the State. I think
it was first established ¦ out of the
common school fund, but it has main
tained itself by cultivation of the
broad and beautiful acres making up
the farm, and it seems to me that
under this provision as it is, some
such action might be taken by this
State. I shall, therefore, oppose the
amendment. Mr. HASCALL. Mr. Chairman, I
move that the Committee rise, re
port progress, and ask leave to sit
again. Motion agreed to.
Mr. STEWART. Mr. President,
the Committee of the Whole have had
under consideration the report of tne
Committee on Education, School
Funds and Lands, and beg leave to
report progress, and ask leave to sit
again. Adjournment,
Mr. LEY. Mr. President, I move
that we adjourn until 2 o'clock this
afternoon. Motion agreed to. So the Conven
tion (at twelve o'clock and four min
utes) adjourned.

AFTERNOON SESSION.
The Convention met at 2 o'clock
and was called to order by the Presi
dent. Privilege of the Floor.
Mr. MANDERSON. Mr. President,

RAILROAD VISITORS— MAXWELL AMENDMENT 279

Wednesday)

MCCANN— GRAY— ESTABROOK

[July 12

I have a resolution I wish to offer. .
The Secretary read the resolution
as follows:
RESOLVED: That the privilege
of the floor be extended to Governor
Dennison of Ohio.
Mr. MANDERSON. Mr. President,
I move the adoption of the resolu
tion. The motion was agreed to.
Mr. McCANN. Mr. President, I
move that the privileges of the floor
be extended to the Hon. B. E. Smith
of Columbus, Ohio.
The motion was agreed to.
Mr. McCANN. Mr. President,
there are several citizens of Nebraska
City here with these two gentlemen,
representing different railroad inter
ests and I ask that the privileges of
the floor may be extended to them
during their stay this afternoon.
The PRESIDENT. The request
will be granted unless some gentle
man objects, and I will just say that
the privileges of this floor will be ex
tended to any friend that any mem
ber may see fit to invite here, unless
some objection is made.
Mr. McCANN. Mr. President, I
move that we now go into Committee
of the Whole to consider the report
of the Committee on Education,
School Funds and Lands.
The motion was agreed to.
So the Committee went into the
Committee of the Whole, Mr. Stewart
in the Chair.
The CHAIRMAN. Gentlemen of
the Committee: We have under con
sideration the amendment offered by
the gentleman from Cass, (Mr. Max
well) to' section four. The Secretary
will read the section and amendment.

The Secretary read as follows:
Section 4. The Legislature shall re
quire by law that every child of suf
ficient mental and physical ability,
between the ages of eight and sixteen
years, unless educated by other
means, shall attend a public school
supported by the common school
fund, for some definite length ot time
each year, to be fixed by law, and
may establish schools for the safe
keeping, education, employment and
reformation of all children under 16
years of age who are destitute of
proper parental care, or who are
growing up in mendicancy, ignorance,
idleness or vice, which schools shall
constitute a part of the system of
common schools.
PROVIDED. That the sum paid
out of the common school fund to
sustain said institution, shall not ex
ceed in any one year, the amount
per capita in proportion to the whole
number of children and youth be
tween the ages of 5 and 21 years,
resident in the State.
The CHAIRMAN. The question is
ou the adoption of the amendment of
fered by the gentleman from Cass,
(Mr. Maxwell.)
The Committee divided and th°
amendment was not agreed to.
Mr. GRAY. Mr. Chairman, I de
sire that the word "shall" in the 4th
line which was substituted by the
amendment, be stricken out, and tke
word "may" substituted, if in or
der. The CHAIRMAN. The motion is
not in order.
Mr. ESTABROOK. Let me sug
gest to the gentleman, that after we
get through with the Article, section
by. section, in the Committee, then
then the whole bill is subject to
amendment. Mr. REYNOLDS. Mr. Chairman, I

280

'RAGGED" SCHOOLS

Wednesday]

WAKELEY— MYERS

[July 12

have an amendment to offer.
The Secretary read the amendment
as follows:
Strike all after the word "shall"
in the first line down to the word
"established" in the fourth line, and
to strike out the words "of such age"
in the fifth line, and insert the words,
"between the ages of 5 and 16
years." The amendment was not agreed to.
Mr. MANDERSON. Mr. Chair^
man, I move the adoption of the sec
tion as amended.
Mr. WAKELEY. Mr. Chairman, I
am strictly in favor of the principles
of this section. I believe that a pro
vision making it obligatory on the
Legislature to establish reformatory
institutions for the young and desti
tute is necessary; and it is for this
reason that I am anxious to see the
section so framed as to have no mis
understanding of it by the people
when they come to vote upon it. I
find in the latter part of the section,
that which I think, if not wrong,
would be liable to a misconstruction.
It provides for the reformation of
"all children of such age, who are
destitute of proper parental care."
Now, sir, I do not think.it is the inten
tion to say that from the mere fact
that a child was destitute of proper
parental care, he should be sent to
the reform school; but, sir, it is li
vable of being so construed. The
child, it is true, may be . an orphan,
and be thrown entirely on its own re
sources, and yet not be a proper sub
ject for the reform school. I think it
might be made plain by striking out;
in the Sth line, the words "are des
titute of proper parental care or
who" and inserting the words "for

want of proper parental care or other
cause." I offer such as an amend
ment. Mr. MYERS. Mr. Chairman, be
fore I vote for this, I wish to know
whether this is to be that part of the
schools of the State commonly known
as ragged schools — that is, schools
for such children as have not the
means of education. Whether it is
intended to make a distinction be
tween the poor and the wealthy. I
would not desire to see anything of
this kind placed in our Constitution.
There ought to be no such distinction
made in the Constitution. I think,
however proper it may be for the
Legislature to make it, we ought sim
ply to lay the foundation of a gen
eral school system that embraces all
the children of this commonwealth.
The Legislature will put this clause
of the Constitution in operation by
appropriate law. If we establish a
house of correction for vicious child
ren, that may be within the jurisdic
tion of the Legislature; but I would
like to present a school system to the
people of the State that is not em
barrassed by any insinuations against
the purity of the people, against the
purity of any child in the State. I do
not think it is proper to impeach the
rising generation. For these reasons
I shall vote against these proposi
tions, and shall prefer to sustain a
clause that will give us a common
school system in the Constitution
without bearing upon its face the
least reflection upon any one.
The motion was agreed to.
Mr. MAXWELL. I move that we
add to section four the following:
"Provided, that this section shall not

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281

Wednesday]

MAXWELL— ESTABROOK

[July 12

be so construed as to require said in
stitutions to be sustained entirely
from the school fund, nor shall ap
propriations be made from said fund
for the erection of buildings." As
this now stands you leave the school
fund, to a certain extent, unlimited,
so that you will have to sustain an
institution of this kind, because this
section will admit of a like construc
tion, you can establish this class of
reformatory school. If established
it must be sustained by public funds.
This section will admit of that be
ing sustained out of the common
school fund. How many of such
buildings shall there be in the State?
The number is unlimited, wherever
one is necessary. How many schol
ars are necessary to have an institu
tion of that kind? Perhaps every
county in the second tier of counties
will have one. If every county on
the river has a right to one, every
other county has. We must trust
something to the Legislature. We
submit our work to the people of this
State. The school fund may possibly
be squandered or diverted from the
object for which the grant was given.
I think these institutions should not
be supported out of this fund; no
part of it should be applied for the
building. They may establish
schools for the safe keeping, edu
cation and reformation. Would not
that allow them to erect buildings?
Here is a specific class of schools
"they shall establish." That means
something more than common
schools. They 'are to erect buildings,
because that is the first important
thing to be done. Supposing the law
had said they shall establish a uni

versity and there was no building.
How are you to have one without a
building? That is the first thing
necessary. I think we ought to adopt
some safeguards in order to provide
against the possible, if not probable,
chances of having this school fund
diverted from the original purpose.
Mr. ESTABROOK. I wish to offer
congratulations that one of our mem
bers is so sharp and keen. If his re
marks have any foundation, I should
feel alarmed lest some portions of
this school fund might be squander
ed. He cannot feel any more solici
tous than I do, that they shall be
properly used. In the first place in
regard to the common school fund,
whether we are to bring these child
ren from the streets, bring them up
in such a way that their better quali
ties may be unfolded by means of the
great magnificence of the school fund
which the general government has
provided. I would like to know what
the gentleman from Cass (Mr. Max
well) calls squandering? Whether
he calls picking up the little waifs as
they float around the streets and are
becoming vagabonds, whether he
calls that a squandering of the school
fund? No, sir! If I had my will, and
there was but one to be cared for un
der the provisions of the common
school fund, I would see that these
little helpless waifs that are brought
here into this world unwelcome creat
ures, they should first be cared for by
the provisions of the school law. In
the preparation of this Article, I
made a mistake by not providing that
they should be first cared for. I in
tended that they should be. I intend
ed, as far as my action goes, that the

2S2

COMMON SCHOOL FUNDS

Wednesday]

ESTABROOK

[July 12

common school fund should embrace
them as closely, if not more closely,
in the arms of its protection and
guardianship, and just as closely as
any other portion of the community.
Now, let us see.in the first place, of
what the fund consists. I have al
ready stated that no State in the
Union of States contains such a fund
as we have. We have, as has been
reported by a competent engineer,
who is a member of the Committee,
at least $25,000,000 of money arising
from the permanent fund alone; at
least $25,000,000, drawing, if you
please anywhere from six to ten per
cent. We have ten times the school
fund of any State in the Union, be
cause any one western state having
$3,000,000 of school money, makes
it a subject of boast, and we have not
less than 21,000,000 or 22,000,000
when all our lands are brought into
market and sold. This is our common
school fund. In addition to it we
have upon our statute book a pro
vision which turns into the common
school fund to be used for every day
purposes in the way of distribution
among the districts. We have all the
fines under the penal code and all the
license moneys. We regard this
fund, the fund arising from the fines
under the penal code, and the licen
ses for the sale of liquor, as the most
appropriate fund to turn into the
common school fund for the support
of this peculiar species of school, pe
culiarly appropriate for it; hence we
left it as I will read: "All other
grants, gifts and devises that have
been or may hereafter be made to
this State, and not otherwise appro
priated by the terms of the grant,

gift or devise, the interest of which
said funds, together with all rents
of the unsold school lands, and such
other means as the Legislature may
provide, shall be exclusively applied
to the following objects, to wit,"
meaning also these funds arising
from the violations of the penal code,
license moneys and the like, should
also be turned into the common
school fund. There is sufficient with
out touching any portion of the fund
arising from the sale of land. He
says it may be used for the purpose
of building school houses. I say the
provisions of the Constitution for
bid it. This is made a part of the
common school . system. The fund
would divert from the common
school and be diverted from the
support of those schools. And in re
gard to that school it provides that
the moneys shall be exclusively ap
plied: "first — to. the support and
maintenance of common schools in >
each school district in the State, and
the purchase of suitable libraries and
apparatus therefor." These moneys
"shall be exclusively applied to the
maintenance of schools." That for
bids the idea. It was so regarded in
Wisconsin from whence it was tak
en, and it is the true meaning of the
language and can bear no other con
struction. And the remainder shall
be applied as provided in the second
subdivision. All this tinkering on
the subject is entirely unnecessary.
If any gentleman will point out any
defect no one will be readier than
myself to rectify it. In regard to
the location in every district. If
there were any necessity for it I would
say put one in every school district

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283

Wednesday]

ESTABROOK-MA X WELL

(July 12

in the "entire State and it is no waste
of school money. But I imagine we
shall do as other States have done
which institute reform schools. We
shall need no more of these than
lunatic asylums, penitentiaries, etc.
Many children are brought before the
police courts, charged with crime
who, nevertheless, are too small to be
accountable, and hence to be dismiss
ed into the streets and left to the
evil habits growing upon them. We
need a place where these individu
als can be tenderly taken into the cus
tody of the law, and placed in some
spot where no stain or opprobrium
may be attached to them; but where
they may have a substantial educa
tion. And when men talk about
squandering money they have not
delved down to the foundation.
Mr. MAXWELL. After listening
to my friend I think he entirely mis
understands my position on this sub
ject. I am in favor of the passage
of this act. I say it is not proper to
attach to the Constitution a provis
ion that part of the school fund be
appropriated to maintaining this
class of schools, and this language is
very strong: "The Legislature, for
some definite length of time each
year, to be fixed by the law, shall es
tablish schools for the safe keeping,"
etc. Now, what does that mean, Mr.
Chairman? It means something
more than schools. That is that they
shall establish houses of correction.
They give them the name of schools,
but that is, in effect, what it means.
"Safe Keeping"! What does that
mean? Why not have a provision
like that in respect to common
schools? It means that they shall

take the children up and keep them
in these institutions — take them out
of the world, in fact, and keep them
in these schools and educate them.
For a certain class of children I am
in favor of such an institution as
that, and of having a sufficient num
ber of them, and having appropria
tions made by the Legislature as
shall be needed. But to make a pro
vision of this kind in the Constitution
that is liable to construction, and to
divert the funds from their proper
course, I say that is mis-appropriat
ing the funds; and, for the purpose,
it might be said, squandering the
school fund, not the money. But it is
misapplying the money which we are
bound to disburse in good faith.
"For the safe keeping, education, em
ployment and reformation of all
children of such age who are desti-.
tute of proper parental care." The
gentleman says he would be in fav
or of having one in every district, if
necessary. Now, I object to this be
cause, for one reason, the number is
unlimited. Call them by their true
name — houses of reformation. There
is certain provision that these may
be provided for not out of school
funds. Now, what will it cost to sus
tain an institution of that kind for a
year? It must have teachers, super
intendents and a lot of officers. Sal
aries would amount to, perhaps, sev
eral thousand dollars. How much
would it be for Douglas, Cass, Otoe
and other counties? That is left in
definite — how much is the appropria
tion for the house of reformation, in
fact. Because if we establish houses
of reformation, which is the appro
priate term, would not that bear the

284

REFORM SCHOOLS

Wednesday]

MAXWELL— TOWLE

[July 12

construction that they build those
houses? All I ask is that this fund
shall not be diverted from its origi-
_ nal purpose. Under this the whole
cost must be sustained out of the
school fund. The gentleman says
our school fund is very large. That
is counting our chickens before they
are hatched. They will pay two
mills on the dollar to sustain the
schools. Your property and mine help
sustain the schools to day. I do not
complain, but this 25,000,000, in all
probability we have not got now; and
being taxed as we are to sustain the
schools in the condition they are
now, not yet free, even with this tax.
Now, if we divert $20,000 or $30,000
or $50,000 from that fund to support
one institution of this kind, does not
that divert so much money that
might be distributed throughout the
State? And if the Legislature felt
like it they might appropriate two or
three hundred thousand dollars for
that purpose.
Mr. TOWLE. It appears to me, Mr.
Chairman, that the ground taken by
the gentleman from Cass, (Mr. Max
well) is perfectly tenable, just and
proper. The gentleman from Doug
las (Mr. Estabrook) begs the ques
tion and avoided the point. He went
off in a high faluting speech in re
lation to these little waifs. The logic
and spirit of it I heartily concur in.
It is the especial duty of the State, at
all hazards, to provide for the educa
tion and protection of this unfor
tunate class of human beings. But
the question for us to decide is out
of what fund these unfortunates
shall be provided for. The common
school fund is one belonging to the

whole State at large. Every man,
woman and child is entitled to a per
capita amount of that school fund,
and it is not right that that fund
should be diverted to building refor
matory institutions for the large
cities. Now, then, from what source
shall these moneys come? Why
from what portions of the State do
these waifs come? We do not find
them on the prairies, but congregat
ed in the large cities, where there is
a wealthy population; and where vice
most abounds. These wealthy com
munities are able to bear taxation,
and these schools should be kept
either by a local tax or an appropria
tion. Mr. Chairman, I am in favor of
all these reformatory institutions in
the very sections of the State where
they are needed. I am in favor, gen
tlemen, of a direct taxation, or an
appropriation out of the general
fund, which is the same as a direct
tax upon all parts of the State, to de
fray the expense of these institutions.
For that reason, Mr. Chairman, I am
in favor of the amendment offered by
the gentleman from Cass (Mr. Max
well). The CHAIRMAN. Gentlemen,
those in favor of the amendment of
fered by the gentleman from Cass
(Mr. Maxwell) will say "aye" those
opposed will say "no."
The Convention divided, and the
amendment was adopted.
Mr. McCANN. Mr. Chairman, I
move the adoption of section 4.
Mr. THOMAS. If the gentleman
will withdraw his motion for the
adoption of the section, I will offer
an amendment.

COMPULSORY EDUCATION

285

Wednesday]

THOMAS— SPRAGUE— LAKE

[July 12

Mr. McCANN. I withdraw my motion.
Mr. THOMAS. Mr. Chairman, I
move to amend the section by insert
ing after the word "shall," in the 2nd
line, the words "where it is practic
able." It seems to me there is a
defect in the section as it now stands
for the reason that in some sections
of our State it is an absolute impossi
bility to send children to school. I
believe in leaving this matter with
the Legislature, and when it is prac
ticable to send children to school,
to make education compulsatory.
In some portions of our State, it
must be impossible to send children
to school. It may be said that the
Section applies only where the child
is not educated by other means, but
in some places parents are not ca
pable of teaching their children. If
there are schools within a certain
distance, say one, two or three miles
then it would do, but there are many
places where it would not be possible
to maintain schools. Now, I think
that this matter might be left to the
Legislature to say in what cases it is
practicable to enforce this law.
Mr. SPRAGUE. Mr. Chairman, 1
had prepared an amendment simi
lar to that offered by Mr. Thomas,
and I think his amendment ought to
be adopted. There are, as he re
marks, many places where parents
are not able to send their children
to school, for the reason that there
are no schools in their vicinity, and
if the State is going to assume the re
sponsibility of sending these children
away to school, it will be found that
there is an extent of business on the
fcands of the State, which will soon
absorb the entire school fund.

Mr. LAKE. Mr. Chairman, I will
ask whether we have laws to pro
vide how the school districts through
out the State are divided; what ter
ritory shall be embraced in each, and
also in respect to the organization of
these districts? Now it seems to me
we are to look upon the formation of
this Constitution like reasonable be
ings. We are not to suppose that the
Legislature will punish a parent for
not sending a child to school where
the Legislature has not provided
schools to which they may be sent.
I agree with the gentleman from Ne
maha (Mr. Thomas) that this matter
should be left with the Legislature.
Schools will be established when the
number of people living at any one
point is sufficiently large to warrant.
At these places schools will be estab
lished and it will be obligatory upon
the directors of these school districts
to build school houses. Where this
is done — where means are provided,
then, of course, the obligation will
devolve upon the parent to send the
child to school. But it cannot be
possible that any member of this Con
vention can seriously entertain the
idea that the Legislature will require
any thing of the people of the State
which can not be done.
Mr. MAXWELL. Mr. Chairman,
substantially, I am in favor of section
four, but there are many questions
arising upon this very section which
might he unconstitutional. It seems
to me we had better submit this sec
tion as an independent section. If
we submit it as a part of the Consti
tution, the entire Constitution is to
be rejected or adopted. I therefore
move that section four be submitted

286

COMPULSORY EDUCATION

Wednesday]

ESTABROOK -MAXWELL-MYERS

[July 12

as an independent proposition. I
would strike this section out of the
Article. Mr. ESTABROOK. Mr. Chairman,
the gentleman from Cass (Mr. Max
well) imagines it may be the death
of this Constitution if this section is
in it. Since our adjournment I have
sent several copies of this report to
the leading newspapers of the State,
with a written request on the margin
to "comment." During the past few
days, I have received several answers
from some of our editors, and they
all speak in free, hearty commenda
tion of the report, and of this sec
tion. This provision meets with the
hearty approval of the Press of the
State, and it seems to me it would be
exceedingly idle and improper to sub
mit it separate. If anything can be
done to perfect it, I shall not object.
The CHAIRMAN. Gentlemen, are
you ready for the question? The
motion of the gentleman from Cass
(Mr. Maxwell) is to strike out sec
tion four.
Mr. MAXWELL. Mr. Chairman, If
the statement made by the gentleman
from Douglas (Mr. Estabrook) is
true, there can be no danger in sub
mitting this section as a separate
proposition; while if there are any
opposed to it, it will give them a
chance to express it. The section
reads, "proper parental care." There
might be some who would want to
know just what is meant by "proper
parental care." The question might
arise upon this as to what tribunal
shall determine what is " proper par
ental care." Shall the school Board
be the power, or what Board shall
rteterriinp t'.iis matter? Who is to

enter the precincts of the home and
determine the action between a man
and his children? I always thought
that the home was the man's castle.
Now I submit that the whole Con
stitution might be endangered by this
section, and therefore I think it
ought to be submitted as a separate
section. Mr. ESTABROOK. Mr. Chairman,
there has been considerable said
about the word "proper" Now I
would like to ask the gentleman, as
a legal men, what is to be understood,
by the words "common carrier," and
who is to determine its meaning?
Such things are naturally left to the
judgment of the courts and so it.
would be in this case.
Mr. MYERS. Mr. Chairman, I was
unfortunate in being absent when
this question was argued so that I
am ignorant of what has been done.
Nor have I been enlightened much
while I was here. I would move to
strike out all after the word "law"
in the fourth line. I do not wish to
to connect with our common school
system the idea of criminals, or make
our common schools a place of
punishment, when they ought to be a
place of pleasure. I believe that
one school separate from the com
mon schools would be sufficient to ac
commodate all children of this class
for many years.
The CHAIRMAN. The question is
on the motion of the gentleman from
Cass (Mr. Maxwell) to strike out
the whole of Section four.
The morion was cot i> greed to
Mr. THOMAS. Mr. Chairman,
there is no difference between the
gentleman from Douglas (Mr. Lake)

REFORM SCHOOLS

287

Wednesday]

MYERS— GRAY-MANDERSON

[July 12

and myself. 1 think there is no dan
ger in leaving it to the Legislature
to say whether it is practicable or
not. I wish to word the Constitu
tion on this matter so that the Legis
lature may exercise their discretion
upon it; but they cannot exercise any.
discretion as the Section stands.
The CHAIRMAN. The question is
on the amendment as offered by the
gentleman from Nemaha (Mr.
Thomas.) The amendment was agreed to.
Mr. MYERS. Mr. Chairman, I
move to strike out all after the word
"law" in the 21st line.
Mr. GRAY. Mr. Chairman, I
shall favor this motion to strike out.
I say that if the provision with re
ference to these reformatory schools
could be made what I think it ought
to be made I should favor it, but in
the shape it is now, with these
amendments tacked on it, I cannot
support it. The committee reported
this Section with the word "may
in place of "shall" immediately fol
lowing the word "law." They were
willing to report that provision, leav
ing it entirely to the discretion of
the Legislature, believing that the
time might come in this State when
the condition of the people would
demand a system of education and
reform. I believe, as a general thing
it was not considered by that com
mittee that that time had come yet.
It was not believed necessary to
inaugurate this school at the present
time. I should be willing to support
the last part of Section four, if the
whole matter could be left with the
Legislature to establish this kind of
schools at the proper time. I agree

witu the gentleman from Cass (Mr.
Maxwell) that these institutions will
necessarily be expensive. To appro
priate school money to the mainten
ance of these institutions, would, I
believe, be very unpopular with the
people of this State. The Chairman
of that committee enforced his views
upon this committee of the Whole
and was sustained. The word
"shall" was put in in place of "may;"
and I believe the members do not
reflect fully upon that question; and
1 trust no private information will
cause them to stand by the vote. I
trust this Convention will now con
sider that the word "shall" makes it
obligatory upon the first Legislature
to create a number of these reforma
tory schools and draw upon the com
mon school fund for their mainten
ance. It seems to me there is no
occasion for the immediate estab
lishment of them. It would be im
proper to appropriate so much com
mon school fund as would be neces
sary. Therefore, I shall vote to
strike out this portion of the section
as it stands now.
The motion was not agreed to.
Mr. MANDERSON. Mr. Chairman,
I move the adoption of the Article.
Mr. NEWSOM. I move to strike
out the words "safe keeping" in the
fourth line.
Mr. ESTABROOK. I would like
to say a few words in regard to that.
We can all imagine some instances
in our own knowlege. I recollect in
the city of Omaha where there are
two boys in a family. A lumber deaL
er lost money from his office: other
individuals in the city lost money
from their tills; a system of detection

288

REFORM SCHOOLS

Wednesday]

ESTABROOK— MAJORS— HASCALL

[July 12

was set on foot and it was found that
two brothers, small boys, (belonging
to a respectable family,) and others,
had combined to travel about the
city and in this way they had contin
ued to pilfer money from tills. These
boys eight, ten and twelve years old,
were brought before the police court.
They were tried, found guilty and
had to be discharged as they were too
young to be sent to prison. They
were hardly conscious that they had
committed a crime. What shall be
-done with them? There are but few
of them comparatively. It is not
true that the country does not have
them, because in proportion to the
amount of population, as much is
done there as in the city. Now these
particular instances have come under
my own observation and have
prompted me, to a very considerable
extent, to embrace the doctrine. In
regard to the safe keeping of them
I tell you, if you do not provide some
safeguards, some means by which
they may be restrained and educated,
you cannot keep them. You might
as well undertake to keep a flea un
der your hand. Mother Goose, in giv
ing her method of cooking a rabbit
says first get the rabbit. You cannot
educate him unless you retain him,
not keep him as a prisoner, that is
a mistake. Not to hold him as a
criminal; not to put the mark of
Cain upon his forehead; but rather
to prevent the mark of Cain from be
ing placed there. Place him where
he shall have good instruction and
example set before him, where he
may be made a good and useful citi
zen. How else will you do it? Do
you propose to keep your school

system pure by turning these little
criminals outside of your protection?
My friends, you should do like the
good Samaritan, not visit' those who
are well, but those who are sick. It
strikes me as one of the most laud
able efforts this Convention can put
forth. The CHAIRMAN. The motion is
on striking out all after the word
"lay" [law] in the fourth line.
The motion was not agreed to.
Mr. MAJORS. I move that we re
consider the vote that changed the
word "may" to "shall" in the fourth
line. The CHAIRMAN. A motion to re
consider is not in order in Committee
of the Whole.
Mr. MAXWELL. If the gentle
man from Nemaha voted in the af
firmative he has a right to move a re
consideration. Mr. HASCALL. Mr. Chairman, I
consider in Committee of the Whole,
a motion to reconsider is improper.
The whole subject matter is in the
hands of the Committee until such
time as they rise and make their re
port. Any time before they rise, if
they see fit to change anything they
have the power to do it. We are try
ing to settle details here, and if it is
the sense of the Committee to report
this section back with the word
"may" instead of "shall", I think the
Committee have the right to do so.
Mr. MAJORS. There is no differ
ence of opinion between the gentle
man from Douglas (Gen. Estabrook)
and myself as to the right of the
Committee to take any action they
please in this matter, and I do not
know any better way we can take

REFORM SCHOOLS

289

Wednesday]

NE WSOM-ESTABROOK-MA JORS

I July

than by a motion to reconsider. And
I think it is one of the means by
which we can reach at the sense of
this convention.lt is as short a way,
probably as any other.
Mr. NEWSOM. Cushing's Manual,
which we take as an authority, in the
absence of any special rule says: —
257 — It is usual in legislative bod
ies, to regulate, by a special rule, the
time, manner, and by whom, a mo
tion to reconsider may be made; thus,
for example, that it shall be made
only on the same or succeeding day —
by a member who voted with the ma
jority, or at a time when there are
as many members present as there
were when the vote was passed; but,
where there rs no special rule on the
subject, a motion to reconsider must
be considered in the same light as
any other motion, and as subject to
no other rules.
Mr. THOMAS. If it can be done in
the House there is no rule to prevent
it being done in the Committee of the
Whole. We may find something we
desire to go back and amend.
The CHAIRMAN. I am in doubt
about the rule, but I will put the mo
tion. I am satisfied the motion is not
in order.
The motion was agreed to.
The CHAIRMAN. The question
now recurs on the motion of the gen
tleman from Douglas (Mr. Esta
brook.) Mr. ESTABROOK. Let me pre
sent this condition of affairs.
There is no mandamus or any other
kind of a damus to constrain the Leg
islature to do what it does not want
tb do. But we want to preserve con
sistency. The first part of this sec
tion is imperative. It requires that
every scholar shall be educated as
19

far as practicable. Now, let that be
carried into effect, but let there be a
discretion given to the Legislature in
regard to others; and let that body
refuse to act in the premises, and
then, if this scholar is turned out of
the public schools, I ask what will
you do with him? You find, in some
schools, when you compel the child to
attend, you often have an incorrig
ible rogue of a boy, so bad as to spoil
the entire school while present; so
bad as to constrain you to expel him
from the school. I ask now, my
good friend the gentleman from Ne
maha (Mr. Majors,) what are you
going to do with that child?
Mr. MAJORS. We have just pass
ed a resolution saying that this pow
er shall be left to the discretion of
the Legislature, as to sending such
boys where it is practicable to send
them. And all I ask in this matter is
that you indicate it sufficient to give
the Legislature the basis upon which
to establish such schools; and then I
am entirely willing to leave it to the
future Legislature.
Mr. ESTABROOK. Then it will
require us to change the word "shall"
in the first part of the section. I
understand the gentleman from
Nemaha (Mr. Thomas) to say there
are some districts where there are
children living so far from school
that it is impossible for them to at
tend. But in those regions where it
is practicable; in those portions
where you constrain them to send
children to school, and you find an
incorrigible boy whom you cannot
keep in your school under ordinary
discipline, I ask what shall be done

290

DISTRICT SCHOOLS

Wednesday]

MAJORS— THOMAS— McCANN

[July 12

with him? The Legislature has for
borne to establish reformatory
schools, while tney have been con
strained to establish the compulsory
schools. You turn him into the
streets, and will finally bring him in
to the penitentiary.
Mr. MAJORS. We will turn him
over to that clause of the section
where he is not educated by some
other means.
Mr. THOMAS. I hope the word
"shall" will be allowed to remain.
It seems to me this leaves the matter
in the hands of the Legislature to
establish one or more reformatory
schools, just as they may think prop
er. There certainly ought to be some
reformatory schools in the State.
Mr. MAJORS. I am in favor of
leaving it to the Legislature entirely.
I think they will provide schools
when necessary.
Mr. GRAY. I hope every gentle
man will understand this before he
votes. I am in favor of the word
"may". So that the Legislature may,
when the condition of the country re
quires it, establish these reformatory
buildings. Mr. WAKELEY. I move to amend
the amendment by striking out the
words "may establish schools," and
inserting "shall establish a school or
schools." The effect of this, as all
will see, will make it obligatory on
the Legislature to establish one, but
leaves it discretionary whether it es
tablishes more.
Mr. GRAY. I move an amend
ment to the amendment, or rather by
way of a substitute, commencing af
ter the word "and" as follows: "may
when in its opinion, the condition of

the State requires it, establish
schols," etc.
The CHAIRMAN. Gentlemen. The
question is upon the amendment of
fered by the gentleman from Dodge
(Mr. Gray).
The amendment was not adopted.
The CHAIRMAN. The question
now recurs upon the amendment of
fered by the gentleman from Doug
las (Mr. Wakeley).
The Convention divided and the
amendment was adopted. ,
Mr. McCANN. Mr. Chairman, I
now move the adoption of section
four. The Convention divided and the
motion was agreed to.
The Secretary read section five as
follows: Sec. 5. The Legislature shall pro
vide by law for the establishment of
district schools, which shall be as
nearly uniform as practicable, and
such schools shall be free and with
out charge for tuition, to all children
between the ages of five and twenty-
one years.
Mr. McCANN. Mr. Chairman, I
move to strike out, in the 2nd line,
the words, "be as nearly uniform as
practicable and such school shall".
The section will then read — "The
Legislature shall provide by law for
the establishment of district schools,
which shall be free and without
charge for tuition, to all children be
tween the ages of five and twenty-
one years." The object in this is: in
our large towns it has been found
necessary to make the schools differ
very materially from those in more
sparsely settled districts.
Mr. ESTABROOK. Mr. Chair-:
man, I know that when the term.

UNIFORMITY OF PUBLIC SCHOOLS

291

Wednesday]

ESTABROOK— McCANN

[July 12

has been used without qualification,
requiring that the common schools
shall be uniform, much difficulty has
occurred; but here there is latitude
and the discretion which is vested in
the Legislature, is almost tantamount
to striking the clause referred to out.
That is to say, you shall not put up,
in one place High school buildings,
and in another place, in a more sparr
sely settled section, little log school
houses. It seems to me that the
trouble that has been experienced in
other portions of the United States —
I believe they have had consider
able trouble with the term "uniform"
in Indiana — will be of service to us.
The section provides that the schools
shall be uniform as to the books, the
form adopted for teaching, etc., as
nearly as possible throughout the
State. If you had a school of low
grade at one point of the country, it
provides that you could not establish
schools of a high grade in another
part of the country. This section was
copied bodily from the Wisconsin
Constitution, and I know they had
the experience of Indiana in view,
when it was drafted. It seems to
me that while it furnishes a whole
some rule, it does not restrain the
Legislature. Mr. McCANN. Mr. Chairman, The
gentleman has stated this term has
given trouble in the State of Indiana,
and that is true. It has likewise
given trouble, in every State where
it is used. The term has been strick
en out of the school laws of Penn
sylvania, Massachusetts and Indiana.
I think every member here will agree
with me that it is objectionable. The
report contains very many valuable

provisions, which will be of lasting
benefit and honor to our State, but I
do hope that we may get rid of this
objectionable phrase. The Legisla
ture will, no doubt, provide for the
establishment of schools as this sec
tion provides, but they cannot be uni
form throughout the State. .
The CHAIRMAN. Gentlemen, the
question is upon the amendment of
fered by the gentleman from Otoe
(Mr. McCann) to strike out, in the
2nd line the words "be as nearly
uniform as practicable, and such
schools shall."
The amendment was not adopted.
Mr. SPEICE. I move that sec. 5 be
adopted. The motion was agreed to.
The Secretary read section six as
follows: Sec. 6. Provision shall be made by
law for the equal distribution of the
income of the fund set apart for the
support of common schools, among
the several school districts of the
State, in some just proportion to the
number of children and youth resi
dent therein between the ages of five
and twenty-one years, and no appro
priation shall be made from said
fund to any district for the year in
which a school shall not be maintain
ed at least three months.
Mr. MAXWELL. Mr. Chairman, I
move to strike out in the second line
the words "some just."
The amendment was agreed to.
Mr. STEVENSON. Mr. Chairman,
I move that the section be adopted as
amended. The sixth section was adopted.
The Secretary read the seventh
section as follows:
Sec: 7. No University lands. Ag
ricultural college lands, common
school lands, or - other lands which

292

LOCATION OF AGRICULTURAL COLLEGE

Wednesday]

MA JORS— H A S CALL— CAMPBELL

[July 12

are now held or which hereafter may
be acquired by the State for educa
tional purposes, shall be sold for less
than seven dollars per acre.
Mr. MAJORS. I move the section
be adopted.
The seventh section was adopted.
The Secretary read section eight as
follows: Sec. 8. All funds belonging to the
State for educational purposes, the
interest and income whereof only to
be used, shall be deemed trust
funds held by the State as trustee,
and the State shall supply all losses
thereof that may in any manner oc
cur, so that the same shall remain
forever inviolate and undiminished;
and such funds, with the interest and
income thereof, are hereby solemnly
pledged for the purposes for which
they are granted and set apart, and
shall not be transferred to any other
fund for other uses.
Mr. HASCALL. Mr. Chairman, I
move its adoption.
The section was adopted.
The Secretary read the ninth sec
tion as follows:
Sec. 9. The location of the Uni
versity and Agricultural college at
the Capital of the State, as already
established by existing laws,, is hereby
sanctioned and confirmed, and said
institution is hereby declared to be
the University and Agricultural
College of this State; provided, that
other Agricultural Colleges and ex
perimental farms may be established
by the Legislature when the wants
of the people may so require.
Mr. CAMPBELL. Mr. Chairman,
I move to strike out all after the
word "State" in the first line, to the
word "State" in the 3d line, and in
sert "shall be established" between
the words "College" and "at" in the
first line. That will be one amend
ment and the other is in the second
part, to strike out the word "many"

in the 4th line, and insert "shall" in
the place of it; also to strike out the
words "the wants of the people may
so require," in the 4th and 5th lines
and insert in lieu thereof the words
"there are funds sufficient to sup
port such colleges." I see no use
of that law which was passed by the
Legislature establishing this Uni
versity. It is like the dragon seen
in the vision by John, it has seven
heads and one hundred horns. I
don't believe there are enough boys
in the State to establish a freshman
class, and yet under that law the
first thing that these regents did was
to elect a Chancellor, who has been
under pay from last June at a sal-
ery of $5,000, and other professors
whose salaries amount to $13,000.
Mr. KIRKPATRICK. I will re
mind the gentleman that there are
six colleges here instead of one.
Mr. CAMPBELL. Six depart
ments, they are called, First, "Col
lege of Ancient and Modern Litera
ture, Mathematics and the natural
Sciences. Second. A college of Agriculture.
Third. A College of Law.
Fourth, A College of Medicine.
Fifth. A College of Practical Sci
ence, Civil Engineering and Mechan
ics. Sixth. A College of Fine Arts,
and then it goes on to name the dif
ferent departments. This is the drag
on with seven heads and one hun
dred horns. There has only six horns
appeared here yet as professors. My
object is to establish Agricultural
Colleges independent from the State
university, and in every county, to
teach our boys how to till the land

LOCATION OF AGRICULTURAL COLLEGE

293

Wednesday]

BALLARD— ESTABROOK— HASCALL

[July 12

and how to take care of their child
ren. Mr. BALLARD. I wish to ask the
gentleman if this is the first beast of
that character he has seen or heard
of in or about Lincoln?
Mr. CAMPBELL. Well • I have
never seen any.
Mr. ESTABROOK. I thought I had
the book containing the act of Con
gress giving land for the purpose of
Agricultural Colleges. It provides
we shall erect a building within a
given time out of our own funds,
and the object of making this provis
ion in the Constitution was to show
that, within the time, we had com
plied with that law. Otherwise the
time may have elapsed, it will elapse
before by any possibility or chance
or probability we can erect an Agri
cultural College building, so as to be
within the meaning of that act. The
language implied here is for the pur
pose of showing on the face of our
Constitution that we had complied
with the law, and within the given
time built our Agricultural College
building. Before we strike out any
thing we had better get the law of
Congress. By prompt action on the
part of the Convention we have res
cued these lands. The object is to
declare positively that the building
erected as a College should be deem
ed the Agricultural College; and so
established, so as to show that we
had in good faith complied with the
provisions of the acts of Congress.
I see no harm done by declaring it so.
I would not capriciously charge this
1 unless some good result was to be at
tained. It is done in view of the ex
plicit provisions of that act.

Mr. HASCALL. Mr. Chairman, I
have had occasion to examine the pro
visions of the law of Congress in re
lation to this, and although I am not
able to state at this time, the pre
cise time we had to erect this build
ing, still I am satisfied that it is too
late to undertake to comply with the
provisions of that act after this time;
therefore we must consider the build
ing already erected, which was erect
ed in accordance with the law of the
Legislature, as the Agricultural Col
lege. That being the case I think
it highly proper this provision should
be inserted in the Constitution,
showing that we announce that
building as our Agricultural College.
Mr. CAMPBELL. If I remember
right, we are entitled to a certain
quantity of land 'in proportion to the
number of Senators and Representa
tives we have in Congress, and this
law was passed as a necessity in or
der to carry out the requirements of
Congress making the grant to the
State. The time has passed for fur
ther action in that respect, therefore
we should sanction this location and
the erection of this building as the
Agricultural College of the State.
Afterwards we can build more Agri
cultural Colleges.
Mr. HASCALL. The point I made
was this. The erection of this build
ing secures the land to the State:
it complies with the requirements
of the acts of Congress, which gives
us 30,000 acres for each of our three
members of Congress. If the gentle
man wishes afterwards to establish
Agricultural Colleges and experimen
tal farms in the different counties
of the State, he has the privilege of

294;

LOCATION OF AGRICULTURAL COLLEGE

Wednesday]

GRAY-STRICKLAND-MCCANN

[July 12

doing so. So far as putting in a pro
vision that we will build them when
we get the money, I am not satisfied
with a provision of that kind..
Mr. GRAY. I desire to offer an
amendment to the amendment, that
we strike out all after the word
"State" in the first line to the words
"is hereby" in the second line. The
object, Mr. Chairman, of the gentle
man from Otoe in making his mo
tion I understand to be simply this — ¦
to get rid of adopting, or confirming,
as it were, to make a part of this
Constitution, particular acts of the
Legislature establishing this univer
sity and Agricultural College, so
that future Legislatures can regulate
it as they see fit. That portion which
I move to strike out only refers to
the existing law on the subject. It
still establishes the university and
Agricultural College at the Capital.
Mr. STRICKLAND. I think there
is some mistake in regard to this
law. There was a law of the Twelfth
Congress and a subsequent one, I
have sent for the book and it will be
here in a few minutes.
Mr. GRAY. This is another law,
Mr. STRICKLAND. I am speaking
of acts of Congress which gave Agri
cultural Colleges scrip and after
wards made applicable by a special
act, to the State of Nebraska.
Mr. GRAY. The law referred to
here and the only one that is ob
jectionable that the gentleman had
in mind, is this, it is an act of the
Legislature of , this State approved
February 15, 1869; and we find this
section in it: "The several buildings
of the university shall all be erected
within a radius of four miles from

the State House." It is a very
strange law, and needs reformation
and amendment very much, and for
that reason I hope this Convention
will not adopt this law and tack it
to the Constitution; and place it in
such a shape that hereafter, for all
time to come, we shall labor under
all the disadvantages that this lav
will place us under. I trust we shall
strike out this portion of the section
which seeks to tack this objection
able law to the Constitution itself.
Not that I care anything about it,
all there is about the laws of Con
gress on this subject is this, they
grant certain lands for Agricultural
purposes; it became necessary to es
tablish an Agricultural College with
in a given time in order to get the
benefit of that donation of land, and
hence I think it is necessary at this
time. I think the time is about up,
and, maybe, is up already. I am sat
isfied it will, at least, be prudent for
us to establish, by the Constitution,
an Agricultural College. So I desire
to retain that portion of the section
which does establish and recognize
the fact of an Agricultural College
at the Capital. , But the law relating
to the university I leave that it may
be amended.
Mr. McCANN. The law to which
the gentleman has referred is no
doubt the one passed July 2, 1862,
granting lands for the erection of
Agricultural Colleges. We have had
a subsequent act since we have been
a State, making that law of 1862, ap
plicable to Nebraska. Four years
of that time has already expired.
We have only one year in which we
can erect our agricultural building;

LOCATION OF AGRICULTURAL COLLEGE

295

Wednesday!

McCANN— STRICKLAND

[July 12

and we all know Mr. Chairman, that
we do not propose to build an Agri
cultural College during that time,
hence the object of this section is
instead of calling this university
building the university and agricul
tural college of the State of Nebras
ka; hereby securing the donation of
90,000 acres of land which have al
ready been selected for this purpose.
All that I understand section nine
to aim at is "the location of of the
University and Agricultural College
at the Capital of the State as already
established by existing laws." I do
not understand that we fear anything
detrimental to the interests of the
University or Agricultural College
which may or may not be in that act.
It is already established, so far as
location is concerned, and other Agri
cultural Colleges and experimental
farms may be established by the Leg
islature- when the wants of the peo
ple may so require. I hope, Mr.
Chairman, this section may be re-
adopted as it is. I care not what may
have been the imperfections of the
act of 1869; it will not hinder us in
going on in the organization of ou.
University and Agricultural College,
as contemplated by the law of Con
gress, and thereby securing as I said
before, the 90,000 acres to which
we are entitled, and which have al
ready been selected. We already
have a building, and let us say we
propose to use it for the purpose of
confirming the location already made.
That is all we wish to accomplish,
as I understand it, in this ninth sec
tion, which gives the Legislature
power to provide for the wants of
the people as it may be required.

Mr. STRICKLAND. Let me call
the attention of the gentleman to the
law of Congress, of July 2, 1862. It
enumerates the conditions, etc. Here
is a section:
Seventh. No State shall be entitl
ed to the benefits of this act unless
it shall express its acceptance there
of by its Legislature within two years
from the date of its approval by the
President. Now this condition is transmitted
to the other act of Congress that re
lated to Nebraska. But the meaning
of the Committee, I understand is,
in this well-worded article, that it
shall embrace, as a condition, this
college, and designate it as the col
lege, showing that we have accepted
the conditions of this act, and are
thereby entitled to the land. From
what my friend from Otoe (Dr.
Campbell) and my friend from Dodge
(Mr. Gray) say there is a wonderful
proposition here. "The buildings
shall all be erected within a radius
of four miles of the State House."
If we make the calculations upon the
price we have set upon these lands,
$7. per acre, we shall realize the sum
of $630,000. Now, if we calculate it
at what it will be worth in the fu
ture time you will have a million
dollars. One of these Colleges might
be wanted in Dakota ; we might claim
one in Douglas county. "The several
buildings of the University shall all
be erected within a radius of four
miles of the State House." But, sup
pose you put your State House on
wheels, and it goes West, will you
follow it up with these buildings.
I think there is something startling
ih the proposition of the gentleman
from Dodge (Mr. Gray.)

296

LOCATION OF AGRICULTURAL COLLEGE

Wednesday]

S TRICKL AND— MA JORS— GRAY

[July 12

Mr. TOWLE. Is there anything In
the law which specified the time by
which we must build an Agricultural
College? Mr. STRICKLAND. Yes. I will
read the third sub-division of the
fifth section of the act of Congress
of 1862:
Third — Any State which may take
and claim the benefit of the provis
ions of this act shall provide within
five years, at least not less than one
College, as described in the fourth
section of this act, or the grant to
such shall cease; and said State shall
be bound to pay the United States
the amount received of any lands
previously sold, and that the title to
purchasers under the State shall be
valid. The wise provisions in this law are
that you may build one college here,
and another there, and scatter them
about. But the Legislature unwisely
grouped them. "The several build
ings." There might be twenty. We
have money enough to wall this city
in with them. "All shall be erected
within four miles of the State
House." If you name this as one col
lege, and then permit the State, in
coming time, to locate other colleges,
then I am in favor of the proposition.
Otherwise, I shall be against it.
Mr. MAJORS. Does this section
have reference to the adoption of the
law entire, or simply the location as
adopted by existing laws. I had
reference, in the Committee, to the
location. The section says "the lo
cation of the University and Agricul
tural College at the Capital of the
State, as already established by ex
isting laws, is hereby sanctioned and
confirmed, etc." I do not think it nec
essarily follows, Mr. Chairman, that

we confirm and adopt all the law tne
Legislature has made in connection
with the location of the University
here; but simply with regard to the
locating of all these buildings here
for ever. If it is of course I am
opposed to it. But if it, is simply
the location of the present University
as established by existing laws, that
we confirm in the location here, I
shall support the measure.
Mr. GRAY. My understanding,
Mr. Chairman, is simply this — and I
presume every lawyer on this floor
will see it in the same light-— take
the words as here used; make that
a part of the Constitution as it now
is it refers right back to the act of
our Legislature which is complained
of by the gentleman from Otoe (Mr.
Campbell), and which makes all the
provisions a part of the Constitution
itself. It takes the College as estab
lished, with all its machinery for its
working, and under that law; and
that law becomes a part of the defini
tion of the institution itself. When
it provides for three or four buildings
scattered about within a certain ra
dius, it takes that as the law pro
vides; and no gentleman who exam
ines that law, can fail to see that
there are many objectionable fea
tures in the arrangement. All I seek
to do is not to tie the hands of the peo
ple of this State by making an ob
jectionable provision a part of this
Constitution. It says the State shall
recognize the existence of an Agri
cultural College; and I guess there is
no question about it. But it is not
necessary for us to recognize and
confirm as a part of the Constitu
tion, the law which regulates the

LOCATION OF AGRICULTURAL COLLEGE

297

Wednesday)

STRICKLAND— HASCALL

[July 12

College. It is only a question of the
location. We can recognize and es
tablish that fact ourselves if we
choose. But it is not necessary or
proper that we attach this objection
able clause to the Constitution and
make it binding on the people in all
future time, but leave it where they
can provide for its different depart
ments; the number of its professors;
its governor, etc.
Mr. STRICKLAND. Mr. Chairman,
It seems as though, by inserting one
word, this difficulty can be obviated.
I think no one will say we should
endorse this question of law, when
it is so defective. I will read sec
tion 9:
"The location of the University and
Agricultural College at the Capital of
the State, as already established by
existing laws, is hereby sanctioned
and confirmed, and said institution
is hereby declared to be the Univer
sity and Agricultural College of this
State; provided, that other Agricul
tural Colleges and experimental
farms may be established by the Leg-
lature when the wants of the peo
ple may so require."
We say the Act relating to this
matter, was a local act passed by the
Legislature. The act of Congress
provides that "any State which may
take or claim the benefit of this Act,
shall provide, within five years, at
least one Agricultural College" that
is the way the law of Congress reads.
Now we may have one College, or
half a dozen. I say that this pro
vision should not be adopted and
unless this city of Lincoln is to be
declared the Eternal City of this State
we had better not place this matter
in such shape that the Legislature
will not be able to take action upon
it.

Mr. HASCALL. Mr. Chairman, I
take it upon myself —
Mr. STRICKLAND. (reading)
"The several buildings of the Uni
versity shall all be located within
four miles of the State House" —
Mr. HASCALL. That relates to
the University, and not to the Agri
cultural College. We undertake to
explain in the Section what is meant
by "the location." We say by this
Section, -that the location of one
Agricultural College is already es
tablished — using a single term — and
that that location is confirmed here.
The latter part of the sentence makes
it brief and clear and provides that
"other Agricultural Colleges may be
established by the Legislature, when
the wants of the people may so re
quire." This Section clearly con
templates, and says in so many
words, that whenever the Legislature
wants to establish Experimental
Farms and Agricultural Colleges,
they may locate them wherever the
will of the people may indicate they
want them located — in any part of
the State. This location referred to
here means only one Agricultural
College. It is recognized, in this
Section, as an Agricultural College
as well as a University, and its loca
tion here, is confirmed by the Con
stitution. And the other part of
the Section comes in to say that
other Agricultural Colleges may be
established by the Legislature, and
they may establish them and locate
them wherever they pleased That
is the natural inference. It is only
proper we should confirm the loca
tion of this building here in order
to comply with the provisions of the

298

COLLEGES AND EXPERIMENTAL FARMS

Wednesday]

HASCALL— McCANN— ESTABROOK

[July 12

Act of Congress. The gentleman
from Otoe (Mr. Campbell) wanted
other Agricultural Colleges located
throughout the State and this pro
vision says that the Legislature may
establish other Agricultural Colleges
throughout the State.
Mr. STRICKLAND. Mr. Chairman,
I would like to explain to my learned
friend from Douglas (Mr. Hascall)
the inconsistencies of his arguments.
He says the location of the Univer
sity and Agricultural College should
be ratified by the Constitution. Let
us read from the Section "as already
established by existing laws" and
then a little further on it provides
that other Experimental Farms
and Agricultural Colleges may be
established by the Legislature. Now,
look at the inconsistency of this. We
adopt a provision which says the lo
cation of the Agricultural College
of the State, at the Capital of the
State as already established by exist
ing laws, and then make provision
for several.
Mr. HASCALL. Mr. Chairman,
The error that the gentleman falls
into is — he is trying to make the
provisions of the law a part of the
Constitution. Now the law says we
may establish other Agricultural
Colleges, but that one College is al
ready located and built, and we are
asked to recognize and confirm this
location. You must look at this sec
tion as a whole. The fore part of it
merely confirms the location of the
present Agricultural College and the
latter part makes provision for other
colleges. We proceed in the latter
part of the section, to say that other
colleges and experimental farms may

be established. I think it is proper,
and it is necessary that we have
something standing to show that we
have complied with the act of Con
gress. Now how does the learned
gentleman from Douglas (Mr. Strick
land) like this. He says the section
is a plain contradiction; but I think I
I have shown, that it is perfectly
clear and explicit.
Mr. McCANN. Mr. Chairman, I
think I can offer a proposition which
will be satisfactory to the Committee.
I will read it:
The University and Agricultural
College at the Capital of the State
is hereby declared to be the Univer
sity and Agricultural College of this
State: provided that other Agricul
tural Colleges and Experimental
Farms may be established elsewhere
by the Legislature where the wants
of the people may so require.
I wiH state that all ambiguity in
the fourth line, is removed. I have
inserted the word "elsewhere" in that
line. Mr. ESTABROOK. It may be
claimed that the word "elsewhere"
takes away all the ambiguity, but I
think it adds to it. We have a law
which provides that certain lands
should be granted for the purpose
of sustaining an Agricultural College
and provides that in five years, after
the State is admitted into the Union,
at least one Agricultural College
shall be established and also provides
for the establishing after that of ex
perimental farms. In 1867 the Leg
islature passed an act which seems
to have escaped the observation of
the gentleman. I will read it.
The State University and the State
Agricultural College shall be endow
ed as one educational institution, and

LOCATION OF AGRICULTURAL COLLEGE

299

Wednesday]

ESTABROOK— STRICKLAND

[July 12

shall be located upon a reservation
selected by the said commissioners,
in said "Lincoln," or upon lands be
longing to the State, and adjacent
to the said town of "Lincoln," and
the necessary buildings shall be
erected as soon as funds can be se
cured. It was a matter of considerable
concern as to the method in which
this College should be erected;
but they hit upon this plan of
combining it with the University,
and located it at Lincoln, and
sold Lincoln lots to assist in the erec
ting of the building. There seems
to have been some doubts about
whether it was meeting the provis
ions of the act of Congress. But they
went on, all the time calling it the
Agricultural College and University.
and in 1869 an act was passed entitl
ed "An act to establish the Univer
sity." There have been acts of the
Legislature touching the location of
this Agricultural College and that
location has been recognized as estab
lished. Now, what this section de
signs to do is, not only to say that
the location is here: but that it is
here under all these existing laws,
showing that, commencing in 1867,
immediately after the passage of the
act, we have complied with the pro
visions of the act. We simply say
in this section the location, not the
Legislation, of the Agricultural Col
lege here, which was made in 1867
is sanctioned and confirmed. It is a
mistaken view to claim that the law
in reference to the University, is in
cluded. One additional word, sir, in
regard to the last clause. The act
of Congress was passed in 1866 ex
tending the provisions of this act
over Nebraska; and under that we

were expected, within five years, to
erect one College, and in 1867 we did
comply with that act in locating this
University and College here. In any
event there can be but one college,
for the time has expired. Perhaps we
may when we get more representa
tion. By this section we say that the
location of this College is confirmed
to the United States government, bap
tized in 1869 and given a name; we
now re-baptize it, and say that it is
located at Lincoln.
Mr. STRICKLAND. I dislike to
take up the time of this Convention,
but Mr. Chairman,- I am aware that
no gentleman on this floor can use
the English language to express his
views better than my colleague (Mr.
Estabrook). But sir, if I should
should stand here all day with my
eyes resting on a mule, and he should
should try to make me think it was a
horse he would fail. He says that
this section only refers to the loca
tion of this college. The location is
what we complain of. Let me read
you — "the location of the University
and Agricultural College at the Cap
ital of the State, as already estab
lished." How established by existing
laws? Read the eleventh section of
the law, it says this: "The several
buildings of the University shall be
within a radius of four miles from
the State House." And section
thirteen "The immediate government
of each college shall be by its own
faculty." Now it is provided by Leg
islative enactment, that the location
shall be here; that it is permanently
located here, and within a radius
of four miles. It shall forever' ex
ist. If this proposition is not true,

300

LOCATION OF AGRICULTURAL COLLEGE

Wednesday]

TOWLE

[July 12

then my head is worse at fault than
I ever knew it. It does seem so
plain. When we recognize the exist
ing law what do we approve? The
location. And that is what we com
plain of. It would be a very superior
court indeed that would take any
other view than this of it. I should
say, unless my head is wonderfully
at fault, with a mind wonderfully dis
torted to understand the plainest of
English language, expressed in the
plainest possible words.
Mr. TOWLE. It appears to me
that the grounds taken by the gen
tleman from Dodge (Mr. Gray) and
the gentleman from Douglas (Mr.
Strickland) are correct. It further
seems to me that this thing might be
wholly struck out of the Consti
tution, that it has no business what
ever there; and if there is any obT
ject in placing it in the Constitution
it is for two objects — one forever and
irrevocably fixing the Agricultural
College at Lincoln, and the second
of placing the funds which are here
after to rise from the sale of these
Agricultural lands out of the grasp
of these regents of the State Univer
sity. Gen. Estabrook spoke directly
as to the location, and that it was
to come within the Congressional
law, and for that purpose this was
placed in the Constitution. What is
that Congressional law? It is, if we
build an Agricultural building within
five years, we shall be entitled to so
much land. If the Legislature ex
presses its concurrence; if it shall
afterwards build this Agricultural
College and be entitled to the 90,000
acres, can we get it by locating an
imaginary Agricultural College here?

If it did say so what effect and what
bearing would it have at Washing
ton? There are certain conditions
and regulations established, to be
complied with before we can draw
our Agricultural scrip. In the first
place we accept the conditions of the
Act and second have built a college.
I do not believe you will find half a
dozen States having within their
borders what are termed purely Ag
ricultural Colleges. They are all
built with Agricultural scrip. Two
or thf ee years ago it was the bone of
contention in Illinois and New York,
whether they should build separate
or different Agricultural Colleges, or
whether they should call a certain
college an Agricultural College. We
have here a building. We nnd in
it no Agricultural department. As I
understand.it, there is something in
the law in relation to an Agricultural
professorship; but I have not been
informed that there is any. I be
lieve it is in the provisions of the
statute to make this showing to the
United States, that we have built an
Agricultural College. I do not be
lieve it is in the province of the Leg
islature to show that we accept that
act; because the language of the act
plainly is that the Legislature must
do it, and they have allowed two
years to slip by. It is not the fault
of this Convention; and if the two
years have expired we cannot remedy
it. We can make the showing that
this building is an Agricultural Col
lege, and the lands will be issued,
and we can build hereafter under
this same fund and with the same
money. I do not believe the people
of this State wish the Agricultural

LOCATION OF AGRICULTURAL COLLEGE

301

Wednesday]

McCANN-TOWLE-GRAY

[July 12

College to be located here, and I do
not believe they are very anxious
that the funds resulting from the
sale of these lands should be irrevoc
ably placed in the hands of this Board
of Regents to spend.
Mr. McCANN. I wish to correct a
statement made by my friend. He
says other States have not given their
Agricultural College lands to existing
institutions. That is certainly an
error. Mr. TOWLE. I said there had not
been half a dozen Agricultural Col
leges built since the passage of this
act. They have called other institu
tions Agricultural Colleges.
Mr. McCANN. That is what we
are proposing to do to day. Those
who have examined this 'matter will
see that Connecticut, Rhode Island,
New Hampshire, Delaware, New
Jersey, Kentucky, Wisconsin, Minn
esota, North Carolina, and Califor
nia have erected buildings. New
York gave her 90,000 acres to Cornell
University, and Indiana to Purdue
University. We affirm that this Uni
versity of the State of Nebraska is a
University and Agricultural College,
in order to secure the 90,000 acres
of land. Unless we do this we cer
tainly fail to secure that land, it is
a legal necessity.
Mr. GRAY. I desire to call atten
tion to the motion we are now con
sidering lest some have forgotten it;
it is to strike out all after the word
"State", up to and including "insti
tution" in the second line. I desire
also to notice very briefly the peecu-
liar argument of the two gentlemen
from Douglas (Messrs Hascall and

Estabrook.) I understand them to
say, that to take the section as it
stands is nothing more than to adopt
that portion of the law which locates
the Agricultural College and Univer
sity, and cannot be construed to
adopt or attack the laws referred to
in this section of the Constitution.
Now these gentlemen . must have ex
amined this subject very hastily. How
does it read? "The location of the
University and Agricultural College
at the Capital of the State, as already
established by existing laws is hereby
sanctioned and confirmed." What
do the words "as already establish
ed" mean? It means in the form
already established, and does not
mean anything else. No court in
the world could ever decide that it
means anything else. Not the loca
tion merely, but the establishment of
it. That is what it means, the estab
lishment of it, the manner and form
in which it is established, the number
of professors, the buildings contem
plated, all is included here, and made
a part of this section itself. Every
thing pertaining to the establishment
of institutions contained in those
laws is here enacted and made a part
of this section. And I defy gentlemen
to take this up and construe it in the
light of grammatical construction in
the English language, or legal con
struction either. Let then take it
up and look at it and they them
selves will change their minds, "At
the Capital of the State, as already
established by existing laws, etc."
Can you make anything else out of
it? Mr. PHILPOTT. I have listened to
this debate with considerable inter-

302

LOCATION OF AGRICULTURAL COLLEGE

Wednesday]

PHILPOTT— GRAY— MCCANN

[July 12

est. Some individuals appear to me
to have indulged in debate without
reflection, and while they have been
talking I have been attempting to
study. We have an Agricultural
College. The act provides for the
establishment of a University, and
that University shall consist of six
departments, one of which is an Ag
ricultural College. I believe that
University has been established, and
along with it, the Agricultural Col
lege. Allow me to say that I do not
concur with the gentleman from
Douglas (Gen. Estabrook) as to this
point that we must now confirm this;
but regard this University as the
Agricultural College, else we cannot
hereafter erect another building. For
this reason in 1866, Congress passed
an act by which it is provided that
territories coming into the Union as
States shall three years afterwards,
by their Legislature, declare their
acceptance, under the act of Congress
which amended the act of 1862. And
within five years after that time,
they must establish or build one Agri
cultural College.' Now, we were ad
mitted into the Union in 1867. In
1869, on the 12th of February, un
der the act of Congress of 1866, we
accept the land grant within the
three years. From that time we had
five years in which to erect an Agri
cultural College. That was done on
the 12th of February, 1869. And
what did they do three days after
wards? They passed the act which
provides for the establishment of a
University for the State, ?nd express
ly provides for the Agricultural Col
lege. I think, under the Act of Con
gress of 1866, we have accepted the

land grant. And it is provided that
in that institution there shall be an
Agricultural College. Has the Legis
lature placed them in a position to
claim the Agricultural land? If not
it would be well for the people to see
to it that an Agricultural College be
erected. I am of opinion we have an
Agricultural College, and that it is
here. As to the phraseology I differ
from the gentleman from Dodge (Mr.
Gray). If there is any doubt about
it I now offer, as a substitute, this:
"The location of the University and
Agricultural College at the Capital
of the State, as hereby sanctioned
and confirmed, and such institution is
hereby declared a University and Ag
ricultural College of this State
provided that other Agricultural Col
leges and experimental farms may
be established by the Legislature
when the wants of the people may so
require." I have it precisely as the origi
nal section stands with the ex
ception that in the first line I leave
off the word "is", and in the next
"already established by existing
laws." Mr. GRAY. I do not accept the
substitute. Mr. McCANN. I would ask the
gentleman from Lancaster (Mr. Phil
pott) wherein his amendment differs
from the one now under considera
tion. I hope that it will state that it
is the University instead of a Uni
versity. Mr. GRAY. I will withdraw my
amendment. Mr. WAKELEY. I am not yet
convinced that there is any necessity
for this section reported by the Com
mittee on Education, or any similar
section. I have not investigated the

LOCATION OF AGRICULTURAL COLLEGE

303

Wednesday]

WAKELEY— McCANN

[July 12

law touching this subject. My infor
mation in regard to it is such as I
have derived from this discussion of
to day; but if the Legislation of Con
gress has been wlat is stated here in
this debate, we certainly have ample
time yet to provide by law, for the
establishment of an Agricultural Col
lege. And we b-o-ve no need for put
ting anything oi_ ihat subject in the
organic lav *. find in the joint reso
lution of ti^s State, accepting the
Act of Congress of the United States,
touching these Agricultural lands,
this recital:
WHEREAS: That by Act of Con
gress, approved July 23, 1866, entitl
ed an act to amend the fifth section
of an act entitled an act donating
public lands to the several States and
territories, which may provide Col
leges for the benefit of agricultur
al and mechanical arts, approved July
2, 1862, so as to extend the time
within which the provisions of said
act shall be accepted and such Col
leges established. It is provided that
when any Territory shall become a
State and be admitted into the Union,
such new State shall be entitled to
the benefits of said act of July 2,
186,2, by expressing the acceptance
therein required within three years
from the date of its admission into
the Union, and providing the college
or colleges within five years after
such acceptance as prescribed in said
act. Now, therefore
BE IT RESOLVED: by the Legis
lature of the State of Nebraska, that
the said act of Congress of the Unit
ed States, is assented to and accepted
hy the State of Nebraska, with all
the conditions, restrictions, and limi
tations therein contained; and the
faith of the State of Nebraska is here
by pledged to the faithful perfor
mance of the trust thereby created.
It is provided "that when any ter

ritory shall become a State and be
admitted into the Union, such new
State shall be entitled to the benefits
of the said act of July 2, etc." This
act of acceptance on the part of the
State of Nebraska was approved Feb
ruary 12, 1869; and we therefore
have five years from that date to
erect or provide for the college which
the Act of Congress requires. If
the Act of Congress is correctly re
cited in this Act of our Legislature,
it admits of no doubt but that our
Legislature has until the 12th of Feb
ruary, 1874, to erect the college
which entitles us to these lands. I
would ask the Chairman of this Com
mittee if he has so far investigated
this subject as to state whether this
Act of Congress is correctly recited.
If that be so, Mr. Chairman, I am op
posed to any constitutional provis
ion on this subject, and while my
own opinion is that we would only
improve the location, and at this
place, yet other gentlemen might
think differently. Yet, lest we might
be making this law perpetual by a
Constitutional provision, I think we
had better avoid any obligation, and
make no provision in this Constitu
tion upon the subject. I move to
strike out the section.
Mr. McCANN. Mr. Chairman. In
section 5 third paragraph, it is pro
vided that in five years —
Mr. WAKELEY. Mr. Chairman. I
would say to the gentleman that I
was referring to the act of Congress
of 1862, a subsequent Act was passed
in 1866.
Mr. McCANN. The Act of 1866
provides distinctly, that within five
years of the admission of the State

304

MINORITY REPRESENTATION

Thursday]

ESTA BROOK— W AKELEY

[July 13

to the Union, she shall provide for
the building of an Agricultural Col
lege. Mr. ESTABROOK. Mr. Chairman,
I move the Committee do now rise,
report progress, and ask leave to sit
again. Motion agreed to.
Mr. STEWART. Mr. President. The
Committee of the Whole report that
they have had under consideration
the report of the Committee on Ed
ucation, School Funds and Lands, and
beg leave to report progress, and ask
leave to sit again.
Adjournment.
Mr. LEY. Mr. President, I now
move we adjourn until 9 o'clock to
morrow morning.
Motion agreed to.
So the Convention (at five o'clock
and forty-eight minutes) adjourned.

EIGHTEENTH DAY.
Thursday, July 13th, 1871
The Convention met at 10 o'clock
a. m. and was called to order by the
President. PRAYER.
Prayer was offered by the Chaplain
to the Convention, Rev. L. B. Fifield,'
as follows:
O Thou who art ever gracious ac
cept our morning thanks, although
we know that we are unworthy yet
we pray for pardon and ask for
grace to help us. O Lord let us not
wander past finding. Help us to re
member the love we owe to Almighty
God and the obedience we owe to the
holy law. Amen.
Reading of the Journal.
The Journal of the last day's pro

ceedings was read and approved.
Reports from Standing Committees.
Mr. WAKELEY. Mr. President,
the Committee on Electoral and Rep
resentative Reform report and ask
that the Clerk read the first para
graph of the report and the propo
sition accompanying the report, and
that the further reading be dispensed
with and the usual number be order
ed printed.
The Secretary read as follows:
Mr. President. The Committee on
electoral and representative reform
have considered the general subject,
together with such propositions as
have been referred to them; and a
minority of the Committee herewith
report a provision, which they recom
mend be inserted in tlie Constitution.
In submitting this proposition for
the consideration of the Convention
we deem it proper to explain briefly
our views of the principle and work
ing of the proposed change in the
method of voting for public officers
in certain cases.
The theory of a purely democratic
form of government is, that the citi
zens act strictly and individually in
the control of public affairs. The
body which legislates or decides is
composed of the voters personally
present and taking part in its pro
ceedings. All may be represented
and heard. While the majority con
trols, all may state, explain and ad
vocate their views, and support them
by their votes. The minority, thus
represented, may, if it can prevail
upon the majority to modify, or for
good reasons, to change its views and
action. Those in the minority in the
beginning, together with those it may
be able to gain from the other side,
may become the majority in the end.
In short, all citizens, whether few or
many, may voice and influence ac
cording to their number, in controll
ing the common affairs. Ours is a rep
resentative government. Its legisla-

MINORITY REPRESENTATION

305

Thursday]

WAKELEY'S REPORT

[July 13

tlve power is exercised by those
chosen for that duty by the voters;
its executive and judicial powers are
wielded, and all its civil functions are
performed by the selected agents of
the people.
In such a government is is obvious
ly right and just that the majority
and the minority of the voters should
each be able to select its due propor
tion of those who legislate for the
whole, and of the agents who perform
other public functions; or that there
should be as near an approach to this
result as is found to be practicable.
Such a system should be adopted for
selecting these representatives and
agents of the people as will come
nearest to giving both the majority
and minority of the voters their re
spective rights. It may be conceded
that a precise proportionate rep
resentation cannot be secured by any
method yet devised. But it is
equally true, that under the system
of elections hitherto prevailing in
the several states, and in the
United States, not only has there
been no just and fair represen
tation of minorities, but there they
have been to a great extent, and often
wholly excluded from legislative
bodies, and other public positions.
To illustrate what is meant by this,
let the system and result of elections
of representatives in the legislature
be examined.
The plan of dividing the State into
certain small local districts from each
of which one or more representatives
are elected, has prevailed in all the
American states. It may be assumed
that this plan will be adhered to.
Undeniably it would be just, as well
as wholesome and salutary, that the
principle already stated should be ob
served and majority and minority
be proportionately represented in the
legislature, if there be two parties
in the State, one having two-
thirds and the other one-third
of the voters, they ought to have
representatives in that proportion.
So, descending to the subdivision of
the State or district sending represen-
20

tatives, the party having two-thirds
of the voters should choose two-
thirds of the representatives, and the
minority party should choose one-
third. This would give to the ma
jority its proper influence and pre
ponderance, but no more.
Under the prevailing system such
is not the result. The majority se
cures all the representatives voted for
in the same district. If there be one
thousand voters, of which the major
ity has five hundred and one, and the
minority four hundred and ninety-
nine, and there be two, three, four,
five or whatever number of represen
tatives to be chosen, the majority
elects the whole; and if it happens
that the same party has a majority,
no matter how trivial, in each district
it elects all the representatives from
the enjtire State. It attacks the mi
nority upon the military principle, in
detail, and defeats it every where.
This is a total overthrow of the true
principle of representative govern
ment. Consider the practical working of
this system in a special instance.
The county of Douglas now elects
six representatives. Suppose in
round numbers it had three thousand
voters. If the majority party had
even two thousand of these, and the
minority say one thousand, the for
mer would be justly entitled to select
but four while the latter would
choose two of the six representatives.
Yet, the majority party, with but few
more votes than the minority, secures
the whole number.
That such results work a glaring
injustice to minorities is a proposi
tion which argument cannot make
plainer. Let us inquire whether this
is unavoidable. It may be said that
necessarily it results from the recog
nized rule that majorities, under our
form of government, must control.
If this be so, the injustice must be
borne. But we shall endeavor to
demonstrate that it may in part, at
least, be avoided without inconven
ience or confusion.

306

MINORITY REPRESENTATION

Thursday]

WAKELEY'S EERORT

[July 13

The subject has engaged the at
tention of thoiightful men, especially
within the last few years, and expe
dients have been suggested, and to
some extent tried, for correcting the
evil. Without alluding to all of
them, or to any which do not seem to
be applicable to our condition, we
mention only two. One expedient is
to permit no elector to vote for more
than a prescribed number of candi
dates. For instance, if three repre
sentatives are to be elected from the
same district, no person could vote
for more than two. Therefore, a mi
nority of more than one-third of the
voters could elect one of the three
representatives. The other method, and that which
seems to the Committee preferable,
is what is termed cumulative vot
ing. It permits each elector
to give to any one or more
candidates the whole number of
votes which, under the existing sys
tem, he is compelled to distribute
equally among all for whom he votes.
If three representatives are to be
chosen from one district, he may now
give one vote to A, one to B and one
to C; but he cannot give three to A,
nor one to A, and two to B. By an
arbitrary rule he is prevented from
exercising his electoral power in the
manner which he may prefer. If he
votes with a minority he loses entire
ly the benefit of his votes by being
compelled to attempt more than he
can accomplish. His three votes,
given one to each of the three candi
dates, are overcome by the votes of
the majority cast in the same man
ner. If he could concentrate them
upon one candidate, they would go
three times as far towards electing
him as the one vote he now gives,
while in the aggregate he would ex
ercise no more electoral power than
he now does.
An individual with a lifting capa
city of three hundred pounds will ex-
exert in [it] all to no purpose if he
attempts to raise at once three objects
altogether weighing eight hundred
pounds. But, concentrating it upon

one of them he makes it effective
and accomplishes what he under
takes. To illustrate the working of the
change now proposed, take the case
of the three officers to be elected
at the same time by the same con
stituency. Suppose the majority pa ty
to have one thousand voters, and the
minority five hundred, each elector
of the minority casts his three votes
for A, who receives fifteen hundred
votes. The electors of the majority
party can give only one thousand to
each of three candidates, and only
fifteen hundred to each of two candi
dates. In either event A will be
elected and each party will secure its
due proportion of the officers.
An easy calculation will show that
in any case of choosing three officers
by this system, a minority ranging
from one fourth to anything less than
one-half of the voters, will be able
to elect one, giving it sometimes a lit
tle more and sometimes a little less
than its exact proportion of officers,
but always approximating closely to
that result.
If the election be for more than
three the same principle of course ap
plies. In practice it will probably
be more easily understood and ap
plied in the case of three than of a
larger number.
As applicable to the election of
representatives in the legislature.
where its justice and utility would
be very manifest, it will not be nec
essary to extend it beyond three. By
the simple plan of dividing the State
into single senatorial districts, and
of electing three representatives from
each of these the minority, in nearly
all senatorial districts, would secure
one of them.
This system approved by a direct
vote of the people of Illinois, to
whom the question was separately
submitted, when they voted upon the
adoption of their new Constitution.
The Committee recommend its adop
tion by this Convention, and feel con
fident that the people of this State

MINORITY REPRESENTATION

307

Thursday]

WAKELEY'S REPORT

[July 13

will endorse and approve the action.
Even this scheme will not give the
minority its full share of the legis
lative power of the State, because the
senators elected in single districts
will still be chosen by the majority
in each. The proposed plan contem
plates that the majority, when it can,
will at its option support three can
didates, in which case the two having
the highest number would be select
ed, or will support only two, each
elector dividing his three votes equal
ly between them, giving each one and
a-half votes; or if he prefer to do so,
giving two votes to one candidate,
and one to the other.
If applied in the election of two of
ficers a minority exceeding one-third
could always elect one. This would
of course exceed its due proportion,
and the case would present the sim
ple question, which comes nearer to
right, that such a minority should be
able to secure one-half the officers,
or to secure none. The Commit
tee are not prepared to recommend
the. extension of cumulative voting at
present to the case of two officers.
In case of officers other than leg
islative, the operation of the system
would be equally salutary. School
boards, county commissioners and
similar bodies should be thus chosen.
There are forcible and special reasons
for applying it to the selection of
judges of election ; and if it be decid
ed to elect judges of the supreme
(court, the plan would be equally just
and valuable, and from the State at
large would prevent the entire exclu
sion from that high tribunal of fit
men belonging to either party be
cause only of their political faith.
We have thus set forth the reasons
for proposing this change in the
method of wielding the electoral
power of the citizens. We have not
discussed it elaborately believing
that the reason and reflection of the
members of this body will apprehend
and approve it.
We believe the system to be de
manded by the principles and theory
of our representative government.

It does not invade nor impair the
fundamental and traditional rule up
on which our institutions are found
ed, that the will of the majority fair
ly expressed must control. It gives
to the majority all its rights. It
yields to the majority its due and just
preponderance. But it denies that a
mere majority in the State, or in a
district; has a right to elect all the
representatives and thus wield the
whole political power, or select all
the executive, judicial and civil offi
cers of the State or district; it as
serts the right of minority to be
heard and be represented in the leg
islative body,by a proportional num
ber of those by whom its powers are
exercised, and select its just propor
tion of those by whom other official
trusts are discharged.
It is not a wholly new or unheard
of suggestion. For many years lead
ing and able men in other nations
and in this country — so fertile in gov
ernmental reform — have defended
and urged the principle. In our sis
ter state of Illinois it was adopted,
not by theorists or by politicians, but
by the people. It is no political de
vice or partisan scheme. The prin
ciple is general and permanent in its
operation. The majority of this day
may be the minority of the next, and
need the protection of this just and
equal rule. We are laying the found
ation of a government not for our
selves only, but for coming times and
for the whole people of present and
the future.
E. WAKELEY,
ISAAC S. HASCALL,
B. J. NEWSOM,
Proposition.
At any election when three or
more persons are to be elected to the
same office by the same Constitu
ency, each qualified voter may cast
as many votes for any candidate as
there are persons to be elected to
such office, or may distribute the
same, or equal parts thereof, as he
may see fit, among the candidates

308

POOR HOUSES— PROHIBITION

Thursday]

HASCALL-STEW ART— LYON

[July 13

not exceeding the number to be
elected. The candidates highest in
votes shall be declared elected; or if
an equal vote for two or more having
the requisite number, shall require
it the choice between them, shall be
made by lot.
The PRESIDENT. In order to
save time we will consider this the
first reading of the bill, and it will
be read a second time by its title
and ordered printed unless some
gentleman objects. (No objection.)
Presentation of Resolutions.
Mr. HASCALL. Mr. President, I
have a resolution I wish to introduce.
The Secretary read the resolution
as follows:
RESOLVED: That each organized
county in this State ought to estab
lish and maintain a poor house for
the relief and support of the poor
and destitute persons of the county,
and that a section should be inserted
in the Constitution requiring the or
ganized counties to establish poor
houses for the purpose aforesaid.
Mr. HASCALL. Mr. President, I
move the adoption of the resolution.
Mr. STEWART. Mr. President, It
strikes me that that should be re
ferred to some standing committee.
The Committee on Penitentiaries and
Reformatory institutions I would sug
gest. Mr. HASCALL. The resolution
calls for an expression of opinion
from the Convention, it might be
adopted and then referred.
Mr. SPEICE. I move that it be
referred to the Committee on Re
formatory institutions.
Mr. HASCALL. Mr. President, I
do not think that is should be refer
red to that Committee, it might do if
we were providing for criminals, but

our poor people are not always crim
inals. Under the rule I think I
have a right to move its reference
to the Committee on Counties, that
being the most appropriate one.
Mr. KIRKPATRICK. I think we
should allow the resolution to go to
the Committee the gentleman desires
it to go to.
Mr. HASCALL. I wish to say
there is no bunkum about this reso
lution. It is a lamentable fact that
several counties in this State have
failed to do their duty. Some county
authorities have even been so near
as to ship the poor out of their coun
ties, have kicked them over the coun
ty line. I do not know how it is with
the gentleman from Platte (Mr.
Speice.) If they all maintain the same
sentiments as he does, I judge his
county would banish the poor from
its borders.
The PRESIDENT. The question is
on referring to the Committee on
Penitentiary and Reformatory Insti
tutions. The Convention divided and the
motion was not agreed to.
The PRESIDENT. The question
now is on referring to the Committee
on Counties.
The motion was agreed to.
Mr. LYON. I have a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That no spirituous,
vinous or fermented liquors shall be
sold in the State except for medicin
al and mechanical purposes.
Mr. LYON. I move its reference
to the special Committee of which Mr.
Philpott is Chairman.
Mr. HASCALL. I move to amend

EXECUTIVE MANSION

309

Thursday]

ESTABROOK— HASCALL

[July 13

by saying "medical, mechanical and
for the purposes of navigation."
The ayes and nays were demanded.
The Secretary called the roll and
the President announced the result —
yeas 34, nays 13 — as follows:
YEAS — 34.

Abbott,

Mason,

Ballard,

Maxwell,
Cassell,
Moore,
Curtis,
Myers,
Estabrook,
Neligh,
Gibbs,
Newsom,
Granger,
Philpott,
Gray,
Price,
Griggs,
Reynolds,
Hascall,
Robinson,
Kenaston,
Scofield,
Kilburn,
Shaft,
Kirkpatrick,
Sprague,
Lake,
Stewart,
Lyon,
Thummel,
McCann,
Thomas,
Majors,
Tisdel,
NAYS-
-13.
Boyd,
Stevenson,
Campbell,
Towle,
Hinman,
Vifquain,
Ley,
Wakeley,
Manderson,
Weaver,
Parchen,
Wilson,
Speice,
ABSENT
OR
NOT VOTING — 5
Eaton,
Woolworth,
Grenell,
Mr. President.
Parker,
Mr. ESTABROOK
. I have a reso
lution.
The Secretary read the resolution
as follows:
RESOLVED: That the Commit
tee on State Institutions and Public
Buildings be instructed to inquire
into the expediency of providing an
executive mansion at the seat of
government and the probable cost
thereof.
the
Mr. ESTABROOK. I move
adoption of the resolution.
Mr. HASCALL. I would like to
have the mover explain the merits of
this resolution. I know it is a very
important matter to the State and
one that should receive due consider
ation before we vote.
Mr. ESTABROOK. The resolution
is simply one of inquiry. In the Ex
ecutive Article we voted by a large-
majority that the Governor and other
officers should be compelled to live at
the seat of government. He is sup
posed and expected to be the embodi
ment of hospitality of the State, and
if he be compelled to live here, it
would not be unreasonable to find
him some place to reside, where he
shall receive those who come here
and it seems to me to be the proper
time now, before we consider further
the Executive Article, we may have
the amount of salary somewhat in
view. I say this in addition. There
are many houses erected in the vicin
ity of the Capitol, which I know as
a matter of law to my own satisfac
tion, stand today upon the property
of the State, are indeed, as a matter
of law, the property of the State,
standing upon ground never convey
ed from the State by any proper con
veyance, and I think I may be in
dulged in a single remark, that there
is a very pleasant edifice near, which
would be a very proper house wherein
the executive might reside. And is
there any reason why this shall not
form a subject of inquiry through the
standing committee? I would like to
know the reason why. We need not
adopt their views if it is different
from what we believe is correct. It
310

EXECUTIVE MANSION

Thursday]

WILSON— MYERS

[July 13

interests me and I know it inter
ests others.
Mr. WILSON. It would seem to
me in making this inquiry about the
cost of this mansion he speaks of,
that it is not the intention of the
gentleman who offered the resolutibn
to make this inquiry. He and others
desire to steal a certain man's prop
erty by some point of law. It seems
to me the gentleman from Douglas
(Mr. Estabrook) has been aiming at
this from the commencement of the
Convention; and I will raise my voice
against this so long as I have a
breath. Mr. MYERS. Mr.. Chairman, I
have a strong inclination to support
this resolution. My inclinations run
that way; and I am anxious that
measures of this kind should always
be favorably considered where the
property and interests of the State
are concerned, and where they are
are so vitally concerned as they are
in this. If the State has any legal
hold upon property that has been
wrongly taken, let us seize it and
return it into the coffers or possession
of the State, where it properly be
longs. If there are any legal points
in it, those legal points, I want the
gentleman from Johnson (Mr. Wil
son) to understand are against the
thieves and plunderers, and the band
of robbers who have concentrated
their forces within the limits of this
town while their masters were ab
sent. While those who had the pow
er were at their homes these robbers
were in this town, plundering the
people of this commonwealth with
out limit or stint. And if we can re
cover this property let us, as a mat

ter of justice to the taxpayers do it,
and do it effectually; and make an ex
ample of these gentlemen who have
practiced these great wrongs against
the State. Now, I have some doubts
about the expediency of erecting any
new buildings on behalf of this State.
"History is philosophy teaching by
example;" and the people of the State
ought to bear this in mind, as they
look upon the past. Every building
we have had occasion to erect here
on behalf of the State, is either a
rotten pile of boards or crumbling
stones, everyone of which has cost
the people several dollars. And they
have crumbled to ashes, or the torch
of the incendiary has been applied,
and the State robbed in that way. I
am afraid to embark in this scheme
of building at this day. I would
rather leave it to a future generation.
The Governor is the people's servant,
and is entitled to our esteem and
gratitude; but I am afraid of build
ing residences now, when we are sur
rounded by these extraordinary em
barrassments; when there are hun
dreds and hundreds of persons around
us, lean and hungry, who have plung
ed their hands deep into the school
funds, and put them in their pockets
without limit, I will stand up for the
people of this State. And not anoth
er dollar will I vote to squander upon
these irresponsible individuals; and
I want that to go forth as the dic
tum of the honest tax payers of this
§tate. If those monies and proper
ties and lands had been honestly ap
propriated to the purposes for which
the Legislature of the past had given
them, I, sir, would have been the last
individual to open my mouth upon

EXECUTIVE MANSION

311

Thursday]

MYERS -WILSON— ROBINSON

[July 13

the subject; would have been the
last to enter a solemn and last pro
test against the plunderers. For the
purposes of recovering this property,
if we can, and we have the legal right
to do it and I want the constituents
of the gentleman from Johnson (Mr.
Wilson) to understand this — if we
can recover this property, I will sup
port it. Because our first duty and ob
ligation is due to the State. The
State is our own creation: she is en
titled to our endeavors to protect
her; and help her regain possession
of every inch of this ground which
has been illegally wrested from her.
I shall vote for this resolution; and 1
hope we shall have a solid stone,
which shall be immovable, inserted
in this Constitution; and which shall
close the door forever against these
plunderers. The people have put us
here as custodians of their treasury,
and we are, as honest men, bound to
preserve their interests; and there
can be no better way that the putting
guards around your treasury. And
no individual, in the absence of
your law makers, can then seize this
property. Sir, that is the time peo
ple come, by bayonets and revolution.
For these reasons I hope the resolu
tion will be adopted.
Mr . WILSON. Mr. President, I
would like to ask, for my own in
formation, of the gentleman from
Douglas (Mr. Myers) whether this
is an investigating Committee, or a
Constitutional Convention? Whether
we are here to investigate the acts
of the last official officers of this
State, or to frame a Constitution.
Mr. MYERS. I will with pleasure,
answer the honorable gentleman. I

believe this is not an investigating
body, but all that we need upon the
subject is pasted high upon the walls.
It needs no investigating. All that
remains now is to close the doer
with the light that we have. And
God knows it is. horrible enough!
Mr. ROBINSON. I do not know
since I have heard the resolution
read, that I am opposed to it. But it
strikes me this discussion has taken
rather a singular turn. A day or
two ago, when a certain resolution
came up here providing for the ad
mission of a certain gentleman to
privileges of this floor, I voted for its
indefinite postponement. I thought it
inexpedient at that time to introduce
into the discussions of this body the
questions which were likely to arise
out of that resolution. Mr. President
if there is anything that I despise it
is the history of the past year in this
State. "Tis my perfect scorn."
"Object of my unplacable disgust."
But in my view there are some other
things still more despicable. That
disgraceful fight is a dirty carcass. It
stinks everywhere; enters into the
discussion of every little public meet
ing and befouls them all. I am sick
and tired of it. But sir, the one thing
more disgusting than this foul car
rion is the dirty dog that drags it in
to public notice to offend the nostrils
of decent people. I hope the gen
tlemen who brought up this resolu
tion will not put themselves out of
order in the discussion of it. I do
not wish to take part in such a dis
cussion; but I can tell the gentlemen
I do not fear to do so if it becomes
necessary. This resolution is not
necessary, and I hope gentlemen:

312

EXECUTIVE* MANSION

Thursday]

ESTABROOK— MASON

[July 13

will not force it upon the discussions
of this body.
Mr. ESTABROOK. I did not ful
ly understand, as I was talking with
the colleague of the gentleman at
the time, what he means about for
cing. I imagine there is no question
at all but that there are public funds
invested in buildings in the vicinity
here. But there have been public
moneys invested in buildings here
and lands, wherein little has been
effected by, at least, informalities.
Now, if by a proper and reasonable
negotiation with the parties holding
such properties the whole thing can
be effected without process of law,
what harm is there ? Why these gen
tlemen are sensitive. It is an old
adage "When the Devil howls you
know something is striking him."
By an informality of the law the
State has been stolen from. Who is
the thief? We propose, by a quiet,
unostentatious resolution to inquire
whether we may not secure our ex
ecutive mansion and get back what
belongs to the State. Who is drag
ging anything into discussion, except
what is legitimate — genuine; to the
topic? I am talking of a school fund,
which has, in some degree, been ex
pended. Is that germane or not?
And it cover a portion of that which
the State has had filched from it. If
anybody wants to engage in drag
ging the thing I suppose it can be dis
cussed. I do not propose to do it
though, any more than that the State
has its funds scattered in every di
rection; and it may be necessary to
gather these scattered funds in
again in such a way as will benefit
the parties concerned. If it is an of

fense I do not know. I do not say
how it should effect the feelings, or
induce the gentleman from Johnson
(Mr. Wilson) to refer to me offen
sively. It seems to me as though
something was stinging or sticking
him. Mr. MASON. Mr. President,
when the vote was taken upon this
resolution before, I did not vote, for
the reason that I was not i-n my seat,
but I thought that the resolution
was clearly lost; if the gentleman
from Deuglas states that the object
of the resolution is to secure the
State any property to which it has a
right, I am for the resolution. If
the object is simply to enter upon
another scheme of erecting public
buildings, I am opposed to the reso
lution. I do not believe, sir, it ad
vances the objects and purposes of
the government to engage in the
erection of mansions, or the erection
of other buildings except such as are
necessary for the transaction of its
business; but if the State, either
honestly or dishonestly has become
interested ih private mansions, and
it is necessary to take this step in
order to secure that interest, then I
think the resolution is right,
now if the gentleman from Douglas
(Mr. Estabrook) had said that the
State might repossess its property,
which it is in danger of losing, then
I certainly would be in favor of it,
but if its object and purpose is, in
the language of my friend sitting be
hind me, "to raise again the old war"
and drag what has been settled by
the highest judicial tribunal in this
State before this Convention, Mr.
President, I have much to say against

EXECUTIVE MANSION

313

Thursday]

M A S ON-ES T ABROOK

[July 13

it. I don't believe it is germane for
this Convention to review the judg
ment of the highest court ,in the
land, this is settled; it is decided, and
let it end, I see that broad insinua
tions of theft and robbery of the
school are thrown out by the gentle
man from Douglas. Why, sir, if 1
believed the facts stated by that gen
tleman to be true, I would be man
enough to go before a justice of the
Peace, make the proper affidavit and
drag the felon to the bar of justice
instead of accusing him before this
Convention, where he cannot be
heard in his own defense. If these
assertions are true let the felon be
punished. Show me that any man hath
plundered me, or taken the property
of this State- — convince me of it and
before I stand in this Convention
and assert it, I will make the affi
davit before a magistrate which will
bring that man to justice. If the
gentleman from Douglas (Mr. Esta
brook) had said to me "I believe
there is property here which the
State is entitled to, and which the
State can recover by means of this
resolution," I should have favored its
introduction, but this assault upon
our late State officers is like the as
sault the gopher makes upon my
hedge now — it is working under
ground. I never yet threatened a
man through his constituency; and
when a man threatens me in this way,
he either reflects upon my integrity
or doubts the intelligence of that con
stituency. Now, Mr. Chairman; If
there is any chance for the State to
take ' possession of this residence
spoken of I have no objection to its
being done, but if the object of this

resolution be to enter upon another
scheme to erect public buildings, then
I ask the Convention to pause and
consider. The gentleman from Doug
las (Mr. Estabrook) says that phil
osophy was but the experience of
mankind aggregated in history, all ex
perience shows that it costs a govern
ment $1,000 for every hundred dol
lars realized in the value of build
ings, this much over what it would
cost a private individual. An indi
vidual will build for one tenth what
it would cost the State. Let me in
quire if it is the object of the res
olution to put up public buildings.
Mr. ESTABROOK. Mr. Chairman,
I will state to the gentleman that the
resolution means just exactly what it
purports to mean. It never became
a subject of very close thought, the
matter came up in the discussion of
the subject at the suggestion of Mr.
Cassell. I will say that I think it is
not of enough note to cause this
"tempest in a tea pot."
Mr. MASON. Mr. Chairman, I
don't think that answers the inquiry
at all. I wish to ask whether it is to
inquire into the propriety of taking
possession of certain property, or to
build other houses.
Mr. ESTABROOK. Mr. Chairman,
I would say that I think it appears
to cover the whole ground.
Mr. MYERS. Mr. Chairman, I too
am in the dark. I am, as I hereto
fore remarked, opposed to engaging
in the erection of any new buildings
at present. I advocated this resolu
tion, it is true. I am not afraid to
show my hand, I am never disposed
to shirk a responsibility. I want the
gentleman from Otoe (Mr. Mason)

314

EXECUTIVE MANSION

Thursday]

MYERS- CASSELL— WAKELEY

[July 13

-to unaerstand that. 1 want to know
whether this resolution was not got
ten up for the purposes of restoring
to the State the property of the State
— mansions in which the State ma
terial entered and built, in which the
State money is invested. If this
property cannot be recovered, then I
am in favor of inserting a clause in
the Constitution which will prevent
a repetition of these stealings in the
future. Philosophy is history teach
ing by example and God knows we
have had example enough of that
kind. I simply want to vote for this
resolution in the hope of recover
ing property lost.
Mr. CASSELL. Mr. Chairman, I
will state in explanation of this reso
lution that there are two or three,
objects in view. The first is to se
cure a residence for the State of Ne
braska, the second is, to be plain
about it, to s,ee if a debt cannot be
recovered which some claim the State
has no proper security for, and if
we can get this property in part pay
ment of the debt it is thought better
to secure it. Perhaps the thing can
be done, and we will have a good res
idence for our Governor.
Mr. WAKELEY. Mr. President,
so far as I am concerned it is entirely
immaterial what might have been the
purpose in offering this resolution. I
think it is simply what it expresses,
an instruction to a committee to in
quire into the expediency of erecting
a residence for the Chief Executive,
and report the probable cost of the
same. I shall support the resolution
cordially because it clearly indicates
that the Governor shall reside at the
Capital, and if it is necessary I am

in favor of the Legislature providing
a suitable residence for him here.
For if, as hinted at by my colleague,
if we require the Executive to re
side here it supposes that he shall
extend the usual hospitalities to
those who visit him, he ought to
have a suitable residence here. It is
simply a resolution of inquiry and of
course this report will bind no body.
The Convention will be entirely free,
when it is submitted, to express its
opinion on the whole subject, as it
has been suggested in accomplishing
this the State may recover any funds
that it has lost, it will be well.
The PRESIDENT. The question
is on the adoption of the resolution
offered by the gentleman from Doug
las (Mr. Estabrook). The "ayes and
nays" have been demanded.
The vote was taken and the result
was announced. Ayes, 39. Nays, 4 —
as follows. AYES — 39.

Abbott,Ballard,
Boyd,Cassell, Curtis,
Estabrook, Gibbs,Granger, Griggs,Hascall,Kilburn.
Lake, Ley,
Lyon, McCann,
Majors,Mason,Manderson,Maxwell,
Moore,
Campbell, Hinman,

Myers,
Neligh,
Newsom,
Parchen,
Philpott, Price,
Reynolds,Robinson, Shaft,Sprague,Speice, Stevenson,Stewart,
i Thummel,Thomas, Tisdel,
Vifquain, Wakeley, Weaver,
NAYS — 4.
Kenaston, Wilson,

LOCATION OF AGRICULTURAL COLLEGE

315

Thursday]

MYERS — McC A NN— PHILPOTT

Uuly 13

ABSENT OR NOT VOTING — 6.
Eaton, Mr. President,
Grenell, Scofield,
Kirkpatrick, Woolworth,
So the resolution was agreed to.
Committee of the Whole.
Mr. MYERS. Mr. President, I
move that we go into the Committee
of the Whole on the report of the
- Committee on Education, School
Funds and Lands.
The motion was agreed to.
So the Convention in the Commit
tee of the Whole, Mr. Stewart in the
Chair, proceeded to consider the re
port of the Committee on Education,
School Funds and Lands.
The Secretary read section nine as
follows: Sec. 9. The location of the Univer
sity and Agricultural College at the
Capital of the State, as already es
tablished by existing laws, is hereby
sanctioned and confirmed, and said
institution is hereby declared to be
the University and Agricultural Col
lege of this State; provided, that
other Agricultural Colleges and ex
perimental farms may be established
by the Legislature when the wants
of the people may so require.
The CHAIRMAN. Gentlemen of
the Committee, the question is on the
amendment offered by the gentleman
from Otoe, (Mr. McCann.)
Mr. McCANN. Mr. Chairman, I
understand on examining the Acts of
Congress of 1862 and a subsequent
one of 1866, that it is the opinion
of legal gentlemen in the convention
that we still have until 1874 to build
an Agricultural College in compli
ance with that Act, and I understand
that it is the opinion of the gentle
men, it will be better to strike out
this section altogether. If such a

motion is made I have no objection.
I do not believe it wise nor necessary,
I do not believe it best, but if it be
the opinion of the Convention I have
no objection. It may just as well be
done to day. The building is already
built, not only for a University but
for an Agricultural College. We all
know the people of this State will not
sustain this Convention or a future
Legislature in erecting a large Agri
cultural College in which to place
five, ten or fifteen boys. We all
know it is economy. In our private
affairs we would so decide. Other
Agricultural Colleges might be locat
ed elsewhere throughout the State,
until that time arrives we all under
stand that this building is to be used
as an Agricultural College, and that
it is best to denominate it the Univer
sity and Agricultural College. Sec
ondly, I can see no wisdom in defer
ring this matter. I know the opinion
of the Secretary of the Interior. He
asked me if we had built an Agricul
tural College, I answered him that
we had. I told him we were going to
use it as a University and Agricul
tural College, but I think it would be
well to recognize it as such, with this
proviso, that whenever circumstances
will allow, Agricultural Colleges be
located elsewhere throughout the
State. Mr. PHILPOTT. I have an amend
ment before the Committee and wish
to ask if it was recognized.
The CHAIRMAN. I did not recog
nize the amendment. The amend
ment before the Committee is Mr.
McCann's , striking out the first three
words and also striking out the words
"as already established by existing

316

LOCATION OF AGRICULTURAL COLLEGE

Thursday]

PHILPOTT

[July 13

laws, is hereby sanctioned and con
firmed and said institution."
Mr. PHILPOTT. I am in favor of
that amendment. I have no doubt
the adoption of the amendment
would recognize the selection of this
building at this place. In a remark I
made yesterday on this subject, I be
lieved it was true that we had yet
four years to erect a building. I
wish to say this that I was then look
ing after what I believed to be the
interest of the State at large. I wish
the matter considered whether we
have a building or not, if not one
might be erected. I gave it as my,
opinion that we had complied with
the spirit of the law of Congress, un
der which we are entitled to 90,000
acres of land, that by the location of
the University making one of its de
partments an Agricultural College
we have complied with the spirit of
the law and that we have not only
the University located but the Agri
cultural College. If I was wrong in
that and it was not true, I desire the
matter located that there may be no
doubt about it. While I represented
the constituency of Lancaster county
and the people of Lincoln, I regard
Lincoln as one thing and the Cap
ital of the State as another. I be
lieve Lincoln is owned in part by the
State and citizens who have property
here, and that the Capital is owned
by the -whole people. I may have
some pride in looking after the inter
ests of this county. I have likewise
just pride in the interest of the
State. Lincoln in every sense of the
word is the Capital, but I remember
Lincoln is a town governed by civil
ordinances, and the people of the

State have been pleased to call Lin
coln the Capital. It is just and pro-
er to the people of this State, that
the Agricultural College and the
State University located at this place
should be recognized. Why not rec
ognize it by virtue of the Constitution
at this time. We have a large Agri
cultural district, a University, means
of communication by way of rail
roads, and I think this is a most
favorable place for the location of
one Agricultural College. I urge the
recognition of the location at this .
time in this city for this reason. It
has been intimated that we will not
be in a condition for three or four
years to put up a large expensive
Agricultural building. If it should
be regarded necessary to erect one
hereafter, it certainly would cost a
considerable amount of money, and if
it is true, and I have no doubt that
it is, that we have complied with the
spirit of the law. Why not recog
nize the building already erected and
thereby show that the whole people
of the State believe that we have com
plied with the spirit of the law; they
then will say the people believe they
have complied with the spirit of the
law, and that they have erected a
building for that purpose. I urge on
this Convention at this time the rec
ognition of the Agricultural College,
here, that the people when voting on
this Constitution may affirm that rec
ognition, and that is one strong rea
son why I hold it should not be
stricken out. The gentleman from
Dodge (Mr. Gray) seems to have been
laboring under the impression that
we recognized that whole law under
which the State University has been

LOCATION OF AGRICULTURAL COLLEGE

317

Thursday]

BALLARD-MYERS— WAKELEY

[July 13

erected, located and constructed and
all the provisions for its management.
He seems to have some objection to
that law, perhaps many others have.
I do not wish to do anything at this
time for the recognition further than
the location of this building. Per
haps we are not satisfied with the
wisdom of the Legislature that en
acted that law. I cannot see why
he objects to the amendment. I
think it proper we should have that
building here, one of them, and oth
ers elsewhere where they may be
needed. Mr. BALLARD. I move to strike
©ut section nine, for the reason that
we should not encumber this Consti
tution with needless provisions.
Mr. ESTABROOK. I rise to a
point of order. I think it is a prin
ciple of parliamentary law that we
first consider the amendment and
then consider the motion to strike
out. Mr. BALLARD. I make it as an
amendment to the amendment.
Mr. WAKELEY. It seems to me
rule 26 settles that question.
Mr. MYERS. Mr. Chairman, I
hope I will now be permitted to vote
on this amendment and this section;
and that no gentleman will be al
lowed to motion to strike out until
the ayes and nays have been taken.
I hope the gentlemen now, having
thoroughly understood and debated
this question, will permit this Com
mittee to vote.
Mr. THOMAS. I desire to say that
a motion to strike out does not take
precedence of a motion to jimend.

The CHAIRMAN. That idea will
conflict with rule 26.
Mr. WAKELEY. The ruling of the
Chair, in my judgment, is correct in
regard to the motion having prece
dence. Because it seems to me it is
fair for gentlemen to let it be per
fected as far as may be, and when
perfected, it may not be objection
able to those now in favor of striking
out the whole subject. Therefore, I
shall vote against striking out now,
but allow it to be perfected first.
Mr. BALLARD. I have no objec
tion to withdrawing it, yet I want
this section stricken out.
The CHAIRMAN. Gentlemen, the
question is on the amendment of the
gentleman from Otoe (Mr. McCann).
The amendment was agreed to.
Mr. MYERS. I move the section be
now adopted as amended.
Mr. TOWLE. Mr. Chairman, I
move to strike out the section as
amended. Mr. MASON. Mr. Chairman, I
want to make an inquiry of the
chairman of this Committee. I de
sire to enquire what the object of
this section is. Does it refer to this
building down here?
Mr. ESTABROOK. I will state if
the gentleman from Otoe (Mr. Ma
son) is not familiar with the Act of
Congress donating the land to the
State that under its provision it be
came necessary in order to authorize
us to demapd and receive 90,000
acres of land for Agricultural College
purposes, within a certain length of
time we should erect a college build
ing; that provision was made in 1867
to erect a university and agricultural

318

LOCATION OF STATE UNIVERSITY

Thursday]

ESTABROOK— McCANN-THOMAS

[July 13

college, and in 186 9 some other pro
visions were made recognizing the
double capacity of the building, and
the object of this was to recognize
the action that had gone before,
which established the college here,
clearly and decidedly; so that it
might be shown that we had regard
ed it as an agricultural college, and
brought ourselves within the provis
ions of the act and complied with the
provisions upon which the grant was
made. That was the idea intended
to be shown by the section.
Mr. MASON. In other words, it is
to say to avoid doubt.
Mr. ESTABROOK. Yes.
Mr. McCANN. Mr. Chairman, I
rise to a question of privilege. My
colleague, (Mr. Mason) has asked for
information from the chairman of the
Committee reporting this article. Be
lieving that the chairman has failed
to respond in all the particulars, I
wish to call the attention of my col
league to one further objection urg
ed against this article yesterday.
Leave granted.
Mr. McCANN. I understand that
the objection to this Article yester
day was this: that in adopting the
Article we thereby confirm the Act
of the Legislature of 1869, locating
or establishing a university and ag
ricultural college. Serious objections
were urged against that Act in it
self. I, in framing this amendment,
think we have obviated that, and
that now, in adopting this Article as
amended by the Committee, and as
now before the Committee, we de
clare it an Agricultural College as
well as a University. Thereby we
fulfill all the requirements of the Act

of .Congress and come into the pos
session of the 90,000 acres of land.
Mr. THOMAS. I would like to
ask Mr. McCann if the statute estab
lishing this university and agricultur
al college does not establish it as an
Agricultural College; and if it does
is it necessary that there be a Con
stitutional provision also declaring it
an Agricultural College? If it is nec
essary to put this into the Constitu
tion for the purpose of saving any
land, I am in favor of keeping it
there but if not, I am not desirous.
Mr. McCANN. I would state, for
the information of the gentleman
from Nemaha — and I am obliged to
him for making that point — that
your act reads "An Act for the pur
pose of establishing the University
of Nebraska." If this is not the act
we have been fighting since 12 o'clock
yesterday, I stand corrected. I hold -
if it is not you have been fighting a
myth. I hold that the act establish
ing this is the act to establish the
University of Nebraska; and I hold
that before you receive the patent for
the 90,000 acres you have to declare
some building a University and Ag
ricultural College.
Mr. THOMAS. I believe the act
alluded to by Mr. Philpott referred
to a different one.
Mr. McCANN. I wish further to
State, so far as the other act is con
cerned, the matter referred to the
act of 1869 —
Mr. PHILPOTT. One act I refer
red to yesterday —
The CHAIRMAN. The gentleman
from Lancaster (Mr. Philpott) is out
of order. If leave is granted he may
speak.

LOCATION OF AGRICULTURAL COLLEGE

3iy

Thursday]

MA SON —PHILPOTT— B A LLARD

[July 13

Mr. MASON. Mr. Chairman, I
think it important that we act intel
ligently upon this matter. I hope the
gentleman from Lancaster will have
permission. I desire to have suffi
cient time to examine the law.
Leave was granted Mr. Philpott.
Mr. PHILPOTT. I was about to say
that one act I referred to yesterday
was the ohe Mr. McCann has been
referring to, and can be found in the
Laws of Nebraska, for 1869, page
312. Now, in reference to the act on
page 17 5, it provides for six depart
ments, separate departments, in the
University —
— • — — We have nothing to do
with the departments.
Mr. PHILPOTT — One moment.
The first is a college of ancient and
modern literature, mathematics and
the natural sciences; and the second,
is a college of agriculture. Now,
what we are required to do by the
Act of Congress of 1866, was first —
that, within three years after the
State was admitted into the Union,
she accept the grant of 90,000 acres
of land; and within five years after
such acceptance — erect an agricultu
ral college. Now, we have no Agri
cultural College; nor will we have
the money to expend in the next four
or five years. Unless it is true that
in this University we have an agricul
tural college, in the second depart
ment — that is what the law says —
"the University shall consist of six
departments" — and each one is a col
lege, and the second is an agricultur
al college — if that is true, we have
complied with the law, and need not
build within the next four years.
And, again, we have not the money

to lay out in the other building. It
would be eminently wise and just
for the Convention to recognize that
department as one of the agricultural
colleges of this State. Then there
is no doubt about the question. And
that is the point I urge here. If you
cast it off entirely, then you will have
said to Congress, "We have not com
plied with the law." If we don't adopt
something of this kind, when we
make application for our land grant,
Congress will say "put up your build
ing and comply with the provision
of the act." I say it will be cheapest
to recognize this building as one of
our agricultural colleges.
Mr. BALLARD. Mr. Chairman, this
ground seems to have been pretty
thoroughly discussed, and I think
this discussion is out of order.
The CHAIRMAN. Gantlemen, the
question is upon the motion to strike
out section 9 as amended.
Mr. MASON. Mr. Chairman, I
would like to say a word farther. I
was under the impression that if the
section passed it would recognize the
action of the Legislature with re
spect to the location of this univer
sity and agricultural building as con
stitutionally done, and irrevocably
fixed, and to that, I was opposed.
Upon a more thorough examination
of this section, I find the section
does recognize only the location of
this as one of our agricultural col
leges, fixes that by the Constitution
and does nothing more. Then it is
well to see what has been done under
the act of the Legislature referred to
by my colleague, the gentleman from
Lancaster (Mr. Philpott) I read from
page 254 of 1869 — section 2: "And

320

STATE AGRICULTURAL COLLEGE

Thursday]

MASON— ESTABROOK

[July 13

that the residue of the moneys aris
ing from the sale of lots as aforesaid
not exceeding the sum of one hund
red thousand dollars, be and the same
is hereby appropriated, to be expended
under the direction of said Commis
sioners in the construction and erec
tion of a suitable building for a State
university and agricultural college,
upon the grounds on or near the
town site of Lincoln heretofore se
lected, or to be selected by said com
missioners and laid off for that pur
pose, PROVIDED, that if a sufficient
amount is not realized from the sale
of lots as aforesaid, from which to ap
propriate as aforesaid $100,000 to
build the State University and Agri
cultural College. The said commis
sioners may sell in the same manner,
to the highest and best bidder, a
sufficient amount of saline lands,
not exceeding 40 sections at a price
not less than $5 per acre to make up
the deficiency, Provided Further that
said lands shall not be selected for
such purposes from any section or
part of a section on which any salt
spring may be located, or a section
adjoining the section on which said
salt spring may be located."
We have a recognition of the agri
cultural college and university vand
if it be the sense of the Convention to
simply recognize the location and
erection of an agricultural college
at Lincoln, then we ought to adopt
the section, as reported by the Com
mittee. For my own part, I believe
I am in favor of recognizing as the
agricultural college of this city, this
building over here in this oat field;
but I want to see our agricultural
college surrounded by broad acres

upon which to experiment. Now it
is true this section provides for the
erection of other agricultural col
leges, but when we build an agricul
tural college I don't believe in plant
ing it in anybody's town. I want it
where they can plant trees and have
broad acres for practical experiments,
in order that the poor men of our
State may gain thereby, and save the
large sums which many of us, in the
early settlement of our State, have
lost heretofore in experimenting. For
the purpose of securing our lands, I
am in favor of letting this section
stand and call this an agricultural
college, but I am not in favor of call
ing it, by Constitutional provision,
the agricultural college of this State.
Mr. ESTABROOK. Mr. Chairman,
I will call the attention of the gentle
man to the fact that the law provides
for the using of 10 per cent of this
fund for experimental farms.
Mr. MASON. Mr. Chairman, I
want lands around our agricultural
colleges, as well as these experimen
tal farms. I wish my boy to go from
the field with sweat still on his brow,
to his books. I would take him from
practical farming — from the planting
of trees, from the planting of crops —
to the school room; from the toil of
the muscle, to the toil of the brain,
and for that reason I would have my
building upon a farm. Therefore, i
am for the planting of our agricul
tural college — not in Lincoln, not in
Nebraska City, not in Omaha, not
anywhere except in the country
which God has made, and the farmer
is to inhabit. These being my views,
I believe I am in favor, Mr. Chair
man of striking out the whole sec-

DEAF, DUMB AND BLIND

321

Thursday]

McCANN— MASON— WILSON

[July 13

tion. The Convention divided and the
motion to strike out section nine was
agreed to.
Mr. McCANN. I desired a division,
in order that we might know who
it is that votes to strike out this sec
tion, for I am satisfied the time will
come when those voting in the affirm
ative, will regret their action.
Mr. MASON. Mr. Chairman, I de
sire to say to the gentleman that if
there is any doubt about our receiv
ing the land, I may regret it, other
wise I should be sorry to see our ag
ricultural college in any body's town.
The CHAIRMAN. The Secretary
will read section 10.
The Secretary read as follows:
Sec. 10. Schools for the benefit of
the deaf, dumb or blind shall be fos
tered and supported.
Mr. KIRKPATRICK. Mr Chair
man, I desire to amend the section
by striking out the word "or," and
substituting the word "the."
Mr. ESTABBROOK. I would ask
the gentleman if the section does not
include all of that class of persons,
just as well as if the word "the" were
used. Mr. KIRKPATRICK. Mr. Chair
man, It strikes me that that amend
ment is required to make it obliga
tory upon the authorities to provide
for this unfortunate class, and I think
the phraseology is better.
Mr. ESTABROOK. Mr. Chairman,
I don't think the gentleman has argu
ed that point quite so often as I have
in my practice in criminal courts.
Mr. MASON. Mr. Chairman, I
would simply inquire if the deaf are
not always dumb?
Mr. ESTABROOK. No sir.
21

Mr. MASON. Would it not be bet
ter to say "Deaf and Dumb or Blind"?
Mr. MYERS. Mr. Chairman, If we
are to go into a general conversation
al society I think we had better do
it at once.
The CHAIRMAN. Gentleman
will please address the Chair.
Mr. ESTABROOK. I will submit
to the Honorable Chief Justice,
whether this does not include the
Whole. Mr. ROBINSON. Mr. Chairman, if
it is in order. I move to strike out
the words, "deaf, dumb or blind,"
and insert "deaf and dumb and
the blind."
The CHAIRMAN. The question is
on the amendment of the gentleman
from Lancaster (Mr. Robinson).
The Committee divided and the
amendment was agreed to.
Mr. WILSON. Mr. Chairman, I
move the section be adopted as
amended. The 10th section was adopted.
The Secretary read section eleven
as follows:
Sec. 11. The superintendent of
public instruction, secretary of State,
treasurer and attorney general shall
constitute a board of commission
ers for the sale, leasing and general
management of all lands and funds
set apart for educational purposes,
and for the investment of school
funds, in such manner as may be pro
vided by law. The superintendent of
public instruction shall be the presid
ing officer of the board. Any three
members shall constitute a quorum.
Such board shall also have the gener
al management and control of the
affairs of the State normal schools,
and the State university and agricul
tural college, and shall take the
place and do the duties of regents
of said institutions. Such board

322

STATE EDUCATIONAL BOARD

Thursday]

ESTABROOK— MAJORS

[July 13

shall also have the general supervis
ion of public instruction in the State.
Mr. ESTABROOK. . Mr. Chairman,
It is proper to state perhaps, that
while the Committee adopted this in
order to make a report at an early
day, yet no one of them thought this
was the best plan. It was and is
not my own views. For the purpose
of getting my own views before the
Committee, I will offer the following:
That the section be struck out, and
that two sections be adopted in lieu
thereof as follows:
Sec. 11. The supervision of public
instruction shall be vested in a State
Superintendent and such other offi
cers as the Legislature shall provide.
The superintendent shall be chosen
by the qualified electors of the State
in such manner as the Legislature
shall direct; his powers and duties
shall be prescribed by law.
Sec. 12. Until the Legislature
shall otherwise provide the superin
tendent of public instruction, Gover
nor, secretary of State, treasurer and
attorney general shall ex-officio con
stitute a board of commissioners for
the sale, leasing and general manage
ment of all lands and funds set apart
for educational purposes, and for the
investment of school funds, in such
manner as may be provided by law
The superintendent of public in
struction shall be the presiding offi
cer of the board. Any three members
shall constitute a quorum. Such
board shall also have the general
management and control of the af
fairs of the State normal schools, and
the State university and agricultural
college,, and shall take the place and
do the duties of regents of said insti-
tions. Mr. ESTABROOK. Mr. Chairman,
My idea is that two interests are in
volved in this, and hence I can see
that there is a necessity for divid

ing it, and I believe it is usual in all
of the States that the State superin
tendent of public instruction is the
head of this board. I have provided
that the State officers ex-officio shall
be such board until the Legislature
shall otherwise provide, and I think
it will save expense by employing
those who can serve in this capacity
without additional compensation.
The idea that I have and I think
of the other members of the Commit
tee, is that we shall hold the State
responsible for every dollar of the
school fund, and the State shall guar
antee the return of every cent that is
lost. Now, that is one idea I insist
upon as one of the gems of the pro
position I offer. I insist upon it as
one of the gems of the proposition.
In the next place, the trustees of the
fund have the responsibility of keep
ing this forever intact and undimin
ished. We give them the authority
of the law to indicate to themselves
the manner in which it shall be in
vested, to say how it shall be made
safe, and for the time being only they
can have the opportunity of ascer
taining whether this or some other
method would be the best. The
amendment simply provides that va
rious officers of the State shall con
stitute a board. If it is deemed best
it could be abolished, leaving the
State all the while under this respon
sibility, the privilege of saying by
what means they shall so execute
their trust. This is the idea we have.
Mr. MAJORS. I would call the
attention of the gentleman from
Douglas (Mr. Estabrook), and the
members of the Convention to the
first section of this Article as report-

STATE EDUCATIONAL BOARD

323

Thursday]

KIRKPATRICK— STRICKLAND

[July 13

ed. "The educational and school
funds and lands of this State
shall be under the control and
management of the Legislature — "
Now in calling their attention to
that, it seems to me it is conflicting
with section eleven, or the amended
sections as proposed, and I feel that
the whole matter is competent to be
left with the Legislature to provide
for this matter, and that we need
not tie ourselves by any Constitu
tional provision in this matter.
Mr. KIRKPATRICK. Preparatory
to considering the section as reported
by the Chairman of the Committee,
I move that section eleven be strick
en out.
Mr. ESTABROOK. I offer it as a
substitute. Mr. KIRKPATRICK. I do not like
it in that way, I want it divided; my
motion is to strike out the original,
not the substitute.
Mr. ESTABROOK. My motion
was to strike out the original and in
sert the substitute.
The motion was agreed to.
Mr. STRICKLAND. I find in the
report of the Committee on State In
stitutions and Public buildings, that
a board is provided for as follows:
fl 1. That a board of commission
ers, consisting of  ,to be called
commissioners of State institutions
and public buildings shall be elected
at the first general election provided
for in this Constitution, whose duty
it shall be to have the general super
vision and control of all State insti
tutions and public buildings, and the
care and sale of all lands appropri
ated for and belonging thereto.
ff 3. The board of commissioners
of State institutions and public build
ings shall perform the duties of the

normal school board of education,
and shall be regents of the State uni
versity and agricultural college. The
governor, as member ex-officio and
chairman shall complete said board
of regents.
I read these to call the attention
of the Convention to the fact that
this question might be considered
with that report.
Mr. KIRKPATRICK. I do not
think the report of this Committee is
to be considered, it is not before the
Convention. Mr. BALLARD. I very much ques
tion whether this Convention is pre
pared to act on this at this time or
not. It is something entirely new to
me. I should prefer a re-commit
ment in order that the new section
may be printed.
Mr. HASCALL. We have not
adopted a single Article, though we
have been in session some time. We
have got a short Article here report
ed by the Committee on Education,
etc. We have got to a point where
we can finish it in a short time.
In regard to the report of the Com
mittee on Public Buildings, I am un
willing to mix up the management of
our penitentiary with our school in
stitutions. I think we should pro
ceed to adopt this eleventh section we
would then get along to the remain
ing section and be able to finish it
up at this time. I hope we will dis
pose of it.
Mr. SPRAGUE. Mr. Chairman, I
have prepared here a section which
I wish to offer as a substitute for
section eleven, which has been dis
cussed. The Secretary read the substitute,

324

STATE EDUCATIONAL BOARD

Thursdaj ]

SPRAGUE— ROBINSON— KIRKPATRICK

[July 13

as follows:
The superintendent of Public In
struction and one commissioner to be
elected from each judicial district
within this State, shall constitute a
State Board of Education. The Su
perintendent of Public Instruction
shall be the presiding officer of the
Board. Such board shall have the
general management and control of
the affairs of the State normal
schools, and the State university and
agricultural college and shall take
the place and do the duties of regents
of said institutions. Such Board
shall have a general supervision of
public instruction in the State.
Mr. ROBINSON. I agree with the
gentleman from Douglas (Mr. Esta
brook) and am opposed to the amend
ment. I think it ought to be left to
subsequent Legislatures to provide a
new board. They can do it as the ex
igences of the time may require. We
may fix something they do not want.
The CHAIRMAN. The question is
on the substitute offered by the gen
tleman from Saunders (Mr. Sprague).
The substitute was not agreed to.
The CHAIRMAN. The question
now is on the amendment of the gen
tleman from Douglas (Mr. Esta
brook.) The motion was agreed to.
The CHAIRMAN. The Secretary
will read section twelve.
The Secretary read the section as
follows: Sec. 12. Until the Legislature shall
otherwise provide the superintendent
of public instruction, governor, secre
tary of State, treasurer and attorney
general shall ex-officio constitute a
board of commissioners for the sale,
leasing and general management of
all lands and funds set apart for edu
cational purposes, and for the invest
ment of school funds, in such manner
as may be provided by law. The su

perintendent of public instruction
shall be the presiding officer of the
board. Any three members shall con
stitute a quorum. Such board shall
also have the general management
and control of the affairs of the
State normal schools, and the State
University and agricultural college,
and shall take the place and do the
duties of regents of said institutions.
Mr. KIRKPATRICK. I am oppos
ed to the adoption of that section. I
think it unnecessary to put power
into new hands. I think we had bet
ter leave it as it is until the Legis
lature meets. I shall oppose the
adoption of the section.
Mr. SPRAGUE. I have also a sec
tion drawn up here which touches so
far as the question of the funds and
the sale of school lands are con
cerned. The same division which is
treated with in the provision report
ed by the gentleman from Douglas
(Mr. Estabrook) ; and I offer this as
a substitute: Sec. 12. The Legislature shall by
law provide for a State Land Office
for the sale of all school and other
State lands, and for the proper distri
bution of the proceeds of the sales of
such school lands among the dif
ferent counties of the State, there to
be loaned, under provisions of the
law, to school districts or other par
ties within said counties wishing to
loan the same.
Mr. ABBOTT. I would like to ask
the Chairman of the Committee if he
proposes to have the superintendent
of public instruction attend all the
sales of school lands throughout
the State, and personally superintend
them. Mr. ESTABROOK. I so intended
it. Mr: ABBOTT. Then I am opposed
to it.

STATE SCHOOL LANDS

325

Thursday]

ESTABROOK— KIRKPATRICK

[July 13

Mr. ESTABROOK. And I have my
desk full of the evidences of the pro
priety of the measure. Because it
will be shown, by the report of the
Committee of which I am Chairman,
that by subjecting the interests of
the schools, its funds and lands, to
the officers of the different counties,
to be sold and transmitted to the
treasurer of the department of the
State, we have already sustained a
loss of $10,000 in seven counties, so
far as the records reveal. In the
first place, we asked the proper de
partments to make an exhibit of the
amount of school funds; secondly,
lands sold and the money paid into
the treasury. Now we asked the
county treasurers to state to us how
many acres have been sold; how
much money has been paid in, and
from the State Auditor and Treasurer
their report; and the result is that
the State has sustained a loss of $10,-
000 in seven counties; and it is our
intention that these irresponsible par
ties, in these several counties shall
not manipulate these funds, but that
it shall be done as we suggest, and it
is no more expense. The treasurer,
if you please, shall see to it that the
thing is done properly, and that they
shall go, at the times advertised, and
notify the different counties, and
make these sales; and that those indi
viduals, in the different counties,
shall no longer manipulate the funds
of the State.
Mr. ABBOTT. If that is the state
of affairs, I am perfectly satisfied.
Mr. KIRKPATRICK. I cannot
very well comprehend the question
under discussion, but I understand

it is claimed that there has been a
loss of school funds, and also that re
ports from several treasurers have
not been received, Now, I think, un
der the present law, the treasurers
have nothing to do with the sale of
school lands. Primarily, they know
nothing about them. The lands are
advertised as a whole, in one adver
tisement, and due notice given by the
county clerk, in his official capacity.
Now, if under our present system,
we are liable to losses in our funds,
I am ready to assist in making our
school interests more secure. As the
Legislature will soon meet, and the
whole subject, as provided for at the
present will come before them, and
will leave it as it is until that meet
ing, I am of opinion the Committee
had better refuse to adopt this sec
tion. It may be this section is prefer
able to what has been stricken out,
or to the law now in force. And un
less I have a better understanding,
I shall be obliged to vote against the
section. Mr. MASON. Mr. Chairman, I
hope that the amendment offered by
the gentleman from Douglas will pre
vail. I think there are urgent rea
sons why it should be first made in
your Constitution, that the State
shall be responsible for all these
school moneys that come into its
hands. Then it should be left in the
discretion of the State to take care of
that fund, and they should not be re
quired to send it to any place to loan.
The State is the party, who is respon
sible for it, and should be granted
the largest discretion in that regard.
To day prudence might dictate that
this fund, instead of being distributed

326

HANDLING SCHOOL FUNDS

Thursday]

MASON

[July 13

in the counties, the loan should be
invested in State warrants or stocks.
To-morrow, or in a few years hence,
public prudence might dictate that it
should be invested in United States
stocks; and this matter should be
left in the control, and under the
supervision of the Legislature and of
State officers. This idea of making
so many parties to handle money is a
very dangerous expedient in practice.
Did any body ever know it to an
swer in the every day affairs of life?
Money will wear a little in handling.
It never failed anywhere; and if you
let every county clerk handle the
fund, and there be fifty-two of them,
the loss, on an average, will be just
fifty-two times as much as though
you placed it in the hands of one
State officer, responsible to the State
only. I have no doubt, and, indeed I
might say I know, that the State
fund has suffered, not so much
through crime as through ignorance.
For in some counties I am told, the
commissioner has allowed a per cent.
of the sale of the school lands to the
county treasurer. This not through
criminality, but through ignorance.
And if you place it under the super
vision of the officers named by the
gentleman from Douglas, the Attor
ney General, through his instructions,
will see that nothing is done through
ignorance and nothing lost through
carelessness and indiscretion. It
seems to me, that the report of the
gentleman covers the whole case,
that is until the Legislature shall
otherwise provide by law, the officers
named in the Article shall have the
supervision and control and hand
ling of this money, and the State

officers shall be responsible for it,
and they responsible to the State.
There are other considerations, when
you come to consider the details of
our laws, that should move the Com
mittee to adopt this plan. The coun
ty authorities, in many instances, fix
the bond of the county officers and
approve of the securities; and the
State has no power or lot i£ the elec
tion of those commissioners who act
in the responsible capacity of ap
proving the securities of those offi
cers who handle this fund. And, ^or
this reason, the money should not be
entrusted to their hands, but to the
hands of such officers that the State
in its aggregate capacity, as such,
shall, give bonds, and determine the
amount in which their security shall
be approved. It seems to me that
any attempt to dilute or distribute
this fund is only fraught with in
creasing and geometrically increas
ing dangers. Not only dangerous to
the fund, but it is in some respects,
admitting officers who, not so often
through criminality of heart com
mit these blunders, as through ignor
ance, inability and indiscretion. And
I apprehend, after a careful investiga
tion of affairs, there are funds in
some counties — I know I could name
in the first district — funds that have
been allowed from the school fund,
that there was not the slightest au
thority in law for allowing. By
whom? By your county commission
ers. They thought their duty was to
pay some person for allowing the
handling of this fund. Now, it seems
to me, the experience of the past
should guide us, and that this pro
vision is well conceived, and should

HANDLING SCHOOL FUNDS

327

Thursday]

LAKE— WILSON

[July 13

receive the approval and sanction
of the committee. That is to say —
they may hand to Mr. A. $10,000,
and tell him you hold him and pos
terity responsible, all the property of
the State responsible for the princi
pal and the interest. Then Mr. A.
should have the handling of and de
termining who should hold and ap
prove the bond and securities of the
gentleman who holds the bond.
Mr. LAKE. Mr. Chairman, I
agree, in the main, with the honor
able gentleman from Otoe (Mr. Ma
son). If what has been represented
here be the fact, it is very clear to
my mind that the system under which
we have been operating in respect
to this fund, is not a wise one; it is
not satisfactory to the people of the
State. The gentleman from Nemaha (Mr.
Majors) seems to think there is a
conflict between the first Section of
this Article and the proposed Section.
It seems to me there is no such con
flict. It is only proposed to pro
vide for this matter until the Legis
lature can convene, and take action
upon it and provide otherwise. It
don't propose to take this matter out
of the hands of the Legislature, but
place it in proper hands until the
Legislature have had proper time to
provide some other plan for the man
agement of this fund. If you come
to the conclusion — as we must, I
think — that the plan under which
we have been operating, and now
operate, is not safe, then where can
the fund be placed where it will be
more so than in the hands of the offi
cers named in this Section? Can
any person propose a person, or an

officer where the fund will be safer?
I believe in leaving the matter to the
Legislature and I believe that to be
the general sentiment of this Com
mittee, but there is a necessity for a
change between the time when this
Constitution will be adopted, and the
time when the Legislature will have
an opportunity of considering this
matter and determine what shall be
proper to do with it. During this
time, let us provide in such a man
ner that the fund shall be safe — that
we shall right the wrong as much as
we can by the adoption of some safe
plan for the protection of these
funds. If any gentleman can sug
gest a better plan for this, I am ready
to fall right in with it. I believe
the proposition proposed is the best
one which can be found.
Mr. WILSON. Mr. Chairman, I
move that the Committee now rise,
report progress, and ask leave to sit
again. Motion agreed to.
Me. STEWART. Mr. President,
the Committee of the Whole have
had under consideration the report
of the Committee on Education,
School Funds and Lands and beg
leave to report progress, and ask
leave to sit again.
Adjournment.
Mr. LEY. Mr. President, I move
the Convention do now adjourn until
2 o'clock p. m.
Motion agreed to.
So the Convention (at twelve
o'clock and three minutes) adjourn
ed.

328

STATE EDUCATIONAL BOARD

Thursday]

SCOFIELD— SPRAGUE— MYERS

[July 13

Afternoon Session.
The Convention met at 2 P. M.
and was called to order by the Presi
dent. Committee of the Whole.
Mr. SCOFIELD. Mr. President, I
move that the Convention resolve it
self into the Committee of the Whole
for the purpose of resuming the con
sideration of the report of the Com
mittee on Education, School Funds
and Lands.
The motion was agreed to.
So the Convention in the Com
mittee of the Whole — Mr. Griggs in
the chair proceeded to consider the
report of the Committee on Educa
tion, etc.
The CHAIRMAN. Gentlemen of
the Convention the question is on the
amendment offered by the gentleman
from Saunders (Mr. Sprague).
Mr. SPRAGUE. Mr. Chairman, I
don't wish to occupy the time of this
Committee, but it seems to me that
there is something in this matter of
importance to the State. First' as a
matter of economy. Under the sub
stitute offered by the gentleman from
Douglas (Mr. Estabrook) we have
six persons constituting a board to be
paid, where you would have but one
under my substitute. Again, it is
contended that it increases the
chances for stealing. Now my ex
perience tells me that it is true that
the school fund will be safer in the
hands of the different county officers
than in the hands of two or three
men here in this city. I for one
am in favor of doing as much good
with this fund as I can for the
State, and for the purpose for which

it is given* and I think it is for the
benefit of the schools of this State
and I am in favor of putting it within
the reach of the different district
schools of the State. I think the
substitute I offer will accomplish
this and other benefits of which I
am in favor.
Mr. MYERS. Mr. Chairman, I
wish to inquire whether there is any
amendment now pending other than
the one offered by my Colleague?
(Mr. Estabrook.)
The CHAIRMAN. I have just
stated that the question is on the
substitute offered by the gentleman
from Saunders (Mr. Sprague).
Mr. MYERS. Mr. Chairman, The
amendment contemplates placing the
whole department of State in the
hands of State officers to be elected
by the people. That is, the Secretary
of State, the Auditor, Treasurer, and
the Attorney General, and that the
Board of Regents is abolished. I am
in favor of the proposition except as
to its application to the Normal
School which is not in the reach of
the State officers unless they undergo
a large personal expense in taking
charge of that institution. It is lo
cated at Peru and in possession of
a Board of Regents who, I believe
have the entire confidence of the"
.community, and I am happy to say
from reliable information that the
affairs of that institution are man
aged with economy, ability and with
the sole purpose of advancing the in
stitution. It may as well be excluded
from the amendment of my colleague.
Upon the general principle of abolish
ing the Board of Regents, I believe
it is eminently wise and proper. I

UNIVERSITY REGENTS— SCHOOL FUNDS

329

Thursday]

MYERS— WEAVER

[July 13

have for some time regarded it as
an incubus on the State. Many com
plaints were made during the last
session of the Legislature as to their
extravagance, and want of foresight
in administering its affairs. I under
stand that the institution of the Uni
versity, when in a chaotic state, quite
an infant as it still is, that enormous
¦expenditures were calculated upon to
furnish the interior departments,
that an estimate was made for fur
niture that amounted to $12,000.
When the Chancellor arrived he dis
covered that he could furnish the
entire building for one thousand dol
lars. A board that is so reckless as
that on this one single item is cer
tainly open to just animadversions.
I believe it could be more harmon
iously arranged than it has been in
the past. The people will elect men
from their midst who will administer
that institution in the interest of edu
cation without regard to the advance
ment of personal or political feelings.
It is true that the Board of Regents
has many associations that endear it
to some people. The Smithsonian
Institute, bequeathed by an English
man, has a Board of Regents, and
that Board has been administered
solely to the carrying out of the in
junctions of the gentleman who made
the bequest to the people of the
United States. I would like to see
the same ideas propagated by the
gentlemen who are to be invested
with the management of this institu
tion. ' The eyes of the whole of the
people of the United States are di
rected to the people of Nebraska for
the faithful discharge of the duty
entrusted to their care. With the

exception of the amendment I pro
pose to make at the proper time to
except the Board of Regents of the
Normal School, I believe it would
wise and proper that this change
should be made.
Mr. WEAVER. Mr. Chairman,
The substitute before the committee
proposes the distribution of this
school fund among the different
counties. I shall support it for var
ious reasons. The great object of the
school fund is for the upbuilding of
a system of schools for the State of
Nebraska. Gentlemen who oppose
this say this great school fund should
be centralized here at the capital.
They give as a reason therefor that
the individuals elected to responsible
positions might not give sufficient
security. I see no reason why the
different counties choosing men of
integrity to fill positions could not
be as responsible as men elected to
the State offices. I think it would be
much safer when it is distributed
throughout the State in 52 counties,
than here in one point. I think it
would carry out the object for which
that fund was created, for building
up the educational interests of the
State of Nebraska. If it is distri
buted among the counties they can
loan to the school districts, and they
can rear school houses for the edu
cation of children. I am greatly op
posed to this centralization system.
It has been said that it should be left
to the Legislature. I am opposed
to this. It is well known that at
the very last session of the Legis
lature an attempt was made to get
a bill through by which counties
should be entitled to school money,

330

CARE OF SCHOOL FUNDS

Thursday]

WEAVER— NEWSOM

[July 13

which failed. At the same time
there was money to loan for all other
parties; individuals could come in
and get it for the purpose of build
ing hotels, or investing in private
speculation, while counties could not
get hold of it for the purpose of ad
vancing the educational interests of
the State. I say for fear the Legis
lature in the future shall do as in
the past, give it to private individu
als, and not to counties or school
districts, there should not be a clause
in this Constitution clothing them
with the power. Gentlemen here tell
us that 10,000 acres of land have
already been lost, and that the report
of seven counties only are in. Where
is it lost? Have the counties lost
it? If so they have not shown, any
such thing! They have not shown
that it was not lost right here. I
submit this as a proposition, that if
money is loaned by the State to the
different counties, every acre in the
county is responsible for that loan,
there is a lien on the land for its
faithful payment. I hope it will not
be left in the hands of a few indi
viduals, I think it is much more safe
the nearer it gets to the people.
Mr. NEWSOM. I have a substi
tute for Mr. Sprague's amendment.
I would like to have this incorpor
ated. Instead of loaning money to
the different counties, take this plan.
All funds arising from the sale of
lands set apart for educational pur
poses shall be invested in the order
following; first, interest bearing
bonds of this State; second, interest
bearing bonds of the counties of the
State; third, interest bearing bonds
•of the United States. I am in favor

of the substitute providing for a land
office. I believe there is sufficient
to keep one man employed. This
would make it incumbent upon the
Legislature to provide how land
should be sold, I believe there is-
enough to justify it without leaving
it to the hands of three or four gen
tlemen. My objection to loaning this money
in the counties is, that some of it
must be lost. I do- not believe it.
is in the power of any man or set of
men to loan money upon individual
or State account and make all these-
loans sure to the State. And for
that reason, I am in favor of the pro
position of taking it away from the-
province of any party in this State-
to loan its money at all.
Mr. ESTABROOK. Mr. Chairman,
The import of the amendment offered
substituting section twelve, it
seems to me is not understood at all
by the gentleman from Richardson.
(Mr. Weaver). The system, as it
now prevails is for the county clerk
or treasurer, or both, to offer the-
lands for sale and give some evidence-
or title of such sale, and, if they per
form their duty, to send the money
arising upon the sale to the Treas
urer of the State, so that the money
finally, if the officers do their duty,.
finds its way to the Treasury of the'
State of Nebraska. We find, by the-
communication sent us in response
to the circular* issued, there is con
fusion everywhere, to say the least,
where there is nothing corrupt; and!
at least there is incompetency and
great carelessness. For instance, we-
have a communication from one
county, and one of the most popu-

CARE OF SCHOOL FUNDS

331

Thursday]

ESTABROOK

[July 13

lous, wherein the treasurer responds
that it is impossible for him to an
swer the inquiry as to how much land
has been sold, how much the land
which was sold brought, or what
has ever been done with any part
of the money. That it will take him
at least two weeks to look up the
records and the cost will be worth
to him at least $50; when it seems
to me that if the duty were properly
discharged the records of the whole
thing would be so compact some
where that they could be turned to
as a merchant turns to his ledger,
and show what the balance is, what
has gone from him, where, and what
are the evidences of it. But that is
the method which, has been practiced,
and which it is proposed to remedy
by my amendment. The gentleman
seems to think the policy has been
to retain the money in the county to
be loaned and used there. It is not
a proposition at all here, as I under
stand it; and I would not favor any
proposition to act as a restraint upon
the authorities. ¦ For myself, I am in
favor of loaning in the different coun
ties by some means that shall be se
cure. I would say, so that it might
not be used for purposes of corrup-.
tion, that there should be a register.
And for this there should be a pre
cedent in the State of Missouri, where
those who desire to loan the school
fund, record their names on the reg
ister, so that when the money is
ready to be loaned it is on the prin
ciple of the first come first served.
And when this is made safe by giving
us double and treble the amount in
real estate of the amount loaned, or
it is made entirely secure by one or

two signers of a joint note, it seems
to me by this the money is made se
cure. And what is most desirable
here, and which we lack, is a circulat
ing medium. So vast a sum as this
could be circulated and do good,
rather than by lying in the pigeon
hole of the treasurer's desk, as the
boy hid his cake in the cupboard so
that it could not be found until it
became mouldy. That would suit
me the best; and if anything had
been done in that regard I should
have insisted upon something of that
kind, but I forebore mentioning my
idea. On one hand I propose to lay
on the State the burden of taking
care of the fund; and on the other-
I give the officers the power to make
what disposition they please. Now,
instead of depending upon obscure-
individuals who give no bond for the
fulfilment of this duty in the differ
ent counties of the State, whether
they be sparsely settled or not, I in
sist that the treasurer himself go
there, make the sale, and place the
money in the treasury of the State,
there to remain until the Legislature
have described some mode by which
this shall be disposed of, whether it
be in bonds or by loans. And if it be
by loan I would require that no coun
ty officer ever touch one. single cent
of it, but when he wanted to he be
made to give a draft for it. I do not
propose now that we shall make pro
vision for the particular manner or
place where the investment shall be-
placed, but who shall make the sale
and who bring the money into one
common storehouse. I propose that it
be done by one responsible person
elected by the State, who shall give

332

CARE OF SCHOOL FUNDS

Thursday]

ESTABROOK— SPRAGUE— BALLARD

[July 13

bonds for the safe keening of the
money. If this be not done, then it
is committed to the hands of irre
sponsible persons throughout the
State. The treasurer I have alluded
to is the one for Cass county, one
of the most populous counties in the
State, and he writes to me to say it
will take him two weeks and be
worth $50 to send the information
we seek. Others address us in sim
ilar language, and in no instance do
they come in any form to be readily
comprehended. From those we have
received, so far as we can ascertain;
so far as we can dovetail the facts to
gether, there is a diminution in
seven counties of $10,000 in the
school fund; and that is what we pro
pose to remedy. We propose instead
of spreading this thing over the en
tire surface, where there are none re
sponsible, that the State officers prop
er shall first take it into the strong
treasury box of the State; bring it
and deposit in the State vault. There
to remain until ordered away by the
Legislature of the State of Nebraska.
Mr. SPRAGUE. I grant that my
substitute does not provide for the
appointment of a superintendent to
take the sole control of this matter,
but proposes to establish a land of
fice, which shall have the sole con
trol of the sale of this land; and it
does not propose to leave it with the
different counties, but to change it in
that very particular. It does not
leave it in the hands of the county
clerk or treasurer, but proposes that
the Legislature shall provide as they
deem best, making but one officer, in
stead of throwing it into the hands of
at least, six, who are encumbered

with other official business, which
would only attract their attention
from their particular duties. I want
that this be given to one officer who
shall attend to this alone.
Mr. BALLARD. I wish to inquire
of the Chairman of the Committee
how stands the report from Washing
ton county.
Mr. ESTABROOK. I do not recol
lect. We are getting them in every
day, and the Committee will as soon
as they can get together, make a sup
plementary report.
Mr. BALLARD. I know something
about the making of that report and
the business there. Our treasurer
made his report promptly.
Mr. ESTABROOK. I will state that
I have not examined that report very
closely; but I know that the State
Auditor reports 860 acres sold more
than the returns from Washington
county indicate.
Mr. BALLARD. Yes, I had heard
of that matter. I am acquainted
with the amount received from our
county treasurer. He is an old set
tler, and one of the most active busi
ness men in the State. But sir, with
regard to the difficulty that come up
'before this Convention about making
provisions for this fund, it seems to
me so far as the competency or in
competency of the county officers, and
the competency, or incompetency of
the State officers is concerned, that it
is a question with which we have
nothing to do. I have had something
to do with the school fund in the
State of Iowa, where I used to live.
That State provided for the election
of a State superintendent, and for the
election of an officer called the school

CARE OF SCHOOL FUNDS

333

Thursday]

BALLARD— PRICE— HASCALL

[July 13

county commissioner in each county,
and his duty was to sell, under the
direction of the State superintendent,
school lands in the county. I wish to
speak of one of our State superin
tendents that I was acquainted with.
7his gentleman was elected State
superintendent, gave bonds which
were approved by the State officers
having some of our leading men as
his bondsmen, and at one dash he
cleaned up the small sum of $42,000.
The largest steal I ever knew a coun
ty officer to make, of the school funds,
was $7,000. Hence I say that our
State officers are just as likely to
steal from this fund, as county offi
cers. If these officers are dishonest,
they will steal any how. Let us elect
honest men to these offices. Where
have the funds of this State been, I
ask, during the last few years? Have
they all been in the hands of county
officers? I think, it seems to me we
have heard our State officers men
tioned in connection with this school
fund. The people have the remedy for
these evils in their own hands — that
is to elect honest men for county
and State officials.
Mr. PRICE. Mr. Chairman, I fa
vor the amendment of the gentleman
from Saunders (Mr. Sprague) from
the experience I have had, I believe
it is better, and more expedient, to
place this fund in the hands of the
county officers. I believe in allowing
counties to retain the amounts raised
in the county, and have the use of it.
I think it will work many incon
veniences to have the money all in
one place. It seems to me it is bet
ter to scatter it in different parts of
the State. It seems to me there is

no use in requiring the different coun
ty treasurers to send the funds col
lected to the State treasurer, and
there is more danger of losing the
funds, than if they are retained in the
county. The funds should be loaned
out. The Legislature can pass laws
stating how is should be loaned. They
can bond county treasurers, for in
stance, in a sufficient amount to make
him responsible for the funds coming
into his hands. Many portions of the
State are languishing to day for the
want of money to improve their nat
ural advantages. If the people could
get, of the county treasurers, a por
tion of the State funds at 10% say,
they would have means to open up
their farms,, and otherwise improve
the country, and I am sure the risk
of losing the money in this way,
cannot be as great as under the
present system. I approve of the
amendment of the gentleman from
Saunders (Mr. Sprague.)
Mr. HASCALL. I call for the read
ing of the amendment.
The Secretary read, as follows:
"The Superintendent of Public In
struction and one commissioner to
be elected from each judicial district
within the State shall constitute a
State board of education. The Super
intendent of Public Instruction shall
be the presiding officer of the board.
Such board shall have the general _
management and control of the af-"
fairs of the State Normal schools and
the State University and Agricultural
College, and shall take the place and
do the duties of regents of said in
stitutions. Such board shall also
have the general supervision of pub
lic instruction in the State."
Mr. HASCALL. Mr. Chairman, If
it is the will and desire of the people

334:

STATE LANDS AND FUNDS

Thursday]

MAXWELL— ROBINSON— KIRKPATRICK

[July 13

of this State that the school fund be
loaned out on good and sufficient se
curity, to the people of the State,
then the amendment drawn by the
gentleman from Douglas would ac
complish that result, and it is not
necessary to put the details in this
Constitution. I understand the pres
ent board of regents are to act, until
the Legislature provides otherwise: if
then it is wished to loan this money
on good security throughout the
State, it can be indicated at that time.
The first section of the report we have
adopted says this fund shall be man
aged by the Legislature. Secondly, I
think it would be improper and idle
to adopt this amendment of the gen
tleman from Saunders (Mr. Sprague)
when by adopting the amendment of
fered as a substitute for the original
amendment, it will accomplish all
that is desired.
Mr. MAXWELL. Mr. Chairman,
my friend from Douglas (Mr. Esta
brook) states there is a discrepancy
between the amount of money re
ceived, by the State treasurer, and the
amount of land sold, as reported by
the different county treasurers. Now
perhaps that can be explained, for
instance, a man may purchase land
under the conditions by which the
school land is sold, making partial
payments, but fails to make the pay
ments and his title is not perfected. I
would inquire of the gentleman from
Douglas (Mr. Estabrook) whether
there is a discrepancy between the re
port of the State treasurer and the
report of the treasurer of Cass coun
ty. Mr. ESTABROOK. Mr. Chairman,
I would say, for the gentleman from

Cass, (Mr. Maxwell) that the treas
urer of that county has not yet re
ported, but says it will take two
weeks to make returns and it will
cost him about $50. If the duties
of his office are properly attended to,
is it not strange that it takes so
long to make returns?
Mr. MAXWELL. Mr. Chairman,
It seems to me it would be better
to keep this fund in the counties, that
is to give each county the amount of
money received from the sale of
lands in that county, and require
them to pay the interest annually.
It seems to me this would be a much
better way than to have this money
centralized here, and I am in favor
of the substitute.
Mr. ROBINSON. Mr.- Chairman,
this section as first submitted, pro
vides for the care of. this money until
the Legislature shall otherwise pro
vide by law. For my part I wish the
gentleman from Douglas had worded
his amendment in such a manner as
to prevent the loan of this money to
individuals; upon the whole I don't
think there will be a great deal of
money made by the state in loaning
money on real estate security, but
let it be loaned on securities having
a real market value.
Mr. KIRKPATRICK. Mr. Chair
man, I don't know that I understand
the substitute offered by the gentle
man, but if I do understand it, I
see very little objectionable in it. It
provides for a State land office to be
located at the Capital, which shall
have charge of all the school lands
of the State. Now I think that is
objectionable, for instance, when the
lands are sold in the several counties

STATE LANDS AND FUNDS

33f>

Thursday]

GRIGGS

[July 13

they are purchased by the citizens
of the counties, and it would work a
hardship for those persons to have to
•come here to attend those sales. Now,
sir I would be in favor of leaving
this matter to the action of the Leg
islature, and I am of the opinion that
this great school fund should not be
jput into the hands of one man here at
the Capital. There has been favor
itism in the loan of this money in the
past and perhaps it might be so here
after unless we guard against it, and
I would oppose the amendment for
these reasons.
Mr. GRIGGS. Mr. Chairman, I
am in favor of the principle contained
in this substitute, that is, the loan
ing of this fund to the different dis
tricts of the State. I believe that it
would be of great good to the coun
ties in our 12 th district, the one
which I now represent but, I am op
posed to this State land office because
I think there are chances for great
corruption and fraud. Another rea
son why I am opposed to it is, that
it says this fund shall be given to the
counties and* loaned out to individu
als: I am opposed to that for I be
lieve that this State has lost several
thousand dollars, in loaning, to ir
responsible individuals. I believe
with the gentleman from Lancaster
(Mr. Robinson) that it should be
loaned on good securities, such as
school district bonds, city or United
States bonds. ' Another reason for op
posing it is because it would make
it necessary for every person desir
ing to purchase school lands to come
to this place for that purpose.
Mr. MASON. Mr. Chairman, I
apprehend that some of the difficul

ties arise from the fact that we are
considering two propositions instead
of one, under this substitute; the one
is the sale of the school lands and
the other is the care of the school
funds. It is a matter of great im
portance to the State and people and
in my judgment coming generations
are interested in the mode which this
Convention shall settle upon, of dis
posing of the public lands, and after
presenting my own views of this
question, and in order that it may be
thoroughly considered, I shall take
occasion to move a recommitment of ,
this subject to the Committee from
whence it came, that they may con
sider some of the views presented in
Committee of the Whole. I submit
to the Convention the propriety of
providing in the Constitution for a
State Land Commissioner who shall
have charge of all public lands, to
dispose of them as directed by law,
requiring the State treasurer to re
ceive all purchase money for land
sold, and to give duplicate receipts,
one to the purchaser and one to the
Land Commissioner, on receipt of the
money. The treasurer can easily do
this and such a system would remove
all temptations, and avoid the pos
sibility of speculations. The Land
Commissioner would never handle
any money at all. Besides, Mr.
Chairman, in presenting these views
to the Convention, there seems to be
but one voice coming from every
county in this State, that nobody can
tell what lands this State holds to
day. No State officer has been able
to inform us up to this hour what
particular tracts have been selected
and the total approved to the state.

336

STATE LAND DEPARTMENT

Thursday]

MASON

[July 13

No State officer has been able to in
form us what particular tracts of
land have been sold and paid for,
which have been secured to the State.
Now, supposing any man's private
affairs were left in this uncertain
condition, is there any business man
in the world who would trust him,
when neither he himself nor any of
his clerks knew what his assets or li
abilities were, or what he had?
When you adopt this system in your
Constitution, creating this Land
Commissioner, you dedicate him to
the specific purposes of making cer
tain that which is now uncertain;
you commit to his special care and
custody the securing of what lands
are not secured, selecting what are
not selected, devote his time and at
tention to the special interest of the
State in regard to its real property.
Besides, which member of this Con
vention that holds in his own right,
as many as we hold a doubtful title
to, would trust it to a dozen and one
individuals? You would select one
to straighten up the whole business.
It seems to me this matter is almost
too plain for discussion, that we have
suffered hundreds; yes thousands,
tens of thousands of dollars for want
of a Land Commissioner, one who
could devote his whole time and at
tention to this matter. We are con
tented to have a gentleman look after
that interest and hold him responsi
ble. In that we are protecting the
interests of the whole State and hold
ing hundreds of thousands of acres
in our hands. More than that, we
have no department, no individual
to whose special care and keeping
it is entrusted, we inquire of the Gov

ernor, he sends us to the Auditor,
the Auditor sends us to the Treas
urer and the Treasurer does not
know anything about it, and who in
God's name does? It seems to me it
is plain we ought to establish a Land
department and Land Commissioner
who shall have the exclusive control
of the lands, to sell them and see that
the money is paid over to the Treas
urer and the Treasurer take duplicate
receipts for it, if school land deposit
the money in the school fund, if other
lands, to the fund to wiaich it belongs.
It seems to me our friends who have
declaimed so loudly in favor of the
distribution of this money through
the State have entirely misappre
hended the view which has been
taken. Nobody has opposed that, we
say it should be left to the discre
tion of the Legislature. Were I leg
islating to day, I should say the saf
est investment that could be made of
the school m'oneys to day would be in
the floating indebtedness of this-
State, every dollar of which we must
redeem, and pay ten cents on the dol
lar. I say it is much safer than real
and personal property. Were I legis
lating I should advocate this as a
present rule, a year from to day
that rule might not work so well;
hence, so far as investment is con
cerned it should be to the Legisla
ture as a matter of legislative dis
cretion and law. So far as the estab
lishment of the land department isr
concerned it seems to me it must
commend itself to the judgment of
this Committee. Consider our State,
extending from the L'eau qui Court
to the Kansas line, from the
Missouri river 500 miles West,.

STATE LAND DEPARTMENT

337

Thursday]

MASON— MYERS— ESTABROOK

[July 13

who is looking after it? What gen
tleman is specially dedicated to pro
tect this interest for the education of
the children of the State? Why it
seems to me our first duty is to
establish a Land department ahd
make that department such that
every plat shall be put on books per
taining to that office, and let the
Legislature provided for the sale,
then let us see how it will work.
The Commissioner sees fit to sell the
school land in my county to day.
He goes to the plat and knows every
acre reverted to the State, it is his
special duty; he advertises every
quarter section in that' county that
will be sold on such a day. The man
who purchases pays his money to the
Treasurer, it is in the Treasury, the
Legislature can lay their hand on it,
and say how it shall be disposed of.
This outline of my own views in re
spect to the management of these
affairs can reach this result and ac
complish the object in view. I will
move to recommit this subject matter
of the section twelve back to the
Committee for their consideration.
While I move to recommit for this ob
ject, I would desire to hear the views
of every member of the Convention,
men who have experience in business
and financial affairs, if it is not a
matter of the first importance that
we have a Land Commissioner whose
special business it shall be first to as
certain what we have got, second,
ascertain what is in doubt, third, go
to Washington if necessary to secure
it. It is to attain this end I move the
recommitment of the proposition now
before the Convention.
Mr. MYERS. The Committee will
22

be compelled to rise and report pro
gress, and it can be re-committed in
the Convention.
Mr. MASON. I move that the
Committee now rise and report pro
gress for the purpose of re-commit-
ing this matter to the Committee
from whence it came, to take into
consideration the views of the vari
ous members of the Convention.
Mr. ESTABROOK. Let me sug
gest the last section also.
Mr. MYERS. I hope the gentle
man from Otoe (Mr. Mason) will in
sist on his motion for the reason
this is the most important feature in
the whole bill. Let us attend to one
thing at a time. The proper course,
in view of the revelations made by
the gentleman from, Otoe (Mr. Ma
son) is to do as he has indicated, this
Committee rise and refer it back.
After that Committee has perfected
the bill, immediately go back into
Committee of the Whole, finish the
bill and- report it to the Convention.
That is the regular course of proceed
ing and I hope the gentleman who is
the chairman of the Committee will
acquiesce in the motion of the gen
tleman from Otoe (Mr. Mason.)
Mr. ESTABROOK. Mr. Chairman,
I would suggest to the gentleman,
who is a good parliamentarian, be
fore he takes his seat, that we need
not arise for the purpose of making
the recommendation. We can now
declare that when we arise, this
shall be reported back with the
recommendation that this be referred
to the Committee for the purpose of
re-consideration. Mr. CHAIRMAN. The motion is
that when we do arise, we report the

338

SECTARIAN SCHOOLS

Thursdaj ]

MASON— MYERS— GRIGGS

[July 13

bill back with the recommendation
that this be re-considered.
Mr. MASON. Mr. Chairman, I will
move that when the Committee rises
it report the bill back to the Com
mittee from whence it came, with the
instruction that it take into consider
ation the propriety of creating a
Land Commissioner and establish a
general land office for the State.
The motion was agreed to.
Mr. STRICKLAND. I move the
adoption of section twelve, which will
now be thirteen.
The Secretary read the section.
Mr. STRICKLAND. I will with
draw my motion on the ground that
the gentleman from Otoe has an
amendment. Mr. NEWSOM. The Idea I have In
this which I now offer is to amend
the section by adding the words "nor
shall the State accept of any grant,
conveyance or bequest of moneys,
lands, or other property to be used
for sectarian purposes."
The amendment was agreed to.
Mr. MYERS. Mr. Chairman, I of
fer the following, to go in at the end
of the section as amended; "nor shall
any part of the school fund be devot
ed or appropriated to the support of
private schools."
Mr. MASON.' What is the object of
that? Mr. MYERS. The object of this is
to prevent a division of the school
fund for every charitable, sectarian
or religious purpose. ,It is to keep
the school fund intact and divided
only among the schools. It is to pre
vent the moneys of the State from
being divided, taken or appropriated
from the treasury to the support of a

Lutheran, Presbyterian or any other
school that wants to make a levy
upon the general school fund for the
advancement of their sectarian inter
ests. I think it is the policy of
the State to keep the money intact,
and appropriate entirely to the sup
port of State schools; and no relig
ious institution shall claim any of
this fund for the advancement of
their peculiar ideas.
Mr. GRIGGS. Is not this included
in the first section?
Mr. MYERS. I would like to have
a clean and distinct enunciation of
the fact that this money is never to
be appropriated for sectarian purpo
ses. If that clause covers the ground
I shall be satisfied. I withdraw my
amendment for the purpose of allow
ing the gentleman from Gage (Mr.
Griggs) to make an amendment
which will probably cover the ground.
Mr. GRIGGS. I move to insert af
ter the word "supported " in .the first
line "in whole or in part."
Mr. WAKELEY. I do not know
that there is any objection to this
amendment only that it seems to be
entirely unnecessary. The sixth sub
division provides, in emphatic words,
that "the school funds shall be ex
clusively applied to the following
objects:" Mr. GRIGGS. Suppose a school was
only partially supported by the school
fund, like many private schools are?
They would be partially supported
by subscription and part by the pub
lic fund, and my object was to cut
that out entirely, so that it would
not be supported except in the public
schools. Mr. MASON. Mr. Chairman, I

SECTARIAN SCHOOLS

339

Thursday]

MASON— McCANN

[July 13

take the same view of this matter
that the honorable gentleman from
Douglas (Mr. Wakeley) does. If you
look at the sixth sub-division of sec
tion three in connection with section
twelve, the work is wholly and com
pletely done. And as it now reads
I regard it as entirely unnecessary.
The Legislature may provide "for
the support and maintenance of com
mon schools in each school dis
trict in the State." Support
and maintenance! also the second —
¦"any residue of such funds shall be
appropriated to the support and
maintenance of academies and nor
mal schools and schools of an inter
mediate grade between the com
mon schools and the University,
and the purchase of suitable li
braries and apparatus therefor."
Now read right after that the
twelfth — "No sectarian instruction
shall be allowed in any school or in
stitution supported by the public
funds set apart for educational pur
poses." "No sectarian institution"
etc., and can any one doubt but that
you have driven the nail fast and
fixed it? I have no objection to the
amendment only that it does not look
well when construed with the other
section of the bill.
The motion was not agreed to.
The section as amended was
agreed to.
Mr. STRICKLAND. I move that
the Committee do now arise and re
port progress.
Motion agreed to.
The CHAIRMAN. Mr. President,
your Committee have had under con
sideration the report of the Commit
tee on Education, School Funds and

Lands, and report progress and ask
that the report be re-committed to
the Committee on Education for
amendment. Mr. McCANN. I move that the
Convention do now resolve itself into
Committee of the Whole for the fur
ther considering the report of the
Committee on Bill of Rights.
The motion was withdrawn.
The PRESIDENT. The report of
the Committee will be considered
adopted, unless some gentleman ob
jects. Mr. McCANN. Mr. Chairman, I
move we now resolve ourselves into
Committee of the Whole upon the re
port of the Committee on Bill of
Rights. Leave of Absence.
Mr. PHILPOTT. Mr. Chairman, I
ask leave of absence for my colleague,
Mr. Robinson, for one hour from
four o'clock.
Leave granted.
Committee of the Whole.
The PRESIDENT. You have
heard the motion — to go into Com
mittee of the Whole upon the report
of the Committee on Bill of Rights.
The motion was agreed to and the
Convention went into Committee of
the Whole, with Mr. Griggs in the
Chair. The CHAIRMAN. Gentlemen of
the Committee, we now have under
consideration the amendment offered
by the gentleman from Nemaha,
(Mr. Thomas) to Sec. 8. as follows:
"Provided, that the Legislature
may provide for the trial of criminal
offences in any or all cases without
the intervention of a grand jury."

340

GRAND JURY SYSTEM

Thursday]

WAKELEY— LAKE

[July 13

Mr. WAKELEY. Mr. Chairman, I
will read for information, a section
which I will propose as a substitute
for section 8, and I shall move to
amend the amendment of the gentle
man from Nemaha, by striking out
section 8, and insert as follows:
"No person shall be held to an
swer for capital or otherwise infa
mous crime unless on a presentment
or indictment by a grand jury, or in
formation by a public prosecutor, ex
cept in cases arising in the army and
navy or militia when in actual ser
vice in time of war or public danger,
and provision should be made by law
for the empannelling of grand juries
whenever the respective courts or
judges thereof shall order."
Mr. WAKELEY. Mr. Chairman, I
have used the language employed in
the Constitution of the United States
relating to criminal and infamous of
fences. The Secretary read the amend
ment. Mr. WAKELEY. Mr. Chairman, I
have but a few words to say in sup
port of the amendment, and I don't
care to renew the discussion which
was had the other day, upon the ex
pediency of abolishing the grand
juries. I have understood, from the
tenor of the remarks of the gentle
men who thought it advisable to dis
pense with grand juries that they
were in favor of leaving the matter
with the Legislature, and let that
body try the experiment of doing
away with grand juries but with
power to restore the system if it was
thought best. I think this provision
meets the views of those desirous of
leaving the matter with the Legisla
ture and yet leaves it so that when

the judges of the court deem it nec
essary, they may empannel a grand
jury. I speak for one of those who
have doubted the wisdom of abolish
ing the grand jury, but I say if the-
Legislature deem it proper to dis
pense with the grand jury, I don't see-
that any particular harm can be done..
I don't wish to be bigoted or captious
with reference to any views that I
may have. I would like to hear from
the gentlemen who have advocated
the other side of the question and
to know if this will not be satisfac
tory. Mr. THOMAS. Mr. Chairman, I
would like to have the amewlinent
read again.
The Secretary reads the amend
ment. Mr. LAKE. Mr. Chairman, If I un
derstand the proposed substitute it is-
all — so far as I am concerned, as one
of the members of the Convention
favoring the dispensing of grand
juries — it is all I ask. It doea
however, go farther than the-
proposition of the gentleman from
Nemaha (Mr. Thomas.) It provides,
in case grand juries are dispensed
with that prosecutions shall be con
ducted as they are now conducted in
Michigan. We have the assurance of
the Chief Justice of Michigan that
that system has been adopted 12
years ago and gives general satis
faction. It is now seldom that a.
grand jury is empanneled in Michi
gan. I am anxious that this safe
guard shall be thrown around the
Legislature. Believing that this sub
stitute secures substantially that
which we were asking, I am willing

GRAND JURY SYSTEM

341

Thursday]

THOMAS— ESTABROOK

[July 13

to accept it, I see no covert object,
here it reads, as follows:
"No person shall be held to an
swer for a capital or otherwise in
famous crime unless on a present
ment or indictment by a grand jury,
or information by a public prosecu
tor, except in cases arising in the
army and navy or militia when in
actual service in time of war or pub
lic danger, and provision shall be
made by law for the empannelling of
grand juries whenever the respective
courts or judges thereof, shall order."
This seems to confer upon the Leg
islature the right and authority to
say that a person may be prosecuted
by information — it seems to be by
indictment or information by a pub
lic prosecutor, except in certain cases.
I am desirous of seeing this reform
practiced in Nebraska. I trust this
amendment will commend itself to
the gentlemen who have acted with
me and the gentleman from Nemaha
(Mr. Thomas) on this question.
Mr. THOMAS. Mr. Chairman, I
am perfectly willing to accept this
substitute, that is just what we want
ed. I am not in favor of doing away
entirely with this system, but of leav
ing it to the Legislature. I will with
draw my amendment and support
this substitute.
Mr. ESTABROOK. Mr. Chairman,
I object to the substitute. In the first
place it recognizes capital punish
ment, I am opposed to that and
hope we will abolish it. There is one
phrase that I cannot understand why
it is here, and if there is any gentle
man here that can see its propriety
here he must be able to understand
the language better than I, and that
is "otherwise infamous crime." That
appears to be drawn from the an

cient laws where I believe it meant
taint of blood and a forfeiture of
goods and other chattels, but, sir, we
know no such thing in this country,
and I hope we will take this one ad
ditional band off of our heads and let
our brains work a little more free. I
move to amend by striking out the
words "otherwise infamous crime."
Mr. STRICKLAND. Mr Chairman-,
I do not intend to occupy much of the,
time of this Committeee today. I am
willing the matter should be acted
upon by the Committee and indeed
the amendments substantially leaving
to the courts the authority on proper
occasions to call a grand jury and al
so delegating authority to the Legis
lature in the premises is a great im
provement upon the old system, but
I am directly and absolutely opposed
to the whole grand jury system and
I will be until the last day of this
Convention for good and sufficient
reasons which with those I have pre
sented heretofore I shall continue to
present until the subject matter is
dispensed with. Among other things
of great importance for the consider
ation — not the least is the question
of expenditure. The grand jury sys
tem is one of the most expensive of
any or all of the expenses attached
to the machinery of the judiciary of
the state. I assert what I stated be
fore that I believe it will constitute
one third of the entire expense of
our courts. I mention this in order
to show the enormous expense at
tending a most useless and worthless
system. There are other and greater
reasons for the entire abolition of
the whole system — I was struck forc
ibly with the remark of my colleague,

342

GRAND JURY SYSTEM

Thursday]

STRICKLAND

[July 13

Judge Lake, that the advocates of the
system failed to produce any special
reasons or good arguments for its re
tention except it was a time honored
institution. It is well enough to re
mind gentlemen that the royalty of
Kings and their divine right to rule
for hundreds of years were recogniz
ed as time honored institutions. The
grand jury system has been dragged
along for many hundred years,
through ages of progression with oth
er things, a dead corpse as antiquated
as the Egyptian mummies without
any reasons for its retention. It is in
vain that we hunt for its origin. I
have waded through the leaves of
many a musty book and have solicit
ed information from many of my
more learned brethren in the law all
to no purpose. The gentleman from
Otoe in his remarks on this question
presented some reasons in favor of
the grand jury system which I pro
pose to notice. One was that 16 men
were better to present a man on in
dictment than one man, but in his
speech here to-day on the question of
school funds he argues that one man
was better than 16 or 100 — to use' a
homely phrase "what is sauce for the
Goose is sauce for the Gander." If
one man is better in the Jast case
he is better in the first. The grand
jury sits in secret conclave and as I
said the other day and as will be seen
by the statutes hears but one side of
the testimony in the case and each
honest grand juryman acting under
his conscientious convictions is com
pelled to find in many cases upon
ex parte testimony an indictment.
When in many cases if the examina
tion was public and the accused had

the opportunity of facing his accuser
he could explain away the last shad
ow of suspicion against his good rep-
uation. I exceedingly regret that the
gentlemanfromOtoe did what I never
yet found it necessary to do in a delib
erative body, descended to personali
ties in which he said the gentleman
may be in the situation of the boy
who got bitten by a dog and ever af
terwards hated the dog. I will say iu
answer to the gentleman that if I
should see an old dog lying around
loose without an owner no one know
ing from whence he came, cross and
snarling, exhibiting signs of hydro
phobia and he had bitten my neighbor
or my neighbor's children, and threat
ened to bite my child in his paroxysms
of madness I would find a double
barrelled shot-gun and go hunting for
that dog. A grand jury sitting in
secrecy with closed doors acting in
the dark upon ex parte testimony —
acting indiscriminately upon the, lib
erties of our citizens is far more dan
gerous to honest character than the
bite of a rabid dog. If a high official
were accused of malfeasance in
office or a high judicial officer accused
Of trading and bartering judicial de
cisions as merchandise or accused of
purloining county bonds, or any per
son accused of horse stealing, it
would not be necessary for the in
tervention of a grand jury tb bring
parties to a proper trial. Informa
tion and prosecution before a traverse
jury would be sufficient. How is it
possible that a grand jury can arrive
at a reasonable certainty of guilt or
innocence when by law they can and
do only examine one side of the case?
Perhaps those that know the most

GRAND JURY SYSTEM

343

Thursday]

STRICKLAND

[July 13

about the case before them are not
summoned and yet the honest intel
ligent grand juror has to act under
the ban of the law. Having heard
but the one side, the accusation. It
will not do to say that timid wit
nesses may go before a grand jury for
purposes of securing justice to the
state in the punishment of criminals,
for the fact is the grand jury is only
an accusatory body and the same
Witnesses if conviction is had and
public justice attained have to appear
before a court and traverse jury ex
posed to the severest criticism by
way of cross examination, meeting
face to face in open day light the
accused. Can any grand jury how
ever intelligent and honest arrive at
a just conclusion when by law they
can hear only one side and that in
secrecy — what offence known to the
laws of the land is there in free and
enlightened Nebraska that a grand
jury could bring to light, that an up
right and able prosecutor would not?
Would a conscientious and learned
prosecutor relying upon the justice of
his motives be liable to prosecute
frivolous cases or omit to pursue
with the vigor of the law the offend
ing and the guilty? Why entail upon
the state government the unnecessary
expenses of two prosecutions when
one will answer the purpose of jus
tice and punishment of crimes.
' Better get rid of the barbarous and
anti-republican system at once and
rid the tax payers of its " enormous
expenses. It is useless for the stick
lers for this system to urge its age as
a reason for its continuance without
exhibiting some other and more prac
tical reasons why it should be retain

ed. The reasons given by the friends
of grand juries are about as sensible
as in a given case in point. A certain
young General in old England who
afterwards acquired a world wide
fame, having been appointed to the
command of a post, heing a practical
utilitarian looked ariout over his
new command and the surroundings
and found that after the necessary
guards had been detailed each day
for service, a guard pacing to and fro
in front of a fence. On inquiry of the
Adjutant of the post he was unable
to find the object or use of said guard.
Upon pursuing his inquiry further it
was found that the guard had been
placed in front of the fence twenty-
six years before at which time the
fence had been newly painted to keep
persons off and preserve the paint.
The order creating such guard was
limited to five days. The officer whose
business it was to discontinue said
guard had neglected his duty. So
through the many ages of civilization,
progression and reform no one know
ing for what a grand jury was insti
tuted or able to assign any good reas
on for its continuance we have neg
lected our duty and continued them
without knowing why.
After a fruitless search to find
where the grand jury was first inaug
urated, I have given up in despair,
but I will take occasion to quote from
an author well known throughout
this continent giving his description
of what was anciently a species of
grand juries and their workings, I al
lude to Mark Twain in his "Innocents
Abroad." He is describing the Doges
of Venice and their manner of visit
ing punishment upon political offend-

344

GRAND JURY SYSTEM

Thursday]

MASON

[July 13

ers by marching them over the
"Bridge of Sighs." He says, "At the
head of the giant staircase where
Marino Faliero was beheaded and
where the Doges were crowned in an
cient times two small slits in the stone
were pointed out, two harmless insig
nificant orifices^that would never at
tract a stranger's attention. Yet those
were the terrible Lion's Mouths, these
were the throats down which went
the anonymous accusations thrust in
secretly at dead of night by an enemy
that doomed many an innocent man
to walk the "Bridge of Sighs" and
descend into the dungeon which
none entered and hoped to see the sun
again. This was in the old days
when the politicians alone governed
Venice. There were one thousand
five hundred patricans — From these
three hundred Senators were chosen
— From the Senators a Doge and a
Council of ten were selected and by a
secret ballot the ten chose from their
own number a council of three. All
these were government spies. Men
spoke in whispers in Venice and no
man trusted his neighbor — not always
his own brother. The members of that
dread tribunal met at night in a
chamber by themselves. It was their
duty to judge heinous political crimes
— a nod to the executioner was suf
ficient — the doomed man was march
ed down the hall and out at a door
way into the covered Bridge of Sighs,
through it and into the dungeon and
unto his death. If a man had an ene
my in those old . days the cleverest
thing he could do was to slip a note
for the Council of three into the
Lion's mouth saying this man is plot
ting against the government. If the

awful Three found no proof ten to one
they would drown him anyhow be
cause he was a deep rascal since his
plots were unsolvable. This is the
kind of grand jury they had in those
days. We can liken it unto the secret
inquisition and persecution of to-day
by our grand jury.
Mr. MASON. Mr. Chairman, since
this discussion opened I have, so far
as I could, made inquiry as to the
practical results, where the grand
jury system has been in part abro
gated. I invited a personal acquain
tance to write me as to the practical
workings of the system in his state,
and I read his letter in part.
"We did not entirely abolish the
grand jury system in this state
(Michigan), but allow one to be sum
moned at any time when deemed nec
essary by the judge and prosecuting
attorney. When one is called the
party can only be put upon the trial
upon information filed by the prose
cuting attorney and which must be
passed upon before a magistrate and
held to trial by him. The general
sentiment, in which I concur, is that
grand juries except in very peculiar
cases have become unnecessary, it is
very rare indeed that one is summon
ed in this state."
This is all upon that subject, it is
signed by T. M. Cooley, Michigan.
This information together with
other information has induced me to
favor the amendment offered by
Judge Wakeley. I am not one of
those, sir, who are disposed to fly
from the evils we have, to those we
know not of ordinarily, and, sir, I re
gret that in my discussions in this
Convention, no gentleman should
have seen fit to apply any dreamy
reminiscence to himself, certainly I
shot no arrows at anyone personal-

"INFAMOUS CRIMES'

345

Thursday]

MASON— THOMAS— WAKELEY

[July 13

ly, but if the bird was hit it was not
in my thought, and with this I am
content to adopt the amendment here
presented. I see no necessity for re
taining the words "infamous crimes."
I think the gentleman was correct in
defining infamous crimes, any offense
that works a forfeiture of goods,
•chattels and corruption of blood. I
deem it but just to say to this Con
vention that while' my views have
heen modified by the suggestions
from my friends on the other side,
and the arguments offered, I did
hear some arguments that convinced
think ours was at that time. Bui with
me that the other side was not quite
as barren as some of the opposition
me one year's practice is worth , all
the theories in the world. And what
had more weight in convincing my
judgment or leading me to deviate
from the course I had thus marked
•out was the communication I have
read, together with one or two others
which I have received from other
sources. And hence I am content
with this amendment.
Mr. THOMAS. I would like to ask
the gentleman from Douglas (Mr.
.Estabrook) what his amendment was.
The CHAIRMAN. It was to strike
out the words "or otherwise infa
mous crimes".
Mr. THOMAS. Mr. Chairman; I
have drawn an amendment, corres
ponding with the section we have
now, changing it only as proposed by
Judge Wakeley. It reads:
"No person shall be held to answer
for criminal offense, except in cases
in which the punishment is by fine or
imprisonment or otherwise than in
the penitentiary, in cases of impeach
ment, and in cases arising in the

army and navy or in the militia, when
in actual service in time of war or
public danger, unless on a present
ment or indictment of a grand jury,
or information of a public prosecutor.
And provisions shall be made by law
for the empanelling of grand juries
whenever the respective courts or the
judge thereof shall order."
Mr. WAKELEY. Mr. Chairman, I
have no objection to the change sug
gested by the gentleman from Nema
ha. If he will offer that as a substi
tute to the section, I will withdraw
mine. The substitute of Mr. Thomas was
agreed to.
The Secretary read section nine, as
follows: fl" 9. In all criminal prosecutions
the accused shall have the right to
appear and defend in person and by
counsel; to demand the nature and
cause of the accusation, and to have
a copy thereof; to meet the witnesses
face to face, and to have process to
compel the attendance of witnesses in
his behalf; and speedy public trial by
an impartial jury of the county or
district in which the offence is alleg
ed to have been committed.
Mr. ESTABROOK. I move its adop
tion, sir.
Motion agreed to.
The Secretary then read section
ten, as follows:
|f 10. No person shall be compelled
in any criminal case to give evidence
against himself, or be twice put in
jeopardy for the same offence.
Mr. MAJORS. I move its adoption.
The motion was agreed to.
The Secretary read section eleven,
as follows:
|f 11. All penalties shall be propor
tioned to the nature of the offense;
and no conviction shall work corrup
tion of blood or forfeiture of estate;
nor shall any person be transported

346

PRIVATE PROPERTY— COMPENSATION

Thursday]

MAJORS— WAKELEY— THOMAS

[July 13

out of the state for any offense com
mitted within the same, nor shall
cruel and unusual punishment be in
flicted. Mr STRICKLAND. I move its adop
tion. The motion was agreed to.
The Secretary read section twelve,
as follows:
|f 12. No person shall be imprison
ed for debt, arising out of, or founded
on a contract express or implied, ex
cept in cases where there is strong
presumption of fraud.
Mr. MAJORS. I move its adoption.
The motion was agreed to.
The Secretary read section
thirteen, as follows :
|f 13 Private property shall not be
taken or damaged for public use
without just compensation. Such
compensation when not made by the
state, shall be ascertained by a jury
as shall be prescribed by law. The
fee of land taken for railroad tracks,
without consent of the owners there
of, shall remain in such owners, sub
ject to the use for which it was taken.
Mr. MASON. I desire to amend so
as to require, in every instance, that
the actual value of the property shall
be paid for in money without any de
ductions for supposed benefits.
Mr. WAKELEY. I would like to
say a word upon the subject. I un
derstand that to be an unquestionable
rule of the law at this time. I believe
it to be well settled by the courts in
construing precisely such provisions
as this, that no supposed benefits can
be offset against the value of lands
taken. And I do not believe the pro
vision to be necessary. It seems to
me to be rather admitted that with
out such a provision the contrary
rule might be adopted. If I can be
satisfied of its necessity I will support

it. Mr. MASON. I apprehend that the
rule of law will be found to be that
where property is taken the party de
rives peculiar benefit owing to the in-
provement for which it is taken, over
and above that which immediate
owners or parties do derive — that in
that instance the peculiar benefit may
be offset against the damages. I
move to insert "previously paid in
money" after the word "compensa
tion," where it first occurs.
Mr. THOMAS. I. think there are
two questions here. One whether it
be paid partly in money or in benefits.
And the other is whether it shall be
paid before the property is taken
or damaged. I like the 19th section.
Article I in the Ohio Constitution,
which reads as follows:
Private property shall ever be held
inviolate, but subservient to the pub
lic welfare. When taken in time of
war or other public exigency, imper
atively requiring its immediate seiz
ure, or for the purpose of making
or repairing roads, which shall be
open to the public without charge, a
compensation shall be made to the
owner in money, and in all other
cases where private property shall be
taken for public use, a compensation
therefor shall be first made in
money; and such compensation shall
be assessed by a jury without deduc
tion for benefits to any property of
the owner.
Now I desire to see this amend
ment introduced, so that the posses
sion shall be first paid or first secur
ed; and then that it be secured in
money and not in benefits.
Mr. LAKE. It seems to me that the
entire section will have to be changed
in order that great mischief may not
accrue. The section under consider-

EMINENT DOMAIN— COMPENSATION

347

Thursday!

LAKE— THOMAS— MASON

[July 13

ation, with the amendment proposed
by the gentleman from Otoe, without
any other change, would require com
pensation in all cases before private
property could be taken. Now, there
are many cases that could be con
ceived of where private property
ought to be taken. For instance, in
the making of a highway, or the
building of a bridge. For the pur-
-pose of securing these repairs before
the money can be raised by taxation
or some other mode — in all such
cases public officers ought to have the
right to take private property for
such uses. If a just compensation in
money, in these cases, is secured for
the property, that ought to be suf
ficient. The entire section ought to
be modified so that private property
can be taken by public officers in cer
tain cases without compensation first
being made. I see no objection to
the clause being amended so that in
certain cases this can be done. In
all cases where it can be done —
where the owner can be ascertained,
etc., I am in favor of compensation
being first made where it can be
done without great embarrassment to
the public. I am opposed to modifying
this section with the understanding
that no other amendment is to be
made and that it is to be applied to
all cases. In this new country, it fre
quently occurs that roads are to be
opened for public travel, before the
money can be raised by the ordinary
modes of taxation. Now where the en
tire public faith is pledged for the
payment of a just compensation, is it
a great hardship for the owner of
property taken to wait until he is paid
in the way laid down by law? I can

see many cases where this would
work great injury to the public, with
no great advantage to the owner of
the property. I am in favor of this
principle being applied to Railroad
companies, where the land of individ
uals is taken for railroad purposes.
Individuals compose the company and
they should be prepared to pay
money in such cases. Where the
property of individuals is taken for
their benefit, I believe that the prin
ciple should be applied, but where
the public is under the necessity of
using private property — it may be
stone for bridges, abutments, etc.,
timber and the like it may take pri
vate property without first paying
therefor. Mr. THOMAS. Mr. Chairman, I
agree entirely with the gentleman
who has just spoken. It did not oc
cur to me at the time I drew up the
amendment. Where the public faith
is pledged, I think it would be all
that is necessary. I propose to substi
tute the corresponding section in the
Ohio Constitution for our section.
Mr. MASON. Mr. Chairman, I
move to strike out the section now
under consideration and substitute
section 19 in the Bill of Rights of the
Ohio Constitution, as follows:
"Private property shall ever be
held inviolate, but subservient to the
public welfare. When taken in time of
war or other public exigency, impera
tively requiring its immediate seiz
ure, or for the purpose of making or
repairing roads, which shall be open
to the public without charge, a com
pensation shall be made to the owner,
in money and in all other cases where
private property shall be taken for
public use a compensation therefor
shall be first made in money, or first
secured by a deposit of money; and

348

EMINENT DOMAIN— COMPENSATION

Thursday]

WAKELEY— ESTABROOK

[July 13

such compensation shall be assessed
by a jury, without deduction for
benefit to any property of the owner."
Mr. WAKELEY. Mr. Chairman,
while I don't disagree materially with
the gentleman with regard to the
general structure of this section, I
don't like the Ohio provision just
read. It seems to me it is long and
cumbersome. I think' it is defective
too, for instance, it does not include
the word "damaged." Their Constitu
tion provided simply, that private
property shall not be taken for pub
lic use without just compensation.
That is the provision of the section
just read, then again the Ohio section
does not include the last provision
of this section, to-wit:
"The fee of land taken for railroad
tracks, without consent of the owners
thereof, shall remain in such owners
subject to the use for which it was
taken." I regard this a very valuable pro
vision and it is not found in the cor
responding section of the Ohio Bill of
Rights. It seems to me this section
should be re-committed to the Com
mittee on Bill of Rights. I will make
that motion, at the proper time.
Mr. MASON. Mr. Chairman, I with
draw my motion.
Mr. ESTABROOK. I think the
proper course is this; that this
section (13) be reported to the house
with the recommendation that it be
referred to the Committee on Bill of
Rights, and make a motion to that ef
fect. The motion was agreed to.
The CHAIRMAN. The Secretary
will read section fourteen.
The Secretary reads as follows:
|f 14. No ex post facto law, or law

impairing the obligation of contracts,
or making any irrevocable grant of
special privileges or immunities, shall
be passed."
Mr. SCOFIELD. Mr. Chairman
I move the section be adopted.
Motion agreed to.
The CHAIRMAN. The Secretary
will read section 15.
The Secretary read as follows:
"|f 15. The military shall be in
strict subordination to the civil pow
er." The CHAIRMAN. No objections
being heard, the section will be con
sidered adopted. The Secretary will
read section 16.
The Secretary read as follows:
|f 16. No soldier shall in time of
peace be quartered in any house with
out the consent of the owner; nor in
time of war except in the manner pre
scribed by law.
The CHAIRMAN. No objections be
ing heard the section will be consid
ered adopted.
The Secretary will read section 17.
The Secretary read as follows:
|f 17. The people have a right to as
semble in a peaceable manner to con
sult for the common good,,. to make
known their opinions to their repre
sentatives, and to apply for redress
of grievances:
The CHAIRMAN. No objections be
ing heard, the section will be consid
ered adopted.
The Secretary will read section 18.
The Secretary read as follows:
If 18. All elections shall be free
and there shall be no hindrance or
impediment to the right of a quali
fied voter to exercise his franchise.
Mr. HASCALL. Mr. Chairman, I
move to amend by adding "but laws
may be made to ascertain by proper
proofs the citizens who are entitled

REGISTRATION OF VOTERS

349

Thursday]

WAKELEY— HASCALL— LAKE

[July 13

to the right of suffrage."
Mr. PHILPOTT. Mr. Chairman, I
wish to amend the section by substi-:
tuting the words "the elective" for
the word "his."
The amendment of the gentleman
from Lancaster (Mr. Philpott) was
agreed to.
Mr. ESTABROOK. Mr. Chairman, I
would like to inquire what is meant
by .the words "all elections shall be
free." Mr. WAKELEY. I understand
that to mean that no voter shall be
intimidated, but shall be allowed to
exercise free choice as to who he
votes for.
Mr. LAKE. I suppose it means that
there shall be no charge made, but
a man shall be allowed to vote with
out it costing him anything.
Mr. WAKELEY. I would inquire of
my colleague (Mr. Hascall.) what he
means is the necessity for offering
such a qualification to the section.
Does he conceive that the registra
tion law is not complete. It seems to
me that the law as it is is just right,
and I cannot see any necessity for ad
ding to it.
Mr. HASCALL. Mr. Chairman, in
answer to the gentleman I will state
that I am satisfied that the gentle
man himself would say, if this sec
tion was passed as it is, that no reg
istration could be had. One reason is
this that in another bill we will deter
mine who are to exercise this elective
franchise. I have heard men say that
the registration laws are hindrances
to the free exercise of this right,
and if this section was placed in the
Constitution as the supreme law of
the land no registration could be

made. I am in favor of a proper reg
istration law, and this amendment
leaves it to the Legislature to deter
mine. It is necessary that this
should be put in here that they may
be taken together.
Mr. LAKE. Mr. Chairman, I am as
heartily in favor of wholesome regis
tration laws as any individual of this
Convention can possibly be. I be
lieve with my colleague that a better
registration law could be enacted
than the one we have that would
not permit a man to be cheated out
of his vote, but I do not agree with
him that this section would preclude
the passage of wholesome registra
tion laws. It says that the elective
franchise shall be free and without
hindrance, but certainly the Legisla
ture would have the right to deter
mine who i are qualified voters, and
they would have the right to adopt
any reasonable mode to ascertain
that, and lay down some rules by
which the officers of the election shall
be governed. You might as well say
that a man should not be challenged
on election day, or sworn to his
qualifications to vote.
Mr. HASCALL. I have concluded it
is better to put this in as an independ-
ant section and not encumber the Bill
of Rights with it, so I will withdraw
my amendment,
The CHAIRMAN. The question is
on the adoption of section as amend
ed. The eighteenth section was adopt
ed. The Secretary read section nine
teen as follows:
|f 19. Treason against the state
shall consist only in levying war

350

BILL OF RIGHTS

Thursday]

MYERS— STRICKLAND

[July 13

against the state, or in adhering to
its enemies, giving them aid and com
fort. No person shall be . convicted
of treason, unless on the testimony of
two witnesses to the same overt act,
or on confession in open court.
The section was adopted.
The Secretary read the next section
as follows:
|f 20. The writ of error shall be a
writ of right in all cases of felony,
and in all capital cases shall operate
as a supersedeas to stay the execu
tion of the sentence of death until
the further order of the supreme
court in the premises.
The section was adopted.
The Secretary read the next sec
tion as follows:
|f 21. The privilege of the debtor to
enjoy the necessary comforts of life
shall be recognized by wholesome
laws, exempting a reasonable amount
of property from seizure or sale for
the payment of any debts or liability.
The section was adopted.
The Secretary read the next sec
tion as follows:
|f 22. Aliens, who are, or may here
after become bona fide residents of
this state, shall enjoy the same rights
in respect to the possession, enjoy
ment and inheritance of property as
native born citizens.
The section was adopted.
The Secretary read the next sec
tion as follows:
|f 2 3. Every person ought to find a
certain remedy in the laws for all in
juries and wrongs which he may re
ceive in his person, property or repu
tation; he ought to obtain, by law,
right and justice freely and without
being obliged to purchase it, com
pletely and without denial, promptly
and without delay.
The section was adopted.
Mr. MYERS. Mr. Chairman, I move
to strike the words "ought to" and
insert "shall."

Mr. MANDERSON. Mr. Chairman,
I called the attention of the chairman
of the Committee on Bill of Rights to
the provision of the Ohio section; I
understand it meets his approval.
"All courts shall be open and every
person for an injury done him in
his land, goods, person or reputation,
shall have remedy by court of law,
and justice administered without de
nial or delay."
I move that be substituted for sec
tion twenty three.
Mr. MYERS. I withdraw my
amendment. The substitute was agreed to.
The Secretary read the next sec
tion as follows:
|f 24. A frequent recurrence to the
fundamental principles of civil gov
ernment is absolutely necessary to
preserve the blessings of liberty.
The section was adopted.
The Secretary read the next sec
tion as follows:
|f 25. The powers of the govern
ment of this state are divided into
three distinct departments, the legis
lative, executive and judicial; and no
person, or, collection of persons, be
ing one of these departments, shall
exercise any power properly belong
ing to either of the others, except as
hereinbefore expressly directed or
permitted.

The section was adopted.
The Secretary read the next sec
tion as follows:
2 6. This enumeration of rights
shall not be construed to impair or
deny others retained by the people,
and all powers not herein delegated
remain with the people.
Mr. STRICKLAND. I would ask
that we now consider the preamble.

PREAMBLE— BILL OF RIGHTS

351

Friday]

STRICKLAND— HASCALL— GRAY

[July 14

The Secretary read the preamble
as follows:
The Constitution of the State of Ne-
raska.
PREAMBLE.
We, the people of the state of Ne
braska — grateful to Almighty God
for the civil, political and religious
liberty which He hath so long permit
ted us to enjoy, and looking to him
for a blessing upon our endeavors to
secure and transmit the same unim
paired to succeeding generations — in
order to form a more perfect govern
ment, establish justice, insure domes
tic tranquility, provide for the com
mon defense, promote the general
welfare, and secure the blessings of
liberty to ourselves and posterity, do
ordain and establish this constitution
for the state of Nebraska.
Mr. STRICKLAND. I move its
adoption. The motion was agreed to.
Mr. MYERS. I move that the
Committee now rise, report progress
and ask leave to sit again.
Mr. HASCALL. I move to amend
by inserting "and recommend the
adoption of the amendments, and
that section thirteen be re-referred to
the Committee on Bill of Rights."
Mr. MYERS. I accept the amend
ment. The motion was agreed to.
Mr. GRIGGS. Mr. President, the
Committee has had under considera
tion the Article entitled "Bill of
Rights" and have directed me to re
port progress and ask leave to sit
again, and recommend that section
thirteen of the report be referred to
the Committee for further considera
tion. The report was adopted NEM.
CON.

Adjournment.
Mr. CASSELL. I move to adjourn.
The motion was agreed to, and the
Convention (at five o'clock and
thirty minutes) adjourned.

NINETEENTH DAY.
Friday, July 14, 1871.
The Convention met at nine
o'clock a. m. and was called to order
by the President. Prayer.
Prayer was offered by the Rev. Mr.
Merrill of Nebraska City, as follows:
Our Heavenly Father, Great Ruler
of nations, we ask thy blessing upon
this assembled body to-day. Guide
them in all their deliberations that
the great ends of justice and right
may be answered, in all that they
do. May Thy blessing attend them
and Thy smile rest upon them, for
Christ's sake. Amen.
Reading of the Journal.
The Journal of the preceding day
was read by the Secretary and ap
proved. Mr. GRAY. At the request of the
Chairman of the Committee on Inter
nal Improvements, I beg leave to
make the following report.
Mr. President:
Your Committee on Internal Im
provements beg leave to submit the
following report and ask that the
same be made a part of the Legisla
tive Article to-wit:
In Section 48 of said Article add
the following: "and shall enact such
laws as may be necessary to facilitate
the construction of Bridges." And to
Section 49 of said Article add the
following: "And may provide for
draining wet or overflowed lands, giv
ing the County Commissioners of any
county authority to construct ditches

352

SCHOOL FUND— WOMAN SUFFRAGE

Friday]

LAKE— MASON— CURTIS

I July U

and drains for that purpose, and levy
and collect taxes upon the lands to be
benefited by such drainage to pay
the expense of constructing and
keeping in repair such ditches and
drains. JACOB SHAFF, Chairman.
The PRESIDENT. The question is
that the rules be suspended and that
this report be referred to the Com
mittee of the Whole to be considered
in connection with the Legislative
Article. The motion was agreed to.
Judiciary.
Mr. LAKE. Mr. President. The
Committee on Judiciary and Judicial
Districts beg leave to report the fol
lowing Article, and recommend its
adoption. (Report Missing Here.)
The PRESIDENT. Unless some
gentleman objects it will be read the
first time and second time by its
title, 150 copies ordered printed, and
referred to the Committee of the
Whole. No objection being made it was so
ordered. School Fund.
Mr. MASON' Mr. President. I am
instructed by the Committee on Ju
diciary to report the following, in
respect to the inquiry referred to
them by the Committee on Schools:
Your Committee are of the opin
ion that the State is bound to restore
to the school fund all losses which
that fund has, or shall hereafter sus
tain while the present Constitution
remains in force.
The State in its corporate capacity
receives the school monies arising
from the school lands and is made

a trustee for that fund and charged
with the duty of preserving the same
inviolate and undiminished.
The State undertakes to adminis
ter the trust confided to it by the
Constitution and in the manner re
quired by that instrument.
The Constitution requires that the
principal of all funds, arising from
the sale or other disposition of lands
or other property granted or entrust
ed to the State for educational and
religious purposes, shall forever be
preserved inviolate and undiminish
ed. The funds named in the resolu
tion were entrusted to the State for
school purposes and the State is
bound to preserve the same inviolate
and undiminished fcy the express
language of the Constitution. If the
State in the administration of this
trust employs imp ovident or cor
rupt agent, or officers and the fund
is lost or diminished, the State
ought to make good such loss or
diminution. O. P. MASON,
By Instruction of Committee.
Resolution.
Mr. CURTIS. Mr. President, I de
sire to offer a resolution:
The Secretary read the resolution
as follows:
. That the question of female suf
frage in this state shall be decided by
the females alone; and the right of
females to vote in this state shall be
submitted to them as a separate pro
position by the county commissioners
in each county in the state by ap
pointing registrars in each precinct
and ward whose duty it shall be to
Visit each family in their precinct or
ward, and register the name and vote
of each female member thereof on
the proposition of female suffrage,
and that each female shall have the
privilege of registering and voting
under the same restrictions as the
male voters and said registrars shall
take and make returns of said vote
under oath, on or before the last day
of November next to the county

WOMAN SUFFRAGE

353

Friday]

PHILPOTT— TOWLE— MASON

[July 14

clerks of their counties and said
county clerks shall make returns of
said votes to the Secretary of State
at the time and in the manner of
making the returns of the vote
on the Constitution. If it shall ap
pear that a majority of the female
voters have voted for female suffrage
the proposition shall be a portion of
the Constitution of this State.
Mr. PHILPOTT. Mr. President: I
move that the resolution be referred
to a special committee of which Mr.
Estabrook may be chairman.
Mr. GRIGGS. Mr. President: I
move to amend by referring to the
Standing Committee on Rights of
Suffrage. Mr. WAKELEY. And I move to
amend by referring it to the Com
mittee of the Whole.
Mr. TOWLE. I move that further
consideration of the resolution be in
definitely postponed.
The ayes and nays were demand
ed. Mr. MYERS. I believe I understand
this for myself, that it is to be a test
vote. The PRESIDENT. I do not know
what it is to be. It is a vote. The
question is upon the indefinite post
ponement. The Secretary again read the reso
lution. Mr. McCANN. Mr. President: I
move a call of the house.
The Secretary called the roll.
Mr. McCANN. I move that the sar-
geant-at-arms be sent for Messrs.
Estabrook and Robinson:
Mr. TOWLE. I move that the fur
ther business under call of the House
he dispensed with.
The House divided, when there ap-
23

peared 23 in the affirmative and 2Q
against. So the motion was agreed to.
The PRESIDENT. The further pro
ceedings under call of the House are
dispensed with.
Mr. MASON. Mr. President: By
leave of the Convention, I desire to
make a few remarks. I Sincerely hope
the Convention will not indefinitely
postpone this question; for I believe
in giving every gentleman a chance
to be heard upon so important a ques
tion as this. I hope it may be re
ferred, and the resolution fairly con
sidered. Mr. TOWLE. In answer to the gen
tleman —
The gentleman was called to order,
but was subsequently granted leav*
to speak.
Mr. TOWLE. In answer to the gen
tleman from Otoe (Mr. Mason) I
would state that we have on our table
now the report of the Committee,
which will bring this whole subject
matter up; and it is entirely im
proper to consider a resolution upon
a subject already involved in the re
port of the Committee.
Mr. McCANN. Mr. President: I re
gret very much that the opponents of
this question cannot afford debate —
The gentleman was called to order
by the Convention.
The PRESIDENT. This is not the
time for debate, but if the House
grant leave to the gentleman he will
be allowed to proceed, as will any
other gentleman who desires to say
a few words. ("Leave." "Leave.")
Mr. McCANN. Mr. President: I

354

WOMAN SUFFRAGE

Friday]

WAKELEY

I July 14

do not propose to debate. I merely
wish to say that the motion to refer
this to a committee is certainly the
most honorable way to get rid of it.
I hope the motion to indefinitely
postpone will not prevail for that very
reason. I wish the question to be
carefully considered, and all others
which affect the right of suffrage.
The PRESIDENT. The question is
upon the indefinite postponement.
Mr. WAKELEY. By leave of the
Convention, I wish to say a few
words. ("Leave." "Leave.")
I believe it proper to raise the point
of order that a motion to indefinitely
postpone is debatable. Mr. Presi
dent: thanking the Convention for
leave to say a few words, I do not
propose, from this incidental mo
tion to discuss the question of female
suffrage. There is pending in some
form, before the Convention, a propo
sition to allow the women of this
State to vote at the coming election,
when the Constitution shall be sub
mitted, upon this question of extend
ing the elective franchise to females.
This is but a modification of the same
proposition. This is a proposition to
take the sense or judgment of the
women of this State in respect to ex
tending the elective franchise to
them. And, sir, in my judgment,
it is a much better and more appro
priate method of ascertaining the
wishes of the women of this State,
than the proposition requiring them
to go to the polls and vote upon the
subject. In submitting this question
to the women of this State in a man
ner which requires them to go to the

polls and vote for or against the pro
position), you do but require of those-
who are opposed to exercising the
elective franchise to do precisely
what they are principally against do
ing — going to the polls in a public
manner and depositing their ballot.
Now, sir, what fairness is there to
say to the women of Nebraska, "We
submit to your judgment whether you
shall have the elective franchise or
not." And in order to get the voice
of those who are opposed to voting,
to go to the polls and exercising the
elective franchise, you require them
to do the thing they do not believe
in doing. I am for one sincerely de
sirous of ascertaining what the
women of the State of Nebraska de
sire in respect to exercising the elec
tive franchise. I speak only for my
self. I have long been committed to
this principle — that when even the
women of this land, as a general
thing, whenever a majority of the in
telligent women of this country de
sire to exercise the elective franchise,
are wiling to take upon themselves
that responsibility, and will say so,
so far as I am concerned, sir, they
shall have it. I will never stand
with the ballot in my hand and say
to one half of the human race who
desire to exercise that right, that they
shall not have it. I may not consider
it a wise thing for them to do; I
may not vote — and will not — to give
the elective franchise to the women
of this State, but sir I am desirous
to give them a right to express them
selves on this subject. In my judg
ment, the plan proposed is a better
one than to require them to go to the
polls and vote against the exercise of

WOMAN SUFFRAGE

355

Friday]

CURTIS— TOWLE

[July. U

this franchise. I think this is an ab
surdity in itself. If sir, the sense
of the women of Nebraska can be tak
en in a way which will not offend
their sense of delicacy and propriety,
I will give every influence here to
afford them the opportunity. Now
sir, I hope this resolution will not be
indefinitely postponed. I hope it will
go to the Committee of the Whole.
When this question of female suffrage
comes up in the Convention, as it
will come up, and give it a 'fair and
impartial consideration.
Mr. CURTIS. Mr- President: I
would like to have a word to say, if
I may be allowed.
("Leave." "Leave.")
I ask that this resolution be re
ferred' to- a proper Committee, leav
ing it to the Convention what Com
mittee that shall be.
The PRESIDENT. The question is
upon the indefinite postponement.
Mr. TOWLE. Mr. President: I
withdraw my motion to postpone
with the consent of my second.
The PRESIDENT. The question
now is upon the motion to refer the
resolution —
Mr. MASON. Mr. President: I am
requested by the mover of this resolu
tion to say that he prefers to have
it referred to the committee of the
Whole house.
Mr. TOWLE. Mr. President: I re
new my motion to indefinitely post
pone the resolution.
The PRESIDENT. The question is
upon the motion to indifinitely post
pone the resolution.
The yeas and nays were ordered,
and being taken, resulted — yeas 20,

nays, 2 7 — as follows:

YEAS — 20.

AbboU,

Newsom,

Boyd,

Parchen,

Campbell,

Scofield,

Eaton, .

Sprague,

Gibbs,

Stevenson,

Granger,

Thummel,

Gray,

Towle,

Griggs,

Vifquain,

Hinman,

Weaver,

Myers,

NAYS — 27.

Ballard,

Maxwell,

Cassell,

Moore,

Curtis,

Neligh,

Estabrook,

Philpott,

Hascall,

Price,

Kenaston,

Reynolds,

Kilburn,

Shaft.

Kirkpatrick

Spiece,

Lake,

Stewart,

Lyon,

Thomas,

McCann,

Tisdel,

Majors,

Wakeley,

Mason,

Wilson,

Manderson,

ABSENT OR NOT VOTING.
Grenell, Woolworth,
Parker, Mr. President,
Robinson, So the motion of Mr. Towle to in
definitely postpone the resolution of
Mr. Curtis, was not agreed to.
The PRESIDENT. The question
now is upon the motion to refer to
the Committee on Rights of Suffrage.
The Secretary will read the resolu
tion. The Secretary read the resolution
again. The Convention divided and the
motion was agreed to.
Mr. CASSELL. Mr. Chairman: I
desire to offer two resolutions.
The Secretary reads the resolu
tions as follows:
356

CONVICTS— ELIGIBILITY FOR OFFICE

Friday]

CASSELL— PARCHEN— THOMAS

[July 14

RESOLVED: That convicts shall
not be employed on work out-side the
prison walls.
RESOLVED: That it shall not be
lawful for any members of this Con
vention to be a candidate for any of
the offices created or provided for in
this Convention, for the period of
one year.
Mr. CASSELL. Mr. Chairman: I
desire to have the first of those res
olutions referred to the Committee
on Reformatory Institutions.
The PRESIDENT. It will be so
referred unless some gentleman ob
jects. Mr. MASON. Mr. President: I
move to refer the opinion asked for
by the Committee on Education, etc.,
be referred to that Committee.
The PRESIDENT. It will be so re
ferred unless some gentleman ob
jects. Mr. PARCHEN. Mr. President: I
wish to offer a resolution.
The Secretary read the resolution
as follows:
RESOLVED: That the Constitution
of Nebraska be so construed as to
strike out the word "male" and insert
"female" in the Article on Suffrage.
Mr. PARCHEN. Mr. President: I
move to refer the resolution to a
special committee consisting of
George Francis Train and Victoria
Woodhull. Mr. MANDERSON. Mr. President:
I move that the gentleman who
moves the reference be added to the
•ommittee. Mr. ESTABROOK. As chairman
of course.
Mr. MASON. Mr. President: I rise
to a point of order, I suppose it is
not in order for this Convention to
refer a motion improperly.

The PRESIDENT. I think it is out
of order.
Mr. MYERS. I move that the Presi
dent declare the whole thing out of
order. I object to these proceedings.
The PRESIDENT. I think the
objections of the gentleman are well
taken. Mr. HASCALL. Mr. President: I
move that it be indefinitely post
poned!. Mr. PARCHEN. Mr, President: I
ask leave to withdraw the resolution.
The PRESIDENT. No objection
being made leave is granted and the
resolution is withdrawn.
Section 13 of Bill of Rights.
Mr. THOMAS. Mr. President: If
there is no objection I desire to offer
a report from one of the Committees.
By request of the Chairman I will
offer the following report:
Your Committee on Bill of Rights
to whom was re-committed Section
13 of the Article entitled the Bill of
Rights would respectfully report the
following Section, the adoption of
which they recommend, in lieu of
Section 13, originally reported.
The Secretary read the report as
follows: Private property shall ever be held
inviolate, but subservient to the pub
lic welfare. When taken or damaged
for public use in time of war or
other exigency imperatively requir
ing its immediate seizure, or for the
purpose of making or repairing roads,
which shall be opened to the public
without charge, a compensation shall
be made to the owner in money and
in all other cases a compensation
shall be first made in money, or first
secured by a deposit of money. Such
compensation shall in every case be
without deduction for the benefits to
any property owner, and when not

EMINENT DOMAIN

357

Friday]

THOMAS— MANDERSON

[July 14

made by the State, shall be assessed
by a jury in such manner as shall be
prescribed by law. The fee of land
taken for railroad tracks without the
consent of the owner thereto, shall
remain in such owner subject to the
use for which it was taken.
Mr. THOMAS. Mr. President: I
move that the report be referred to
the Committee of the Whole.
The motion was agreed to.
Mr. MANDERSON. Mr. President:
I move that the Convention resolve
itself into a Committee of the Whole
on this report from the Committee on
Bill of Rights.
The motion was agreed to.
So the Convention in the Commit
tee of the Whole— Mr. Griggs in the
Chair — proceeded to consider the re-
' port of the Committee on Bill of
Rights. The CHAIRMAN. The question
will be on the adoption of the sub
stitute for section thirteen of the Bill
of Rights.
Mr. THOMAS. Mr. Chairman: I
will state that the first part of this
section is almost a literal copy of
that in the Ohio Constitution with
the change that the money shall be
paid first where property is taken for
for other purposes than for public
roads and we have inserted the word
damages. The latter part of the sec
tion is copied literally from a simi
lar section in the Illinois Constitu
tion. I believe as it is now drawn it
embraces the opinions expressed by
the majority of the Convention.
Mr. MANDERSON. Mr. Chair
man, I don't know that I am satis
fied with the report of the Committee.
There is one thing that should be
considered in this report. While

practicing in the State of Ohio, I had
occasion to look into the Constitution
of Ohio and examine the section re
ferred to, where the question of dam-.
ages are left out. Now this section
submitted here says "taken or dam
aged." Let us inquire what that
word "damaged" means. Persons or
corporations taking property under
the Ohio section are compelled to
make oath that the damages shall be
paid in money without any deduction
for benefits. For instance, let us
suppose that 100 feet is taken off of a
man's property for railroad purposes,
no benefits can be deducted from
damages to the property and taken,
no matter if it increases double what
it was before it was taken, but the
decision in the courts of Ohio was
that in considering the damages of
the balance of the property, not tak
en, the benefits may be deducted from
it. Now suppose that a party owns a
town lot 200 feet square, on one corn
er of that lot he has a valuable build
ing, a private corporation in the ex
ercise of that domain delegated to it
proposes to take a corner off his lot,
and takes the corner upon which the
building stands, it goes through his
valuable building. Now under the
law as it stands in Ohio, from the
amount of compensation that should
be paid to him for the taking of that
corner, no benefits would be deduct
ed, but suppose he had said, you have
not only taken from me my corner,
but damaged the balance of my lot,
that is to say, you have rendered this
building uninhabitable, we shall have
to tear it down and rebuild in some
other part of the lot; well and good,

358

DAMAGES— COMPENSATION

Friday]

MASON

[July 14

but the balance of your lot is greatly
increased in value; true it is dam
aged by the destruction of this build
ing but the ground left you is in
creased ten fold in value by the lo
cation of this railway. It seems to
me it would be unfair to pay him
for the land taken, without deducting
for benefits he received. That has
been the rule in Ohio under their
law. If we adopt this section as it
reads it would not be the rule here.
A jury would first have to pay com
pensation for the corner taken, his
building might be damaged to the
extent of a thousand dollars, but his
lot left might be benefited ten
thousand dollars, yet as against that
incidental damage there could be no
offset of benefits if we adopt the sec
tion as reported. I would like to
hear from the Chairman of the Com
mittee on Bill of Rights on that ques
tion. Mr. MASON. It was the purpose
and design of the committee to avoid
that very thing. The railroad com
pany damages a man's property with
out taking it, ought not the owner to
have his damages the same as though
they did? Under what rule should he
withold his damage because his prop
erty was not taken and perverted,
it mav be a? effectually destroyed as
though it was completely taken.
Gentlemen of the committee consider
the very case put by the gentleman
from Douglas (Mr. Manderson). A
railroad company comes through a
valuable building four hundred feet
long and may take two hundred feet
off the land and ruin the balance,
ought he not to have damages for
the ruin just as honestly and fairly

as damages for the property taken.
Why, the committee did consider the
fact of that particular damage, and
it was put there with the purpose and
design to give to the man whose prop
erty is taken an honest compensation.
Let us consider this abstract question,
if Mr. A damages the property of B,
he finds a secure and perfect remedy
under the law, and Mr. A must pay
to B the full amount of damages
done. Yet if a railroad corporation
commits this damage, the gentleman
from Douglas would place over and
above the individual man, a man that
had a soul to save, or a heaven to
attain, eyes to see and ears to hear.
He would put him below the corpora
tion that has neither and place them
above the individual. Your commit
tee would put both on a level so far
as the question of compensation and
damages are concerned, in other
words, gentlemen of the Convention,
If I damage the property of a citizen,
they may offset supposed or imagin
ary benefits against the damage they
commit. The individual cannot do
it, and yet it is proposed to let all cor
porations do so. Now, Mr. Chair
man, I for one have carefully consid
ered the whole scope and tenor of
this phraseology and it does just
what the gentleman from Douglas
claims it does, holds the corporation
which takes property for public use,
to make actual compensation in
money for the injury which they do-
without offset against that damage,
any supposed benefits which they
confer upon the individual. Now let
us see whether this is just or not, and
eminently practical in the considera
tion of this proposition. Here

DAMAGES— COMPENSATION

359

Friday]

MASON

[July 14

comes a railroad sweeping by the
border of this town, it takes a hun
dred feet off a lot of any gentleman
of this Convention and damages and
ruins the balance. Another gentle
man of the Convention, if you please
myself, owns a lot adjoining which it
just misses. It is just as much bene
fit to me as to my neighbor whose lot
¦is ruined, and yet you maKe th© man
whose lot is ruined pay for the bene
fits he receives and me none at all.
Is this honest? If it is, it is a school
of honesty in which I took no lessons
and which I hope I may ever be with
held from taking lessons. ' The object
of this proposed amendment was to
give to the private citizen full, per
fect and complete compensation, not
only for the property taken but for
the damage done and the injury sus
tained to the balance of his prop
erty. Let me put another case. A
member of this Convention who owns
a farm in the country has a valuable
stream, which to him is actually
worth for practical and stock pur
poses more than the land itself, if he
owns the land. A railroad comes
along and runs between the spring
and his house, cutting him off from
water, the gentleman says he ought
to offset the benefits which the rail
road confers upon him as against the
damages done to him by cutting him
off from water. Is that honest? Is
that what the Convention desires?
Ought he not to have the actual dam
age done to the balance of his estate,
independent of any supposed benefit?
I conceive it does just what he says
it does, and I for one insist that it
is but the rule of honesty between
man and man. Suppose I commit a

trespass on my neighbor's land, and
confer upon him a great benefit
thereby. He sues me, what court
would enunciate the rule that I can
offset the benefits done him against
the actual damages? It never was
conceived until it was conceived in
the interest of consolidated and over
riding capital, and the rule finds no
just support in sound reason or logic.
Besides, gentlemen, this is the rule
that was established in the Constitu
tional Convention of Illinois and they
there have had considerable experi
ence in these matters, and it may be
that the word was inserted for this
very purpose, and I desire to call the
attention of the Convention to the
Constitution of Illinois, first to the
Article as found in the Bill of Rights
in Ohio; second the Article as found
in the Constitution of Illinois. Sec
tion thirteen reads "Private property
shall not be taken for damage for
public use, without just compensa
tion." Now let us turn to the section
in Ohio "Private property shall be
held inviolate, but subservient to the
public welfare when taken for public
use." The word "damage" being
omitted in the Constitution of Ohio.
If this Convention desires to offset
supposed benefits against actual dam
age done, you should strike out that
word damage. If you desire to con
tinue the unjust rule that has pre
vailed in Ohio, against — in my opin
ion — every sense of equity and right
and regard for private property then
the gentleman should receive the ap
probation of this convention. If on
the contrary you desire to give to the
railroad company and to the State
the same rule of law which you

360

DAMAGES— COMPENSATION

Friday]

MASON

[July 14

[hold] between individual man and
man, then the Article should be adopt
ed as it now is. Now which is right?
Let me not be misunderstood, I
would not assail a corporation or
take one dollar from it, I would give
it the same law to govern it that I
gave to the individual man, but I
would not give a single cent beyond
but put them both on the same level.
This is what your Committee had in
view, and to attain this end, this
word damage was specially inserted.
Besides it is true, that while they
were paid under the Ohio rule for
the property taken, yet for the dam
age done to the balance they may off
set benefits. Where is the justice in
this? Why, if an individual came
along to buy a strip of land one hun
dred feet wide through the farm of
any member of the Convention, be
fore you sold it you would consider
the damage done to the balance of
the estate, how much would it be
worth? When .the railroad takes the
land of the individual, when they
take it by the supreme law right of
eminent domain, ought not the indi
vidual have the same rule of damages
that he would if he sold by volun
tary consent? Ought he not to have
the actual damages which are done
to the balance of the estate as well
as the actual cash value of the land
taken? This is my view of honesty.
This is my rule of justice between
man and man. -This is the rule that
your Committee saw fit to adopt. And
I believe, in respect to this rule,
there was not one dissenting, voice.
And I desire to meet this question
squarely, and that the Convention
may understand. If you strike out

that word "damage," then the rule,
as laid down by the gentleman from
Douglas, may prevail — that you de
duct the benefits made to the re
mainder of the estate, the benefits
made to the individual by the con
struction of the road. If you leave it
standing, then the actual damages
done to the remainder of the estate
ih consideration of the benefits; and
the Convention is to say which is
the right rule to adopt. And I ought
to say, on behalf of the Committee
that we did amply consider that the
word "damage" was omitted from
the article in the Ohio Constitution.
We turned to the Illinois Constitu
tion; and, as an evidence of progress
we found the word "damage" was in
serted. What for? To meet the
very evil which had existed in Ohio
and other states; and we inserted
the words "taken" and "damage"
the same as in the Illinois Constitu
tion. And I sincerely hope the Con
vention may concur in the views
entertained by the Committee, giv
ing to the owner of the property the
actual cash value of the land taken,
together with the actual damage to
the remainder of the estate which is
not taken, and not allowing the
railroad company to set off any sup
posed benefits against the damages
supposed to be done to the remainder
of the estate. I think, as the article
now reads, you leave the railroad
company and the individual whose
property is taken in precisely the
same situation that two individual
men would be after the property was
taken, holding the company to pay
the value of the property taken and
the damage done to the remainder

DAMAGES— COMPENSATION

361

Friday]

MASON

[July 14

of the property without deducting
any benefits. And one case more. A
has an eighty acre tract of land. The
railroad strikes it in the north east
eorner and goes out at the opposite
corner, cutting it into two parts,
leaving a right angle triangle of each
piece. They take, if you please, 160
rods through the tract, or a little
more, leaving a piece on each side.
The actual loss the owner sustains is
first the value of the land taken;
second, the damage done to the re
maining portion of the estate. Now,
the gentleman from Douglas says he
would give to the land owner the
actual value of the land taken with
out deducting anything for benefits,
but when he comes to consider the
damage done to the remainder he
would deduct the benefits and apply
them against damage to the remain
der. Is that honest? According to
my rule of right that is no better
than legal highway robbery. If a
man builds a mill and makes a
market for my wheat, he benefits me.
Suppose the dam he constructs over
flows, and damages my property,
whoever heard of deducting the
"benefits I derive from the erection
of the mill against the damages I
sustain from the overflow! And yet
it is to be done in behalf of a cor
poration and not in the behalf of an
individual. And, on the same pro
position of law, we regard the mill
as we do the railroad; and it is not
upon any well grounded principle. of
exact justice as between man and
man, that this amendment is sought
to be obtained, and it was to avoid
this construction which courts have
been compelled to put upon the ar

ticle in the Ohio Constitution that
this word "damage" was inserted. I
might stand here and illustrate the
practical workings of this thing, if
you strike out the word "damage,"
still further. But enough, it seems
to me, has been said to recommend
this to the sense and justice of the
Convention. Why, if a railroad dam
ages your property without taking an
inch of it, and it may do it, ought it
not to pay the damage just as much
as if it took that property? And yet
in one case you deduct the benefits,
and in another you do not. Let us
hear in what book the gentleman
learned his doctrine that in the one
case the compensation should be
made, and not in the other. It cer
tainly was not by any rule which
commends itself to. my judgment.
And it was I conceive a matter
which troubled the committee some
what to frame this article, so as to
cover the one case and the other
alike. We did frame it so that the
legal gentlemen on that committee
saw that it covered both branches of
the case. We put it in there because
we meant it should be there. It was
no accident. It was pure design,
and designed to meet equal and exact
justice between the citizen, the indi
vidual property holder, the State,
the corporation and the counties;
and we left them standing side by
side. And the same rule applied to
the one and the other. One other
illustration: Suppose I am living on
the border, and, by the exigency of
the times, the Indians make a raid
upon me, and the colonel is compel
led to seize my property to protect
n:e ; and my horses are taken, and

362

DAMAGES— COMPENSATION

Friday]

LAKE— MANDERSON

[July 14

also my plow, with the furrow left
unturned, wouid you expect me to
ask damages for the protection I
secured? If you would not apply
this just rule to the State, or your
property, why do it in the other case?
But, gentlemen of the Convention, I
do not deem it necessary to go fur
ther. Much more might be said, but
I think the committee fully under
stand; and I think it must commend
itself to their judgment, and indeed
has. Mr. LAKE. Mr. Chairman, I have
a word or two to say on this question.
I understand the proposition is- to
strike out the word "damage."
Mr. CHAIRMAN. There is no
such proposition offered.
Mr. MANDERSON. I merely wish
to direct the attention of the Com
mittee in this channel. At the prop
er time I propose, not to strike out
the word "damage," but to add to
the section this idea — that from
property merely damaged, not taken
we direct that special benefits might
be deducted.
The CHAIRMAN. The question is
upon the adoption of the section, as
reported by the Committee on the
Bill of Rights.
Mr. MANDERSON. I propose to
insert, where the Article reads "such
compensation shall in every case,"
the words "Such compensation for
property taken shall, in every case,
be without deduction for benefits to
any property of the owner."
Mr. LAKE. Mr. Chairman, I be
lieve every member of this Commit
tee is anxious to attain one end, and
the same end in this Constitutional
provision now under consideration —

that the owner of the property taken
by rail road corporations, or other
wise, shall receive just compensa
tion for his property, and that he
shall be made good for all damages
he shall sustain by reason of his
property being taken for this quasi
public use. It will hardly do to say
that property taken for a railroad
track is taken for private uses. It is
true that railroad companies are
private individuals organized togeth
er for the purpose of securing suf
ficient capital to carry out their pro
jects and enabling them to do what
private individuals cannot do. Now
how is it that the Legislature can
acquire the right to take the'property
of private individuals for the purpose
of constructing, or enabling others to-
construct railroads across the coun
try; how is it that the Legislature
can say that a corporation may
take the property of A, B and C for
the purpose of constructing a rail
road track — how is it that the State
can exercise this right of eminent do
main in favor of corporations? It is
by reason of the quasi public charac
ter of these roads? The stato, or the
United States may take the land be
longing to the people for the purpose
of constructing a military road. The
State can take private property for
the purpose of building roads from
village to village, from town to
town, and from city to city, and it
is by virtue of the same principle
that railroads are constructed
throughout the country; but for this
quasi public character, railroads
would have no right to take the prop
erty of private citizens to construct
railroads. We all agree that it is

DAMAGES— COMPENSATION

363

Friday]

LAKE

[July 14

a great public benefit to any state
to have roads constructed within its
borders, but in this case the same
rule should obtain to-wit: a full
compensation should be given for all
land taken or damaged by reason
thereof. I don't believe any mem
ber of this Convention desires to sub
ject a railroad corporation, simply
because it has means, to any unnec
essary burdens. It would be unjust
to do so. It would be unjust for the
state, or individuals to insist upon
what is unfair against railroad cor
porations. I would throw no unnec
essary impediment in the way of any
enterprise they undertake, I would
not say they should pay A, B or C
more than for damages actually sus
tained. I would give just and full
compensation for damages sustained
thereby, and nothing more. Now
what are these damages? The gen
tleman from Otoe (Mr. Mason) has
stated them to be, first: the value of
the land taken. Upon that there will
be no dispute — the value of the land,
that is the land taken in the first in
stance. Second: the damages to the
land adjoining which was not taken,
but yet the corporation is to be al
lowed nothing as an offset although
through its having taken this land, it
may have increased the value of the
portion not taken, very much. Is
that just? Why it seems to me that
the rule which has been adopted in
this State under our present Consti
tution, is a wise and just one, to-wit:
that in addition to the value of
the land taken you must estimate
how much less valuable is the re
maining portion of the land, of
course not taking into account those

general benefits which accrue to the
whole community, but considering
and giving credit for, any special
benefits which the owner of the land
may have received. I would not have
the railroad company benefited by
reason of any benefits which may ac
crue to the entire community. I
would not have deducted from the
value of the land remaining, such
benefits. I have found, in practice
that in 99 cases out of 100, the value
of the land taken together with the
damages sustained to the land re
maining, are the only questions to be
considered. So that it may be laid
down as a general rule that the dam
age to be considered, is this; in addi
tion to the value of the land actually
taken, you estimate how much less
the remaining portion of the land is
worth. Now if a rail road should be
run diagonally through a man's farm,
it would be first the 100 feet strip
through the land; next the value of
the land remaining, not taking into
consideration those general benefits
which accrue to all. Would not that
be just and right? Should not the
rule be just, and bear on all alike?
I think it should and therefore I am
inclined to favor the proposition of
my colleague (Mr. Manderson). I
think it is an improvement upon the
old Section, but for myself, I would
be in favor of taking Sec. 13 of the
Illinois constitution. It attains all
that is necessary ' to be attained by
this section of our constitution. I
am willing to go further and include
what is desired by the gentleman
from Otoe, (Mr. Mason) that in this
class of cases, money shall first be
deposited for the benefit of the own-

364

DAMAGES— COMPENSATION

Friday]

LAKE

[July 14

er of the land damaged or taken.
When a man is damaged, for in
stance, by building public roads by
reason of excavations or otherwise,
when the land is not taken, it would
be but just as between man and man,
between the State and the individual
and between the corporation and the
individual that if [there were] any
special benefits, not applicable to the
community, it would be but just and
right that these special benefits
should be taken into consideration
by the jury, in estimating the dam
ages, if as I said before, the second
part of the damages is taken into
consideration — the loss on the re
maining portion of the land.
The gentleman from Otoe (Mr.
Mason) has referred -to a case. of
trespass that I say is not in the ques
tion at all. Who ever heard of an in
dividual ' trespasser profiting by his
own wrong, or being permitted to
claim benefits? Can railroad corpor
ations be compared to trespassers
when they go on a man's land under
the special sanction of the law? Is
it just to compare them so? I think
not. If a corporate body see fit in the
opening of a road to go through a
man's farm; or if, in the opening of
a street of a city it is necessary to
take a portion of a private individu
al's property, for the public use, how
is it possible to take into account
the damages in any other way than
by deducting from the damages the
special benefits? That is the rule
laid down under our present Consti
tution and the one under which the
gentleman from Otoe (Mr. Mason) in
his official capacity is expected to act.

I am willing that so far as relates
to the -taking of the property the
rule shall be applied that is contain
ed in the provision under considera
tion and that the damages cannot be
offset by the benefits to the land.
In that I believe we all agree, but
the kernel, the substance of the
difference between the gentleman
and myself is this, that where the
rule only relates to damages, the
benefits not felt by the community,
but by the individual alone, may be
taken into account by the jury in es
timating the damages he sustains.
It seems to me no gentleman can
look at this question and take any
other ground than that he is to allow
justice to both sides, the party dam
aged and the party benefiting, you
cannot reach a just conclusion or
estimate by looking at only one side.
All should enjoy the general bene
fits which .accrue from the building of
a railroad, such as the rise in land,
every one is entitled to in an undi
minished and untarnished form. It
is his inalienable right which he
ought not to be deprived of, but when
this one individual who claims dam
ages is found to have received some
D'-culiur advantage which the com
munity has not receivea, such as the
drainage of a swamp or otherwise
useless morass, why should not these
peculiar benefits be taken into ac
count? I am anxious to arrive at
what is just and right in respect to
this provision proposed to be engraft
ed into our Constitution, and if I
could be satisfied thai, the proposi
tion was just, I would support it,
but I believe that the amendment
as proposed by my colleague (Mr.

DAMAGES— COMPENSATION

365

Friday]

MANDERSON

[July 14

Manderson) is just and as it should
be, and I shall support it."
Mr. MANDERSON. Mr. Chairman,
I wish to acknowledge the valuable
aid received by myself in the advo
cacy of this proposed amendment by
my colleague (Mr. Lake) ; he has re
lieved me from much difficulty and I
merely rise to reply to one or two
propositions by the gentleman from
Otoe (Mr. Mason) whom I conceive
has strangely misconceived, or who is
disposed to misrepresent the remarks
I made in introducing this amend
ment. To a certain extent I would
place railroad corporations above the
private individual. The law does so.
To no individual does any State give
the right of eminent domain, as it
does to railroad corporations. But
when it comes to mere rights, I
would not for an instant place the
railroad corporation above the indi
vidual. Let us suppose a case. A
comes to B, and says to him, "I pro
pose to take one half of your prop
erty," say he has two hundred feet.
He say's he will place, on the one
hundred feet he takes, that which
will make it of immense value. The
whole property is now worth one
thousand dollars and the half that
B shall keep A promises to make
worth $10,000, by putting up a hotel
for instance, so that you can use it
for purposes that you can never use
it for as it is. Now what will A say
to him? He says "Sir, I will give
you the property if you will do as
you propose." Now it seems to me
that is rather the position of the rail
road company that takes the land
and the individual who purchases it-
As my colleague from Douglas '(Mr.

Lake) suggests, I do not propose that
against the land taken there should
be any deduction for benefits, but
against the damage to that that is
left, there should be deductions
for special benefits. In what school
of honesty, says the gentleman, have
I learned this thing. The school in
which I learned this thing, is the
school of Redfield, of Cooley, whom
the gentleman yesterday eulogised,
the school which is presided over
by these great intellects that have
given us their views upon the com
mon law. It is a view of the common
law that is against these damages,
direct and special benefits should be
set off. I have here that that ex
presses it seems to me, in words as
concise and plain as they can be ex
pressed, the ideas suggested by the
friends of this amendment. I read
from the Chicago Tribune of June
17th, a leading editorial that in all
its spirit is directed, as are many edi
torials of this paper against the rail
road interest, and it gives in clear,
concise language what is the law.
"It is certainly very unjust that, if
two farms lie adjoining, and one only
of them is bisected by a railroad,
while another merely fronts on it but
has none of its land taken, the farm
er losing his land shall be told that
his benefit offsets his damage, while
his neighbor, who keeps his whole
land, sustains equal benefit and no
damage. Therefore it is that the
rule of law which should be enforced
in all such cases is, that no benefits
shall be offset to the damage except
that which is peculiar to the person
whose land is taken, and not common
to all adjacent proprietors. The pe
culiar, personal, and exceptional
benefits sustained only by the owner.
of the land taken may be offset, but

366

DAMAGES— CQMPENSATION

Friday]

MANDERSON

[July 14

not the benefits accruing to him
equally with the owners of land not
taken, such as the nearness of depot,
and the general advantages of having
a road run within convenient dis
tance for travel and transportation.
These benefits being such as the
whole community share, and have
the right to share, by virtue of the
building of the road, cannot be charg
ed as an offset in payment to any
owner for land taken. Any lawyer,
by referring to Cooley's Constitution
al Limitations, or Redfield on Rail
ways, will see the soundness of this
position. This being so it could
only have been by a neglect to proper
ly defend their rights in the courts
that the practice could have grown
up of "taking a man's property and
telling him the taking is compensa
tion." Let me say to the gentlemen, this
grew up in the courts of the City of
Chicago, under that very constitution
of 1870, he reads from, the consti
tution of Illinois which says, "private
property shall not be taken for pub
lic uses without just compensation."
They have sought in the courts of
that State to deduct the benefits not
only from damage, but compensation
for land taken. They have raised
this question there, and able attor
neys have maintained the position in
the lower courts of that State.
"In all cases the Commissioners
appointed to condemn lands for rail
ways should specify the increase of
value given to the remaining land by
virtue of the road running through
it, over what it would have been had
the road run through land of other
owners, not over what it would be
if no road ever were built. And, un
der a right construction of this rule,
which might well be reinforced by a
legislative interpretation, no injus
tice could be done even in particular
cases. The rule should be that the
general advantages accruing to all

land-owners near the route, "and
equally tc> those whose land the road
does not run as to those whose land
is taken, cannot be offset. Any other
peculiar, personal, and special bene
fit which one land owner receives,
by virtue of his own land being tak
en, and would not receive if his
neighbor's land were taken instead.
ought to be charged to him as special
benefit, and he could not complain.
Let the Legislature enact more plain
ly the rule of the common law, and
all will be well, even in the obnox
ious case of railroads.
Now Mr. Chairman, it seems to me
that the last body of men who should
be charged as being held under the
whip of aggregated capital is the
body of men who sat in Convention
in 1850 and adopted the Constitu
tion that has in it the clause that
is to the gentleman objectionable.
That Convention certainly was actu
ated by no desire to advance the in
terests of railroad corporations, they
'were rather enemies than friends,
and in their zeal to protect private
interests, to cripple railroad corpora
tions I think they went too far.
Looking through this Constitution
they adopted we find all through it
the evidences of this fact. They
prohibited the giving of municipal
aid to corporations, and as the result
of that action, we are told, and I
believe truthfully, that since the
adoption of that Constitution, now
twenty years ago, but one short rail
road has been projected and con
structed within the limits of the
State of Ohio, because of their strin
gent rules against private corpora
tions. The city of Cincinnati stands
to-day upon her beautiful hills asleep
and snoring, while other cities ar«

DAMAGES— COMPENSATION

367

Friday]

MANDERSON

iJuly 14

passing her in the race for municipal
wealth. Her great need is a railioad
to the south east, she cannot aid it
because of the Constitutional ob
jections. Therefore I say it comes
with bad grace from the gentleman
to charge such a Convention as this
with a desire to legislate for any
railroad interests. I think too, it
comes with bad grace from the gen
tleman to charge this as a dishonest
amendment. I do not propose to
impugn the motives of any gentleman
on this floor. I certainly am not
here wedded to any railroad inter
est. I do not own a dollar of inter
est, nor a bond of any railroad. I do
not think that any one member of
this Convention, no matter how
large he may be physically, should
claim to contain within his frame all
the honesty that may be here. Now
let us take one other case suggested
by the gentleman from Otoe.' He
says, suppose A owns a farm, from
one corner to another diagonally
runs a railroad, what does the gen
tleman from Douglas propose? First
he says, a compensation without de
duction for benefits shall be paid for
the strip of land taken. Correct,
that is our position. But he says, he
next proposes that for the damage
done by obstructing this piece of
land, no benefits shall be deducted,
the land is ruined for farming pur
poses, and the gentleman would pay
no damages. I would pay damages,
but the question of ruin or helping is
a question for a jury, to be determin
ed by a legal tribunal, as any other is
sue that may arise. Let us run out
this question. Here is a piece of
land cut diagonally from corner to

corner, perhaps one side of it is ap
propriated by the railroad and there
is left to the farmer simply this
triangular strip, it is so small that it
is rendered utterly and entirely
worthless for farming purposes.
What does the gentleman propose?
That we should pay not only for
that we have taken for a right of
way, not only for the triangular piece
we have taken but for what is left.
I say we should pay for it if we have
ruined it for all purposes. We may
have condemned it for farming but
rendered it valuable for town lots.
We may have given it some peculiar
advantage. Suppose a railroad tak
ing this strip on one side of its track
erect works in' which they may man
ufacture machinery, they may aggre
gate capital there, and toiling mill
ions may by the sweat of their brow
make those ponderous machines
that run in the interest of aggregated
capital. Toiling millions might
sweat for many generations in their
work, and unless aggregated capital
would lend its helping hand, they
never would construct the ponderous
machines; but the railroad company
places there its valuable shops. This
land that was perhaps worth ten dol
lars per acre before this triangular
strip was left may be worth a thous
and dollars an acre. Had he that
strip taken by the railroad company
he would have been glad to have
given them the land. We do not pro
pose to place the private corporation
below A, and say that while it is true
we have been willing to give the
land to A, he shall not give it to
you as against the land taken. You
must not deduct benefits he has re-

368

DAMAGES— COMPENSATION

Friday]

PHILPOTT

[July 14

ceived against that left that you have
ruined for farming purposes, but
make as valuable as though you
could grow upon your fields green
backs instead of wheat. For that
damage you shall deduct benefit. As
I suggest, and as is suggested by this
article, it is not proposed by this
amendment, the general benefits
shall be set off against the damage tp
the land left but merely special bene
fit, not even, perhaps the location of
a depot. It seems to me, Mr.
Chairman, much more might be said
in favor of this proposed amendment.
It is not one raised in all necessity,
one that does justice to the citizen
and private corporations, and there
fore I hope it will be the sense of the
Committee it should be adopted.
Mr. PHILPOTT. Mr. Chairman, I
shall have but little to say on this
subject. I see some things that
should be brought to the attention
of this Committee. I do not believe
as has already been intimated, that
railroad corporations are the repre
sentative to some extent of a sov
ereignty, that they possess that great
public character which has been as
cribed to them and that thereby they
attained eminent domain.
I do not like to hear it in a Re*
publican country like ours. I take
the right under which the railroad
takes by the law of necessity, by
which any property any where in a
Republican form of government can
be taken. Suppose A has a farm
that is surrounded by B, C, D, and E.
They say to him, "This is our land,
you cannot go to your land over
ours." What is he to do? Why, that
law of necessity, which says that

property, wherever it lies, should be
for the benefit of the whole commu-\
nity, comes in and demands that he
shall have right of way to his own
land over any other that may sur
round him. Now, how is it in respect
to taking right of way from one coun
ty to another. Where does the law
of necessity come in? It is absolute
ly necessary the road be made from
one county to another, that the busi
ness may be carried on ; hence, by the
law of necessity, it is right the State
should make laws that will give them
the' right of way to any part of the
State. Now where does this question
of quasi public come in? There is
no doubt railroads are lawful, and
cannot exist without extension, and
they must have the right to take
property in order that they may be
extended from one point to another.
We can never take the property of
any individual only by permission of
the government and the State, and
that is the only law I am willing to
recognize. Suppose a number of
men organize themselves into a com
pany for the manufacture of shoes.
They certainly would render the pub
lic a good by so doing, if they sup
plied the articles cheaper. But be
cause they do good it does not make
them a public institution, and so with
railroads. What do railroads do?
They may be organized in the eastern
portion of the country and extend to
the western portion; and when they
come here they may charge perhaps
three or four times more for way
freight through your State than for
through freight. Now these great
public benefits are nothing more than
bleeding the people. Generally they

DAMAGES— COMPENSATION

369

Friday]

MANDERSON— PHILPOTT

[July 14

are private corporations in every
sense of the word. They receive who
they please and what freights they
please. My object is to show that
these corporations are private in
their character, and I want them
considered in this light. Let one of
these private corporations pass over
some individual's land, and suppose
there is something which might be a
pecuniary or special benefit to the in
dividual. I want to know whether
you will compel that individual to
take advantage of that special bene
fit. How do you know it is a special
advantage? I would like the gentle
men who have been discussing in fav
or of this amendment to show up
those peculiar advantages, and show
in what manner those advantages
can be made profitable to the man. I
certainly would be in favor of the
section as reported by the Commit
tee. Mr. MANDERSON. Will the gen
tleman from Lancaster permit me to
ask him, would not that question of
damages, and benefits to be offset
against damages be a question to be
passed upon by a jury?
Mr. PHILPOTT. I have no doubt
it would be a question for a jury,
but I want it never to become a ques
tion for a jury to determine, there is
no reason why we should put this
matter in such a condition that it
should ever go to a jury. If they
open up that land it is for the man
to take advantage or not as he
pleases. How can you- compel him to
take advantage? And why would
you allow, in this particular instance,
to a private corporation, who are en
tirely for themselves? I cannot see
24

any philosophy or reason why a party
should be put in that condition be
fore a jury that he shall go and
show whether he is able to take ad
vantage or whether he will or will
not take advantage. I want the man
to receive for the amount of [the]
tract taken and for damage, but if
he gains any special advantage let
him embrace it: it is his good luck.
The gentleman from Douglas (Mr.
Manderson) has referred to a speech
lately made in this town by an emi
nent gentleman from Ohio, in which
he said that but one railroad has
been projected in that state during
the last twenty years. Now what is
the reason of that? The reason gen
tlemen cannot be credited to this
provision in the Ohio Constitution
which prohibits railroad corporations
from being allowed to put in, as an
offset to damages private individuals
sustained by reason of railroads, gen
eral benefits which are conferred up
on the whole country by railroads.
Mr. TOWLE. Mr. Chairman. Al
though I am very favorable to rail
road corporations, and although I be
lieve them to be of a quasi public
character; but I believe, further, that
they have become very popular and
consequently very powerful, and it
is for Constitutional Conventions —
it is for the people of the different
States to see to it that railroad cor
porations are placed in proper bonds.
It is the duty of the Legislatures to
place about them such limitations
that they cannot drive over the pri
vate interests wherever and when
ever they see fit. I believe the wis
dom and experience of the last thirty
five years has demonstrated the nee-

370

DAMAGES— COMPENSATION

Friday]

TOWLE— MAXWELL

[July 14

essity that there be damages given,
not, only for property taken, but for
property damaged also. Now where
can a claim for damages be made?
It can be made where private proper
ty is partially, or wholly taken by the
public officers, or corporations —
where property is either used or in
jured. For instance take it as it
was in a certain place in Kansas a
few years ago. A railroad was pro
jected and partially built. There
was some question as to the location,
at a particular point and two lines
were constructed, for a short dis
tance, running at right angles with
each other. Then another line was
run which formed the hypothenuse
to this right angle. Large excava
tions were left and the parties own
ing the property brought suit for
damages and the case has been drag
ging along in the courts, for years.
If proper Constitutional provision, ha'd
been made to regulate cases of this
, kind a great deal of expense could
have been saved. But the special
question here, , is the question as to
whether we will allow a deduction on
damages for special advantages that
may be conferred by a railroad cor
poration, or any pther kind of a cor
poration that may choose to occupy
, your land or take your building.
Why, sir,, if a railroad company can
say that by, going through my land,
they are conferring special advan
tages on me, and that these special
advantages are to be. considered as
an. offset, where would be the end of
it?, Why it would only be following
out that proposition to say that any
corporation might go out upon a
farm and set out stakes and begin

work upon a hotel, for instance, and
claim that as they propose to raise
the price of the land adjoining, that
this should be taken into considera
tion as an offset to damages^
,', Mr. MAXWELL. Mr. Chairman. I
have no hostility to railroad corpora
tions: on the contrary, I desire to
encourage them in every possible
way. I would place no obstructions
whatever in their way, for I wish to
see railroads built up throughout our
State. I think the views of the gen
tleman from Douglas, (Mr. Lake) in
regard to the rights of corporations,
are, in the main, correct. From the
necessity of the case, these corpora
tions take private property from the
owner without his consent, and use
it. Now the question is, is this com
pany to pay all the damages sustain
ed? Now it is, said by all, that they
should pay for the land taken; but
it is a question as to whether they
should be permitted to assess any
special benefits that have resulted to
the owner. I think there will not
be one case in a thousand, where any
special benefits would accrue. I
would say that where the chances
are so few that special benefits ac
crue, that the party whose land is
taken shall, in all cases, have full
pay for all damages sustained. Now
under our present law, it is provided
that a juryxshall go and make an es
timate of the damages. The men com
posing this jury know nothing about
land, [law] generally. They reason
in this way; they say, "here this land
is worth so much to-day; "before the
railroad run through, it was worth
so much," So that they do actually
take into account the general benefits

EMINENT DOMAIN

371

Friday]

MYERS

[July 14

which have resulted to the entire
community by reason of this road
being built. The Constitution should
clearly state that these corporations
should be required to pay all dam
ages actually sustained. It is true
that in most of the States these gen
eral benefits are put in as an offset
to damages, because, in estimating
damages, it is the rule to take into
account the value of the land before
the railroad ran through, and then
consider the value of the land after.
Now that takes into account gen
eral benefits, that is, such as are shar
ed in by the whole community, by men
whose lands are not touched by these
roads as well as those that are. If
this is left to the Legislature their
laws may be changed at any time
and they might lay down another and
different measure of damages than
is now adopted, and is it not best to
lay down as a fundamental principle
in the Constitution that the general
benefits shall not be considered
against the measure of damagps?
Now, only for the color of law that al
lows railroads to go upon our land
what are they but public trespassers,
and this being the case I say that
they should pay for all the damages
that we sustain by their trespass.
Mr. MYERS. Mr. " Chairman,
where there is such a wide and
marked difference in the minds of le-1
gal gentlemen on points of law, it is
hard for others outside of the bar to
come to a conclusion upon the diffi
culty. Now, sir, I do not propose to
speak from a legal point Of view,
but simply as a farmer In regard to
railroad improvements, if I under
stand the amendment of my col

league (Mr. Manderson) it does not
apply only to railroads but to muni
cipal corporations and others. Now
I have followed it as a principle in
my mode of action that wherever
there are reciprocal benefits that they
ought to be taken into account in
the measure of damages. I am al
ways in favor of fair play. I - have
ever failed to recognize any differ
ence between a man and a corpora
tion in this matter. It is true as the
gentleman from Otoe (Mr. Mason)
said that a corporation has no eyes
to see and no ears to hear, and I
would [add] often no heart to feel.
The provisions in the Constitu
tion of the State of Pennsylvania are
very plain and simple and even that
great State has always progressed in
her improvements without inflicting
serious damages upon private prop
erty. The late governor of Ohio de
livered a speech here a few days ago
from that wood pile there, that be
longs to the State I believe, in which
he said that on account of railroad
restrictions in the Constitution of
that State but one railroad had been
projected and built for the last twen
ty years, and the city of Cincinnati
sits idle to-day for want of railroad
connections, her great hog trade
crippled for want of transportation.
The provision in the Pennsylvania
Constitution is:
The Legislature shall not invest
any corporate body or individual
with the privilege of taking private
property for public use, without re
quiring such corporation or indi->
vidual to make compensation to the
owners of said property, or give ade
quate security therefor, before such
property shall be taken.

372

EMINENT DOMAIN

Friday]

HASCALL— GRIGGS

[July 14

That is the Constitutional provis
ion of the Key Stone State, and un
der it that great State has built
thousands and thousands of miles of
railroads through difficult places
and paid for all the damages. Now,
sir why should we restrict or em-
barass the construction of railroads
in this State? If I have a horse in
my stable and attempt to feed him,
but tie him up so short that he can
not eat, would I not be starving the
horse just as much as if I would not
give him anything? And if we say
to these railroads "go on and improve
our State," and yet restrict them by
legislative enactment by saying you
shall not go through here without
first paying for all the damages you
may do without deducting any bene
fits, so as to make it unprofitable to
build any roads, do we not cripple
our own interests? Who are the
owners of the railroads? No King,
no titled monarch, but we the people,
and why should we prepare a halter
for ourselves? I am in favor of the
amendment of my friend from Doug
las (Mr. Manderson), that we may
leave at least one way open for the
advance of these great improvements.
Mr. HASCALL. Mr. Chairman. I
move that the Committee rise, report
progress and ask leave to sit again.
The motion was agreed to.
Mr. GRIGGS. Mr. President. The
Committee of the Whole having had
under consideration the article en
titled Bill of Rights beg leave to
report progress and ask leave, to sit
again. Mr. McCANN. I move that when
this Convention adjourn to-morrow
it adjourn at eleven o'clock to meet

Monday afternoon at two o'clock.
The Convention divided and the
motion was agreed to.
Leave of Absence.
Mr. MASON. Mr. President. I
desire leave of absence to-morrow.
Leave was granted NEM. CON.
Mr. HASCALL. I ask leave of ab
sence for myself and Mr. Myers until
Monday afternoon.
Leave was granted NEM. CON.
Adjournment.
Mr. BALLARD. I move we ad
journ. The motion was agreed to, so the
Convention (at twelve o'clock and
two minutes) adjourned.

Afternoon Session.
Convention met at two o'clock,
and was called to order by the presi
dent. Mr. WAKELEY. Mr. President, I
move that the- Convention go into
Committee of the Whole on the Bill
of Rights.
The motion was agreed to.
Committee of the Whole.
The Convention went into Com
mittee of the Whole with Mr. Griggs
in the chair. BUI of Rights.
The CHAIRMAN. Gentlemen of
the Committee the question is upon
the amendment offered by the gentle
man from Douglas (Mr. Manderson)
to insert after the word "compensa
tion," "for property taken." Are you
ready for the question?
Mr. WAKELEY. Mr. Chairman.
The moving of this amendment has
occasioned some discussion in respect

DAMAGES— COMPENSATION

373

Friday]

WAKELEY

[July 14

to the principles which control the
compensations to be allowed for
property taken or damaged for pub
lic use. It is an important question.
It is a question merely of what is
right and just, and ought to be dis
cussed temperately, and not in the
spirit of advocacy, or with any un
due zeal, to carry the point either
way. I have but few observations to
make in reference to the merit of this
amendment. In most of the Con
stitutions of the American States
there is a simple provision that prop
erty shall not be taken for public
use without just compensation. And
under that mere general provision
no very serious difficulties ever arose
that I am aware of, or have become
acquainted with in the course of
legal investigation. But the provis
ion has been modified in some of the
later Constitutions, with the view of
more effectually protecting the rights
of the citizen whose property is tak
en for public use. In the Ohio Con
stitution there was added to the gen
eral provision "that property should
not be taken until this compensation
had been first made in money."
That was a safeguard additional to
what had been established in the
Constitution of other States. In Ill
inois, by the recent Constitution, a
further provision was made to ob
viate some doubts or difficulties
which had arisen in the construc
tion of that provision in the Bill of
Rights in the old Constitution, to the
effect that property not only should
not be taken for public use without
just compensation but it should not
be damaged without just compensa
tion. The section reported by the

Committee on the Bill of Rights em
bodies both these provisions and
safeguards. It is well to see what is
the effect of the amendment offered
by my colleague, General Manderson,
and to discuss this question with ref
erence to that. As I understand it,
Mr. Chairman, the object of the
amendment is simply this: there is
a general provision in the section as
it now stands that compensation for
property taken or damaged shall be
estimated without reference to any
benefits to the property of the owner.
My colleague proposes to amend the
section so that benefits to the prop
erty shall be excluded from consid
eration only in case where the prop
erty is taken. And the effect of the
amendment would be to leave the
provision in the shape that when a
jury is called upon to assess the dam
ages occasioned to his property by
the construction of a work of inter
nal improvement, the benefits to the
property, as well as the injuries to it
shall be considered. It does not af
fect the provision that when property
is taken and appropriated, for pub
lic use, that full compensation, in
money shall be made. It is intended
for that class of cases where the
property of the citizen is not taken,
but where some of his property not
taken is yet damaged by the con
struction of the railroad or the high
way or the street. Now, sir, we all
agree that if the property of the
citizen be taken for public use it
must be paid for in money. It can
not be paid for by any benefit which
the other property of the citizen re
ceives, you cannot take away his
property and pay him for it by bene-

37i

DAMAGES— COMPENSATION

WAKELEY

[July 14

fiting some other property. You
must pay him for it in money. But,
sir, when he comes into court and
claims compensation for damage done
to property which you have not taken
how are you to arrive at the amount
of damage? Are you to determine
the damage by looking only to those
particulars in which the property is
rendered less valuable, and exclud
ing from consideration all particu
lars in which it is rendered more
valuable? Is that the way to arrive
at just compensation for property
taken? For instance, if I have two
lots in the city, and a railroad cor
poration or the city, for some muni
cipal purpose, takes one of my lots,
they pay me its money value. If I
have another lot adjoining it, and I
claim that that lot is damaged by
the construction of the railroad or
any other work of public improve
ment, how is the jury to arrive at my
damage? The property is not taken
but I assert that it is damaged, and
I ask compensation for it. I will sup
pose that a railroad is constructed
in front of that lot, so _ that it re
quires me to fill up the lot to bring it
to the grade of the railroad; or, I will
suppose that an excavation is made
in front of the lot, which will require
me to excavate from the surface of
my lot. This is an expense to me,
and if that loss is to be considered
my lot would be damaged. But I
will suppose 'that this adjoining lot
has been taken for depot purposes;
and I will suppose that by their con
struction of the railroad and the lo
cation of the depot directly adjoin
ing that lot, that notwithstanding it
requires to be filled up to bring it

to grade, or excavated to bring it
down to grade, it is still worth more
in the market since the construction
of the railroad than it was before.
Now, sir, have I been damaged or
not? I deny that the building of that
road or depot, has damaged that lot,
but the jury that sits to estimate
damages, are to entirely exclude the
benefits which have resulted to my
property. I say that this is not a
just rule. I think that we ought to
leave the Constitution in such form
that the court would be compelled to
instruct the jury to allow, as an off
set to the damages I may have sus
tained, these great and peculiar ben
efits which have accrued to me, and
by which the value of that portion
of, my property remaining, has been
greatly enhanced in value. Gen
tlemen argue this question as if it
were merely a question cetween citi
zens and the railroad corporations.
This question is general. It con
trols all corporations by which pri
vate property is taken for public use
— railroad corporations, municipal
corporations, public parks, streets
etc. What is just in one case, is just
in all. If this amendment is adopted,
it leaves the rule as it always has
been — where the court always favors
the citizen, and gives him full com
pensation in money for all property
the public takes, and gives him all
damage he, has sustained to the other
property. Mr. LAKE. Mr. Chairman, There
are one or two remarks I desire to
make before the vote upon this ques
tion is taken. The gentleman from
Cass (Mr. Maxwell) seems to think,
after all, that the doctrine contended

DAMAGES— COMPENSATION

375

Friday]

LAKE

[July 14

for by my colleague (Mr. Manderson)
is right; at least I so understand him
in his remarks before the Committee.
He says that the rule which has been
laid down by the courts of this State
is an equitable and just rule. In
this I entirely agree with him — that
the rule is just and right, and yet
one thing that seems strange is, that
the gentleman should contend that
there should be inserted in the Con
stitution, a provision which would
not secure the very rule which he
deems just and right. This is the po
sition which the gentleman takes;
he deems the rule laid down by our
courts, relating to cases between
railroad corporations, town corpora
tions, etc., and private individuals,
is an equitable and just one, and
thinks, also, that the amendment of
fered by my colleague will, by a Con
stitutional provision, continue that
very rule which he would be satisfied
with. Now I would say to the hon
orable gentleman from Cass, (Mr.
Maxwell) that we propose to guard
him and his interests against any
damages he may sustain by having
his property taken by railroad or any
other corporations — we propose to
secure to him that very rule, in the
estimation of damages which he so
heartily applauds here to-day.
I am very sorry that the gentleman
will sustain a rule — will sustain a
principle which is sought to be in
corporated in the fundamental law of
our State, and at the same time de
clare himself opposed to the very
thing which proposes to fix these
principles permanently. I have
known the gentleman many years.
I have been in Legislative councils

with him. I have watched his course
as a public man, for many years,
with interest. I have had a high
opinion of his abilities and sound
judgment, and I am certain I never
saw him take a position which is so
untenable, and I do expect, before we
get through with this provision, that
he will place himself side by side
with those who are contending for
these valuable principles. We find
the gentleman from Lancaster (Mr.
Philpott) finding fault with the rule
that has heretofore been used, but
the principal burden of his argument,
is this; he finds fault with the terms
made use of and says that a term
which has been used ever since the
first settlement of this country, and
not only here, but elsewhere, is
wrong. He says that some gentle
men in arguing this principle, that
in thus taking the property of indi
viduals for these purposes; for high
ways, public parks, streets, railroads,
etc., have declared that this was ex
ercising the right of eminent domain,
and here he disagrees with them.
He thinks the right of eminent do
main can be exercised only by the
general government, or the State
government. Now I find no fault
with the views of the gentleman on
this point; whether he calls it the
exercise of the right of eminent do
main, or the exercise of the right of
necessity, or the exercise of any oth
er power which gives the right to do
these things. Now while they say
the government may exercise this
'right in respect to roads, it cannot
exercise it with respect to railroads.
I say it has. If you find any distinc
tion in our law books', you will find

376

EMINENT DOMAIN

Friday]

LAKE

[July 14

an exception. Let us see what an
eminent jurist — one who is always
on the alert for sustaining the rights
of the people and against the en
croachment of corporations — has to
say upon this question. I refer to
Judge Bartley, and I quote from the
Fifth Vol. of the Ohio State Reports.
I will say that I will place the wis
dom of the Supreme Court of Ohio
in juxtaposition with that of the
gentleman from Lancaster (Mr Phil
pott). "The right of eminent domain, to
which the right of property is made
incidentally subservient, is one of the
highest attributes of sovereignty con
ferred upon the state. It was at
one time contended with great force
and plausibility, that this function of
the civil power could only be exer
cised by the. government, and that the
exercise of it could not be delegated
to individuals or private corpora
tions, any more than the co-ordinate
power of taxation, or power of en
acting or repealing laws. Beekman
v. the Saratoga & Cchenectady Rail
road Company 3 Paige's Rep. 45.
Although I am not disposed, at this
day, to question the delegation of
this power to private corporations
(even although for the construction
of works which are private property,
and controlled and used as such) sus
tained upon the ground of a result
ing benefit or advantage to the pub
lic; yet I insist, that if there be any
matter of truth or value in the set
tled rules of judicial interpretation,
the Constitutional grant of this pow
er must be strictly construed; and
that such exercise of it by private
corporations, which always is upon
occasion, not of public emergency,
but simply of public convenience,
should be well guarded against in
fringements of the rights of private
property." So you see that this right of emi

nent domain may be conferred upon
individuals, or may be conferred up
on corporations by the judicial au
thority of the State, and it is but
right in the case of corporations that
benefit the whole State as railroad
corporations do, in building railroads
which furnish means of ingress and
egress to and from the State, and
from one portion of the State to an
other — we say that the State, by rea
son of these resulting benefits, is
justified in so doing — in granting to
these great corporations, the right of
eminent domain, and we think no
one can question, successfully, the
right of railroad corporations to ex
ercise this privilege- of taking the
private property of individuals — un
der wholesome and proper restric
tions — for the benefit of the entire
State, and it matters not, whether
the State exercise this right of emi
nent domain itself, or whether it
delegates that power to a corpora
tion which has for its object, not
only private emolument, but as a
necessary result, the benefit of the
people of the entire State. It seems
to me from anything that I have
heard from the opposition, that there
has been no reason offered against
the rule laid down by the Supreme
Court of our State, and why not, if it
be just, continue that rule as a fund
amental law. If the gentleman can lay
down [one] that is better, or show
where this bears one pennyweight's
grain against the stern principles of
equity, I will join them in the op
position to the principles sought to
be laid down by my colleague. But
if not, let us be satisfied with the rule
which is admitted to be right. Then

EMINENT DOMAIN

377

Friday]

LAKE— PHILPOTT

[July 14

let us not quarrel over the mere use
of terms. I wish to ask the gentle
man from Lancaster (Mr. Philpott)
what is the difference whether the
land is taken as private, corporation,
or in the name of eminent domain
when the State requires it? The
•original section reaches out further
and includes far more than railroad
•corporations. The argument seems
to be that railroads only are includ
ed. Let us look at it and see. In
-the exercise of this right of eminent
domain is contained towns, counties
.and other authorities, who may lay
¦out a highway from one part of the
State to another. The gentleman
from Lancaster has said in no case
are the damages charged to be off
set by the benefits received.
The gentleman certainly is mistak
en. I have had some experience at
the bar and on the the bench and if
I recollect right the rule is different
from the one laid down by the gen
tleman. He is entitled to damages
to his land, and then if he has re
ceived special benefits by the loca
tion of the road those may be taken
into account, and should be. The
gentleman says that railroad corpor
ations are entirely private and to
support that he says that they may
refuse to take goods as common car
riers. I am sorry that the gentleman
has to take such a position as that to
support his arguments, for if he con
sults the law he will find that they
are common carriers and have to
take goods as such. All the rail
roads in our State are subject to the
action of our Legislature so entirely
that it may control their speed, rate
of charge, etc. They are entitled to

just such privileges as the Legisla
ture sees fit to give them, and one of
their rights is that of eminent do
main, and just so long as they keep
within the provisions of the law are
they entitled to these rights. If no
better reasons than what we have
heard, can be urged against a rule
that is so just why is it that we see
this opposition? I hope the hon
orable gentlemen will so far forget
their opposition to railroad corpor
ations as to allow them to look with
reason upon a rule that has received
the sanction of the State. I trust
this amendment will obtain.
Mr. PHILPOTT. Mr. Chairman, I
first propose to reply to the gentle
man last upon the floor. I did say
that railroads cannot be made to car
ry passengers. The gentleman and
others have ridiculed the idea, but
what will you say when I still assert
it? It is true that if they once become
a common carrier by the receiving of
•goods or passengers then they are
subject to the laws, but if they have
with-held one portion of their road
from the use of the public then there
they are not common carriers. Now
I don't object so much to those words
eminent domain as to the manner in
which it is attempted to be used here
for a special purpose.
Railroad corporations when they
take the private 'property of citizens
are acting by virtue of authority con
ferred by the Legislature of the
State. That Legislature, by virtue of
the sovereignty of eminent domain,
can delegate its property to private
corporations, and they under the
code of the eminent domain take the
private property. I say the Legisla-

378

DAMAGES— COMPEN SATION

Friday]

PHILPOTT— LAKE— ROBINSON

[July 14

ture should not be clothed with that
authority in order to take this pri
vate property. A railroad cannot ex
ist unless it is allowed extension, and
in obtaining that extension it may
take private property of persons,
but in so doing it is its duty to pay a
just compensation. I willingly con
cede that after they have taken the
land they should pay a just compen
sation for it; the next thing to be
considered is how much is the land
worth not taken and which has been
damaged? They should also pay for
that. So far we agree and where we
disagree is in this. Gentlemen here
desire to incorporate into the Con
stitution of this State such principles
as that is, by virtue of taking the
land for the benefit of corporations,
they may offset that against the dam
ages for the other land not taken.
They come upon a man's land, take
his property, and then say, "we
have conferred upon you a favor and
benefit, and the benefit we have
given you, even contrary to your
wishes, without your request, in
counting up these damages we will
offset that against the damage we
have done you."
Mr. LAKE. Allow me to ask a
question. Does not this principle you
are contending for apply to the tak
ing of land of individuals for high
ways, roads, streets, alleys, and so
forth? Mr. PHILPOTT. Yes sir, by vir
tue of the authority conferred on this
railway corporation by the Legisla
ture they take the land. If they
take it by virtue of that authority I
want them to treat the persons whose
land they take in the same manner

as the State, which takes the high
ways. Suppose the State lay out a
road. It condemns the land it pas
ses over. Where did you ever hear
of an instance in which the State
said, "Mr. A, in taking your land we
have doubtless benefited you and
now we want you to allow us to de
duct from such money as you might
claim from us so much for the, bene
fit we have given you?" I am will
ing these corporations should go as
far as the State and no farther. The
State never claims they will offset
that against any damage. If they
claim their damages by virtue of this
eminent domain, let them do as the
State does, and not offset for some
imaginary benefit they may have con
ferred upon the property of the party
whose land they have taken.
Mr. ROBINSON. Mr. Chairman,
For my part I made up my mind long
ago as to what the true rule of com
pensation was and I have been lis
tening very patiently for some ar
gument to shake the conviction. I
have heard none. I am of the opin
ion that if a railroad company takes
private property, it should pay . for
that and the whole of it. I think if
there is any one thing that distin
guishes and characterizes the civili
zation of this age from that of any
other age, it is individual indepen
dence. I do not desire to see that in
dividual independence trampled up
on. I do not desire that the gentle
man from Otoe (Mr. Mason) should
trespass upon my property without
paying me for it, and I am further
more unwilling that he should under
take to set off, against an injury
which he has done me, a benefit,

EMINENT DOMAIN

379

Friday]

ROBINSON— LAKE

[July 14

real or imaginary which he may have
conferred upon me. I take it, Mr.
Chairman, that every interference
with the rights of an individual by
another individual is in fact trespass.
Now, sir, it strikes me it would be
ridiculous if Mr. A, who has been al
luded to several times, should de
sire to erect an hotel in this place,
and should find it very convenient to
his purpose to take my two lots to
erect it upon. I say it would be rath
er a strange position to maintain.
But sir, I can see no difference be
tween the character of a railroad
corporation and an hotel. I see no
difference; in a certain measure they
are both public or private. The hotel
keeper cannot refuse to entertain his
guests, nor the railroad refuse, if it
be a common carrier, to transport
passengers and freight. I care not
what you call it, but sir, they are
also private, they have certain rights
extended to them and duties to per
form. Now for every trespass a man
commits he is bound to pay. He has
no right to take my property and ap
propriate it without paying me fully
for it. I ask gentlemen who argue
on the other side: "What is it in
the case of railroad corporations that
a different rule should be adopted
than in the case of private individu
als?" Why did he take my land,
is it because he is forced to, is it from
some great public necessity, as is
sometimes done in the State? Not
at all! They take my property with
all the consequences which the law
maintains upon that taking, for their
own benefit. I take it, that if any in
dividual undertook to run such a
road, that was. not a corporation, he

would have to pay, he would be
bound to pay me in full. It strikes
me if it pays these corporations to
build these roads, they will build
them. I deny the right of the legislat
ure and, morally, of this convention to
pass any rule which shall compel the
private individual to allow his prop
erty to be subjected, for any compen
sation whatsoever, tp these corpora
tions. Every man has a right to en
joy his own, and notwithstanding the
authority which my learned . friend
from Douglas (Mr. Lake) has read,
I am inclined to think the only per
son, the only thing, to use a general
term, that can exercise this right to
eminent domain is the State. I
have no doubt about it. I did npt
hear clearly what the learned gen
tleman read, but I am confident it
cannot be found in any respectable
book. MV. LAKE. I read from fifth Ohio
State reports. Chief Justice Bartlev
of that State, considered very good
authority. Mr. ROBINSON. I care not, Mr.
Chairman, the State must have this
right. It is from a great necessity,
without a provision specially looking
to these corporations, without a mere
provision that, the State should ex
ercise this right of eminent domain,
would confer upon the Legislature,
the power to provide that corpora
tions might appropriate private prop
erty to their uses. I care not where
the authority is, it contradicts com
mon sense. If we incorporate in this
Constitution a provision that it may
be exercised in such cases, it may,
for the power established is superior
to any other power.

380

CORPORATIONS— EMINENT DOMAIN

Friday]

LAKE-ROBINSON— WAKELEY

[July 14

Mr. LAKE. If the State cannot
confer the right upon the corporators,
how in the world would you obtain
the right of way against the consent
of the owner of the soil.
Mr. ROBINSON. I think it could
not be gained by virtue of any statu
tory provision, a public way I care
not could be given —
Mr. LAKE. I am speaking of rail
roads. Mr. ROBINSON. Well, sir, I look
at it in this way. If the Constitution
under which that Legislature acts,
confers a power broad enough, I
grant he can take away the rights of
half the individuals of this state.
But, sir, without a provision in the
Constitution, conferring upon the
Legislature the right to delegate this
power to a corporation,1 1 assert it
cannot be done. And the point I
make is thire: that if we engraft into
our Constitution simply the provision
that the State shall have and exercise
the right of eminent domain, it con
fers upon the Legislature no power
to grant this right to a private cor
poration. I say this provision must
he special. It does not reside in the
right of eminent domain. This right
can only be exercised for State pur
poses. Mr. WAKELEY. May I ask the
gentleman from Lancaster a ques
tion? Mr.' ROBINSON. Certainly.
Mr. WAKELEY. Is there a State
in the Union which has ever conferred
that power in the Constitution, and
If so what?
Mr. ROBINSON. I do not know of
any which has.
Mr. LAKE. One other question.

Does not all legislative power and
authority reside in the people of the
State entirely which is not delegat
ed or taken from them by the Con
stitution, and cannot they exercise
that right of eminent domain through
their Legislature without express
provision in the Constitution author
izing them to do so?
Mr. ROBINSON. I will answer the
question of Judge Wakeley first. I
said I knew of none. But I do know
that in our own State, and in every
other State, perhaps, there is a pro
vision which provides that private
property shall not be taken for these
uses without just compensation, leav
ing it plainly to be seen that the Leg
islature has in certain cases, the pow-,
er to take this private property. Now
I will answer the gentleman from
Douglas (Mr. Lake). I take it, sir,
that the Legislature has no right to
interfere with private rights except
where that power is expressly con
ferred — no right without some pro
vision which, either by necessary im
plication or special right, confers up
on them the power to take away my
individual rights, and it cannot con
fer such right upon a private corpor
ation without it is expressed in this
Constitution. Wherein are these
public organizations? Are they pub
lic like a county? Is it for a benefit
of the whole people? Not at all.
These are private corporations, which
carry their own capital and work for
their own good. Where do I get the
benefit except I pay them for it, and
pay them pretty high, too? The rule as
I understand it, and which has been
referred to as just and applicable in
this State. is this — and I wish to state

EMINENT DOMAIN

381

Friday]

LAKE-ROBINSON-MANDERSON

[July 14

that it is a great stride above the
rule in some States — if a company
runs over a quarter section it shall
pay the owner for the ten acres if
it runs across, so that it injures that
which remains of my farm, they have
this right at least so says our Su
preme Court, to set off in mitigation
of the damages, the benefits which
have accrued.
Mr. LAKE. That is not the rule.
The rule is that there may be an off
set in special damages to the individ
ual, and the rest of the community
do not share it alike with him.
Mr. ROBINSON. I do not under
stand the rule so. ' I understand that
they must pay for the land actually
taken, and if other damages arise
then they may set off any special
benefit. It must be a benefit conferred
upon him which may not be conferred
upon the whole of the community,
and the benefit to the community is
that it raises the value of the land
in the vicinity.
Mr. MANDERSON. Will the gen
tleman permit me to trespass a ques
tion? Will you name the Convention
a single State in the United States
where, by the terms of its Constitu
tion, or by the decisions of its courts,
a contrary rule has obtained to that
which is sought to be obtained by
this proposed amendment?
Mr. ROBINSON. I do not think,
Mr. Chairman that I could cite now,
but, I will promise the gentleman a
bottle of wine and a box of cigars if
I do not produce them in a certain
time. I think, Mr. Chairman, these
railroads are a good thing; an excel
lent thing. I think they have chang
ed the affairs of things in this coun

try, and are destined yet to change
them. But it strikes me they flourish
where other things fail. Their pow
er is to become enormous. They
have become tyrannical in various
ways, and trampled on the rights
of individuals. I wish, to preserve,
both for myself and fellow creatures,
the right to assert my rights against
any body as long as I live. I do not
believe in conferring upon any cor
poration or body of men exclusive
rights. I believe the good which they
do is, in a great measure, offset by
the evil they do. I would rather cur
tail them. If it can be shown that
they are a part of the State organi
zation, or bear in any degree, a gov
ernmental stamp, I am willing then
that some more rights should be con
ceded to them. Mr. Chairman, I am
not fond of personal allusions; Judge
Mason is right in his proposition,
when one member attempts to im
pugn the motives of another, I think
it is time that the gentleman should
be called to order. When he talks
about our putting ourselves upon
record, as though we were to be in
timidated by this, he is mistaken
Every individual in this house has
sufficient moral courage to place him
self upon the record as having fol
lowed the promptings of his own
judgment and good sense.
Mr. MAXWELL. Mr. Chairman, I
certainly have no feeling of hostility
against any member of this body, and
while I will do every thing in ¦ my
power to insure good feeling amon'g
the members of this Convention, yet
I shall certainly endeavor to do my
duty, and speak freely upon every
question of importance which may

382

DAMAGES— SPECIAL BENEFITS

Friday]

MAXWELL— WAKELEY

[July 14

arise. Now it is contended, very strange
ly, that parties not interested in
special benefits may get pay for their
property. This afternoon, I stated
to this committee that it Was the
custom to offset general benefits ac
cruing, against the damages allowed
the party whose property was taken;
that the course in this State was to
allow damages for the land taken
and then assess the damages against
the land remaining; taking into con
sideration the increased value of the
land as an offset. Now when the
gentleman from Douglas (Mr. Lake)
says that in not more than one case
in a hundred, are special benefits
conferred, he tells the truth. It is
sought to incorporate an article in
our Constitution which will permit
any benefits which may accrue, as
an offset to damages. They say first
pay for the land taken. Suppose you
take a strip 100 feet wide across a
man's farm, across a quarter section,
running diagonally. The owner is to
receive, simply, the pay for the ac
tual value of the land taken. This is
a very small part of the damages.
You take, say, six or seven acres, and
the land is worth $40 per acre. This
would allow the owner f 240, or $280
at the most. Has the owner been
paid full damages? Suppose an em
bankment 20 feet high is left upon
the farm; the owner has received
$280, and he has been damaged
$5,000; his farm is ruined. But
there is a depot a short distance off,
and they claim this is. a special bene
fit, and- the owner of .the farm is
compelled to .pay for this imaginary
benefit.

Mr. WAKELEY. Will the gentle
man allow me to ask him a question?
Mr. MAXWELL. Certainly.
Mr. WAKELEY. Suppose that
depot has made the rest of the land
worth $5,000 more than it was be
fore; how much is his land damag
ed? Mr. MAXWELL. That is just
where the rule of the courts has ap
plied. They say, "this man's land
has increased in value so much; it
was worth twenty dollars per acre be
fore the road was located, and it is
worth forty dollars per acre now."
But then, all the land around is
worth forty dollars per acre, his
neighbors have been benefited in
this way just as much as he has,
while their property has not been
touched; must this man whose land
has been taken, stand all this loss?
The depot benefited the property for
miles around, — -it would be called a
public benefit; so that this is noth
ing more than extending the principle
of general benefit. I say we ought
to insert a provision in our Constitu
tion which will forever prevent gen
eral benefits being assessed against
individuals. This would do away
with a great deal of litigation now
had. The . Constitution would then
say to a jury called to assess dam
ages, "you are to assess this man's
damages, without regard to benefits"
the jury would then gp on, and know
just what to do.
My friend from Douglas (Mr.
Lake) read the dissenting opinion of
Judge Bartley. It is true that the
Legislature does Confer upon these
corporations the right to .take pri
vate property. In effect, this is the

EMINENT DOMAIN

383

Friday]

MAXWELL— STEVENSON

[July 14

Legislature reinvesting the public
with the right of eminent domain.
This right, as I understand it, ex
ists only in the public, but the public
confers it, if it can be conferred, up
on these corporations. Now these
corporations serve the public so far
as this; they carry the public and
they charge for it. They conduct
their own business,, make their own
dividends, and are private corpora
tions to all intents and purposes.
Now I will read an extract from the
same book from which Judge Lake
read, page 149, 5th Ohio State Re
ports. I quote from Blackstone:
"So great, moreover, is the regard
of the law for private property, that
it will not authorize the least viola
tion of it; no, not even for the gen
eral good of the whole community.
If a new road for instance, were to
be ntade • through the grounds of a
private person, it might, perhaps, be
extensively beneficial to the public;
but the law permits no man, or set
of men, to do this without consent
of the owner of the land. In vain
may it be urged that the good of the
individual ought to yield to the good
of the community; for it would be
dangerous to allow any private man,
or even any public tribunal, to be the
judge of this common good and to
decide whether it be expedient or not.
Besides, the public good is in nothing
more essentially interested than in
the protection of every individual's
private rights as modeled by the
municipal law. In this and similar
cases, the Legislature alone can, and
indeed frequently does, interpose and
compel the individual to acquiesce.
But how does it interpose and com
pel? Not by absolutely stripping the
subject of his property in an arbi
trary manner, but by giving him a
full indemnification for the injury
sustained. The public is no.WTConsid-
ered as an individual, treating with
an individual for an exchange', all

that the legislature does is to oblige
the owner to alienate his possessions
for a reasonable price; and even thi*
is an exertion of power which the
Legislature indulges with caution,
and which nothing but the Legisla
ture can perform."
Mr. STEVENSON. I believe it is
an axiom acknowledged by Methodist
class leaders that a person is always
relieved by speaking. I do not want
gentlemen to think that I am not in
favor of railroad corporations, but,
I believe that no corporation, what
ever it may be, should have any ad
vantage over the private individual.
The gentlemen Who sustain this ques
tion all argue that they are a public
benefit, but that is no reason for giv
ing them the right of way through
my farm. As I have to pay for every
thing I get from them it is nothing
more than right that they should pay
for what they get. I hold that it is
not right nor just that a man should
not have damages for his property
when taken either for public or pri
vate use, and if Judge Lake should
array all the authorities of the coun
try before me to the contrary I would
not believe it. Is there any principle
of law or equity in it? I think not.
I say it benefits the man who is a
half a mile away from the road with
out running through his land or dam
aging it as much or more sometimes
than the man whose property is tak
en, but the one who sustains the loss
is to be subjected to deduction for
benefits. That is not just.
It is a fact that these corporations
are becoming very powerful, and
their powerful influence is permeat
ing all our Legislatures. Although
Judge Lake says we are not here for

384

EMINENT DOMAIN

Friday]

STEVENSON— MANDERSON

[July li

the purpose of legislating, I must say
we are here to draw up organic law
for the government of legislators and
we must guard well the interest of
our constituents, and we must not
give the corporation any better right
or more than the man who erects a
mill, or opens a stage line. If we are
going to offset damages for one let
us do it for all,. Why should we be
so lenient with these great corpora
tions? How many of those who hold
the stock of them are residents of our
State. Very few. I believe if there
had never been given a bit of aid to
the railroads they would have been
built. They are not only looking at
the present, for every dollar they ex
pend to-day they will receive double
to-morrow. Mr. Myers spoke a
great deal about the great State of
Pennsylvania. I care not for the pre
cedents of any other state — we are
here to make laws for the people of
the State of Nebraska, and laws ap
plicable in Pennsylvania might not
be practicable in this State. You
might as well say because the heath
en mother casts her child into the
Ganges to be destroyed by the croco
dile, therefore we should do so. I
hold it is jumping right out of the
frying pan into the fire. It is our
sworn duty to ourselves and our con
stituents to make the law so that
they can get the pay for the damages
done them and their property by
these corporations. Judge Lake
speaks a great deal about public high
ways, but I hold there is a great dif
ference between them and railroads,
I do not know of a case where the
benefit of a public road was made to
offset the damages done by the open

ing of that road. I hope this amend
ment will not prevail and I hope the
members of this Convention will look
well to the interests of our State and
beware how they vote on this amend
ment. ["Judge Mason's speech on this
subject — pp. 279-385 of Mss. — Sent
to him for correction and not re
turned. Not found among Judge
Mason's papers after his death.]
Mr. MANDERSON. Mr. Chairman.
In my youthful days, when attending
those traveling shows that pass
through the country now and then,
sometimes under the name of circuses
and again under the name of menag
eries and which, when they adopt
the latter name, are considered to
be entertainments highly moral and
instructive in their character, I have
noticed that the moment of deepest
interest and intensest enthusiasm,.
when the promiscuous audience gath
ers with the greatest emotion to gaze,
open-mouthed and with hair on end,
upon the scene, is when, the em
ployes and keepers of the animals-
having by goads and sharp sticks in
troduced into the den of the caged.
lion, roused him fully the monarch
of the forest paces to and fro in his
confined limits, in fury lashes his
tawny sides with his tail, shakes his
shaggy mane, opens his throat and
roars to the delight of the assembled
and admiring crowd. And it is-
strange that but a moment ago this-
"dreamy reminiscence of my child
hood days" should be presented so
vividly and forcibly to my mind.
I would be content, Mr. Chairman,
not to raise my voice again in advo
cacy of the proposed amendment.

EMINENT DOMAIN

385

Friday]

MANDERSON

[July 14

were it not for the peculiar character
of the remarks of the gentleman from
Otoe (Mr. Mason).
We have heard the deep bass of
his trombone and his roar "full of
sound and fury signifying nothing"
in opposition to my amendment, and
I cannot attempt, nor would I dare,
to compete with him in any exhibi
tion of the character ne has given be
fore this Convention. But being, as
I claim, as honest and unbiased in
my advocacy of this amendment as
he can be of the original article, I
do not propose to sit entirely silent.
He has seen fit to criticise some of
my argument in a manner it certainly
does not deserve. He says he notic
ed a sneer upon my face when I
made reference to the sons of toil;
that I "held double quotation marks
on each side of my mouth" when I
used language of which I credited
him as its author. True, there were
quotation marks and perhaps a sneer.
But that sneer was not intended for
the sons of toil nor will they so ap
propriate it. The gentleman cannot
exceed me in my regard and admira
tion for the laborer and toiler whose
skilful hand or active brain blesses
mankind by its creative power. I
claim to be a "son of toil" and be
lieve him to be one. We are all
workers whether we labor with head
or hand. The mind that conceives a
great idea should receive as much
grateful commendation as the labor
ing muscle that with executive force
carries that idea to successful opera
tion. The sneer, recognized by the
gentleman, was rather directed to
that class of individuals who from
demagoguery, clap-trap and pure
25

buncombe wish to array interests in
antagonism that should go hand in
hand, who attempt to array labor
against capital and say to the "sons
of toil" "these men who have gather
ed wealth are your natural enemies,
up! and at them!" He who does this
and urges this antagonism deserve?
and should receive not only the sneei
but the rebuke, open and expressed,
of every man who does not wish to
see our beloved country drift into
such terrible scenes, such as we have
so lately read as occurring at the
coal mines in the State of Pennsyl
vania, or to see this broad land a
Paris under a reign of terror more
terrible than that of the bloody days
of the French revolution. Let the
arch demagogue take to himself my
sneer rather than attempt to throw
it upon those for whom I have simply
regard and praise.
There were several propositions
made by the gentleman from Otoe
(Mr. Mason) that I will attempt to
reply to. First let me take up that
most labored of his argument. He
says suppose a railroad corporation
taking its way through the land of a
farmer sees fit to enter the private
burial grounds, tears down and des
troys the monuments he has erected
to the memory of some loved anx*
dear one. This is an extreme case
and one that could hardly occur. I
do not know whether there exists
in our statutes that law which finds
its place in the legislation of so many
States, that no burial ground or cem
etery can be taken by any railroad
corporation for its use. Against any
such hardship there can be and is
full protection in the law. He says

386

DAMAGES— SPECIAL BENEFITS

Friday]

MANDERSON

[July 14

a man may have upon his farm a
stone quarry buried under the earth.
He does not propose to use this quar
ry, but keep it as an inheritance for
his children. No railroad existing
near him, there is but a local demand
for the stone and it is of little worth.
It has for him no present value and
is of but prospective benefit. A rail
road is established through his farm.
The corporation pays him in full for
any land taken and he says "you
have ruined my farm for agricultural
purposes, pay me its full value as in
cidental damages." The gentleman j
from Otoe says he should be thus [
paid. I say no. If there is actual
present damage he should be paid, '
if he is not damaged he should re- I
ceive nothing, save payment for the
land taken. Suppose the establish
ment of the road gives him a direct |
incidental benefit, that the stone
quarry before having no practical '
value has now been called into pay
ing existence to enrich the owner. ;
Poor in his possessions before he is
now enriched and yet the gentleman
would pay him for an imagined dam
age he has never sustained. But we
are told the farmer did not want the
benefit, that he wished to live in
quiet retirement upon his farm and
not use the stone quarry during his
life, but keep it as an inheritance for
his children and that his wishes in
this regard should be permitted to
stand in the way of the public needs.
I say again no! He has not the right
to stand in the road of progress and
block upvthe path that benefits the
public and himself. But then the
gentleman says, we have no right to
take from the private individual

something that has to him peculiar
value, for the use of a corpo
ration. Let us look at this for
an instant, and I advance the pro
position that the privilege of
taking private property, even that of
peculiar value to the owner, is per
mitted by the law to private individ
uals and to the law, although it fre
quently works great hardship, we
hear no objection made. Look at the
working of the replevin law. My
friend, from Otoe may have at his
home something which has to him
great and peculiar value, but that as
a marketable commodity is of no
worth. It may be some precious ar
ticle handed down in his family for
generations from sire to son and if
you were to weigh its value and place
on the other side of the scale
diamonds and gold, in his estimation
the precious thing would out-weigh
them all. Yet in open market if ex
posed for sale it would not bring
five dollars. Does the law fully pro
tect him in the holding of this prop
erty? No! If I see fit to make an
affidavit in replevin that this proper
ty is mine, and that after demand he
keeps me out of its possession and
will give a bond in double its market
able or appraised value I can take
from him this, to him, precious thing
— valuable though it be to him and
valueless perhaps to -me. What is
his remedy? It is found by the ver
dict of the jury which tries the right
of property that it never was and is
not mine. Yet I retain the property
i and if I am worth nothing the law
leaves him to his suit for a money
recovery upon the replevin bond and
he recovers only the actual value of

DAMAGES— SPECIAL BENEFITS '

387

Fridayl

MANDERSON

I July 14

the article on the amount it would
hring in the market. Thus it is a
great hardship, it is true, yet the law
frequently for the good of the great
est number works injustice in indi
vidual cases. There must be some
sacrifice on the part of the person
for the good of the whole.
Now a word Mr. Chairman on the
question of prospective damages and
benefits. Take the case of the man
owning the stone quarry that he does
not propose to use. It has to him no
actual value but simply prospective.
He may not want to have a railroad
located near his home. Perhaps he
says "I will be seriously damaged,
the sparks from the locomotive may
destroy my barn, or my house, or the
trains may run over and destroy my
stock." True, they may, they fre
quently do, but if the railroad is es
tablished and does him damage in
this way he has his remedy at law
when the act occurs and a jury pas
sing on the questions raised under
this section cannot take into account
such prospective damage. The act
ual present damage is to be deter
mined by the jury. It first asks
"What is the land worth that is tak
en?" Suppose we say one thousand
dollars then the railroad shall pay
one thousand dollars. Next "how
much less valuable is the land
worth that is left to the owner." Sup
pose we say another thousand dollars.
That is the actual not the prospec
tive damage. Now what do we pro
pose to offset against these actual
damages, simply actual, direct and
not prospective benefits— not benefits
that may exist only in the future. Now,
the gentleman from Otoe (Judge

Mason) in one part of his argument
takes a very strange position, and one
that is inconsistent with the position
he seeks to maintain. In contending
against the adoption of this proposed
amendment he says that the origi
nal section as it comes from the
hands of his committee permits
special and direct benefits to be de
ducted from claims for lands damag
ed. I differ from him in this con
struction, but by this admission his
entire argument loses its force.
Why this is all we claim or want.
We do not wish to drag general bene
fits forward as an offset, we desire
that only directly consequential bene
fits should be considered by the jury.
If the original section permitted this
with it we would be content. We wish
merely to carry into our Constitution
the rule that obtains in every state
in the Union. Either in the Con
stitution or in the decisions of the
highest court of each state you will
find that which we desire here to be
the practice and I will win the bet
from the gentleman from Lancaster
(Mr. Robinson.)
Another argument advanced by the
aggregated wisdom of Otoe county
was based upon the grant of a char
ter to a street railway. I never heard
of a street railway to which was
granted the right to take private pro
perty for its use or right-of-way.
They are chartered institutions and
what is the right given them by their
franchise? To run their track along
the public streets. Can they take a
lot belonging to any private individu
al and locate a stable upon it? No,
sir; they must buy it as any private

388

EMINENT DOMAIN

Friday]

MANDERSON— MASON

[July 14

person would purchase it. I never
heard and do not believe that any
gentleman on this floor ever heard of
an instance where it was necessary
to take one inch of private ground for
Street Railway purposes.
This doctrine applies with equal
force to municipal corporations, and
let us now apply the rule to the
opening of streets in towns and
cities. Suppose I own a piece of land
two hundred feet in depth. The town
corporation in the exercise of its
granted rights of eminent domain
opens a street one hundred feet in
width through the center of my lot.
I have desired to use my lot for resi
dence purposes simply, but the
street is opened and I am left with a
strip of land fifty feet in width on
each side of the new highway, in
stead of the full lot I owned before.
What should be the rule? The corpo
ration should first pay me for the
ground actually taken for the street.
The gentleman from Otoe (Mr. Ma
son) says it should go further and
in any event pay me at the same rate
for that which is left me. He would
have me say, "I wanted this for a
residence lot, I cannot use these
strips for residence purposes, these
pieces left me are useless for the pur
pose I designed them, pay me there
fore to the extent of the value of the
whole lot." "But," says the city," we
take but one half your lot and the
two strips of fifty feet each left to you
are worth four fold more than the
entire lot was worth before the street
was opened. These strips are now
available for business purposes and
you are enriched by the action of

which you complain." I say it would
be very unjust for me to claim pay
ment in the manner indicated. There
has been no damage, there should be
no payment. There has been no
wrong, there should be no remedy.
There should be no recompense
where there has been no loss.
A word only, Mr. Chairman, in con
clusion. The rule we advocate has
received the sanction of years. Gen
tlemen are unable to point out a
single instance where in any Court
a contrary doctrine has obtained and
been enforced than that which we
contend for here. I see no reason
why we should depart from that safe
path which has been travelled by
constitutional lawyers and jurists so.
many years before us.
The CHAIRMAN. The question is
on the amendment offered by the gen
tleman from Douglas, (Mr. Mander
son.) The Committee divided and the
amendment was not agreed to.
Mr. MANDERSON. Mr. Chairman,
I will make this motion, that we in
sert before the word "benefits" the
word "general."
Mr. MASON. Mr. Chairman.
I have no objection to the amendment
myself, but desire the committee to
understand what I consider will be
the effect, for it will leave the rule
without precedent; that is to say,
that you should first pay for the land
taken, then finding the damages you
may deduct peculiar benefits. But
when I am called to vote I will have
to vote against it.
Mr. ESTABROOK. Mr. Chairman,
I will simply say to-night as it is late.

DAMAGES— COMPENSATION

389

Friday]

ESTABROOK— THOMAS

[July 14

I don't care whether this amendment
is adopted or not, but before the sec
tion is adopted I hope that we may
understand it better than we do
now. If I understand the wording of
the section, it is where property is
not taken at all, but just damaged,
no deduction can be had, you may
keep the property in the one case and
in the other you part with it. I take
it that this section was put into the
constitution of the state of Illinois
without any reference to railroads.
The Chief Justice (Mr. Mason) tells
you that this has been the rule al
ready, but this is additional and was
made first. I believe in the constitu
tion of Illinois and I think it was
made to apply in Chicago, or where
it was found necessary for the public
good to destroy some buildings, as
in the case of fire to keep it from
spreading. Mr. ESTABROOK. I cannot con
ceive that the committee has under
stood this thing, it seems to me the
most ridiculous proposition in the
world, to say in the estimation of
damages done you shall be permit
ted to inquire whether there has been
damages. If a corporation takes
away our property, then we inquire
what shall be the compensation. I
have been trying to think of a case
where the railroad corporation could
fall within that provision, and I can
think of only one case, it clearly is
not where a man's farm is taken, you
take his farm and award him a just
compensation. The only case where
I can imagine a railroad corporation
comes within this law is where a man
has a business house upon a street, a

railroad comes along and takes the
street so as to stop travel, but does
not take his land, there are damages
for shutting up his door. What if it
should result that the improvements
in the vicinity are such as to make his
land worth more, you leave him in
possession of his property and do
him a benefit.
Mr. THOMAS. Mr. Chairman. It
seems to me that there cannot be
very much danger in the provision re
ferred to here and in the amendment
offered. I understand that the law-
would be, even if this amendment
were not adopted, that no deductions
should be made for general damages.
I understand the rule of law formerly
v. as that no compensation at all was
given unless the property was ta
ken. I find in Chap. 2 3, page 603
of "Sedgwick on the Measure of Dam
age ' the following:
It has been declared in New York,
in relation to railroads running
through cities, that the prohibition of
the constitution is against taking
private property, not against injuries
to property, and that contingent fu
ture damages or incidental and con
sequential injuries of indefinite
amount not capable of estimate, do
not fall within the statute. So, when
it is alleged that private property in
the neighborhood of a railway will
be injured by its vicinity, the claim
is inadmissable. The same doctrine
has also been applied to the grading
of streets and highways, and it has
been held that injury resulting from
grading and leveling a street, either
by cutting down or filling up so as
to make the street either below or
above the natural level of the adja
cent land, is damnum absque injuria,
for which no compensation can ba
had." I understand that this provision in
i

390

GENERAL BENEFITS— DAMAGES

Friday]

THOMAS— LAKE— STEVENSON

[July 14

the Illinois constitution concerning
damages, is, "when taken or damaged
for public use." This provision is
understood to cover that very case,
the matter of damage of property
where the property is not taken. For
instance, where a rai-ioa-3 is run di
rectly in front of a nun's dwelling
in a city, the street, in front of his
house may be excavated, his proper
ty is damaged, but he is not touched.
This provision is to cover such cases
It seems that would be eminently
just. There should be a compensa
tion for the damage sustained, not
the value of the property because the
property is not taken at all, that
should be without deduction for gene
ral benefits, benefits shared by the
owner of that property in common
with the property around.
Mr. ESTABROOK. Say the lot is
worth a thousand dollars, a railroad
comes past and locates a depot there
in front of him, cuts off his side
walk, nevertheless the lot valued hy
an assessor is worth two thousand.
How would that be?
Mr. THOMAS. If those gen
eral benefits, if all the lots around
were worth as much more —
Mr. ESTABROOK. If you take
that lot I admit then you only regard
the general question, if you allow
him to keep it, inasmuch as you
have not damaged it, can you recover
damages? Mr. THOMAS. If there are any
special benefits.
Mr. LAKE. Mr. Chairman. It
seems to me that the insertion of
this word "general" would make the
Constitution in such a form, that it

would be beyond the power of the
Legislature to adopt any other rule
than that which the courts of this
state, and several other states have
adopted. I have not a doubt but that
would be the result, that it would
enforce the same construction, the
same rule and decision as has been
adopted by the courts of this state
as referred to by the gentleman
from Otoe (Mr. Mason.)
The rule has been stated two or
three times by the gentleman from
Otoe, that it would be in case of the
taking of property first, the value of
the property actually taken, then the
damage done to the remaining por
tions of the property not taken, de
ducting, if there are special benefits
accruing to that individual not en
joyed by the others in the communi
ty, adding it to the value of the pro
perty taken, which would make up
the amount of damages sustained.
Mr. STEVENSON. Mr. Chairman.
I think the insertion of that word
"general" would leave that amend
ment where it was before Mr. Man
derson moved it. I cannot see that it
would make an iota of difference. I
cannot conceive any case where there
would be benefit so special to a par
ticular party and not to others con
cerned. I claim the committee who
got this article up got it up so that
it will be satisfactory to the whole
people without an amendment, and I
think that word "general" would
accomplish the very end these men
have been fighting for.
Mr. MASON. Mr. Chairman. I
desire to say that if the word "gene
ral" is inserted the rule of damages

GENERAL BENEFITS— DAMAGES

391

Friday]

MASON

[July 14

will be fixed by the Constitution, and
it will be as I have previously stated,
and the Legislature cannot change
it. I desire further to explain the
reason of my earnest opposition to
the amendment, so _ that if it had
prevailed then the Legislature might
under the lash of the whip, or spur
of any of these corporations establish
a rule by which general benefits could
have been set off against the damage
done to the remainder of the estate,
and my own individual opinion is
that the article is right without the
word "general;" though I do not as
I said before, deem it of that danger
ous character that I did the first
amendment. And I might say I
desire to fully comprehend and un
derstand the language that was used
in the article which was re-commit
ted to the committee, most of which
was prepared by the gentleman from
Douglas, Judge Wakeley. I think I
do understand it; and the article ful
ly commends itself to my judgment
without amendment at all. And if
the committee desire to adopt the
rule which I contended for as just
this afternoon this amendment should
not prevail; and if they desire to fix
the rule as laid down in Congress
now — that is to say, to deduct special
benefits, I think it ought to pre
vail. I have been at a loss to see
what are special benefits. I am now
and I would be if I were asked to
state a case of special benefits con
ferred. It would trouble me much.
I do not know that I can do
better than to refer to the case
I alluded to in Pennsylvania in the
discussion this afternoon. It puts it

beyond question that benefits, speci
al or general, can b"e considered. If
the provision should prevail without
amendment, of course the Legislature
might say that particular benefits
might be deducted from the damage
done to the remaining portion of the
land not taken. I think the Legisla
ture might say that, if the section
were adopted as it reads, that par
ticular and special benefits might be
deducted. If the word "general"
should be inserted then there would
be nothing left with the Legislature
or anybody else. It would be fixed in
the Constitution and be the same as
that now laid down by the district
courts of this state. If the amend
ment prevail then the Legislature
may state that particular benefits to
that portion which is not taken but
damaged, that those particular bene
fits may be offset against the dam
ages done. Now, for my own part, I
have no very serious objections to
this rule, while as an individual I
never deviate from what I regard as
a right course of policy. Now I can
see some reasons, founded in policy,
why the word "general" should be
inserted, but that my views of the
rights of property, that is private
property, are that it is so sacred that
no benefits, either special or -general,
which accrue to the individual, when
the property is taken against his will,
should ever be set off against the
value of the property taken, or
against the damage done to the re
maining portion. I say I can see
no reasons founded in policy why
this should be done, but as a ques-
i tion of abstract right I might say it

392

DAMAGES— BENEFITS

Friday]

ESTABROOK— MASON

[July 14

ought not to be done.
Mr. ESTABROOK. I have listen
ed with a good deal of interest to the
statement of the views of my friend
who has just sat down; and I would
like to ask him if it was in fact in
creased in value should there be any
damage allowed
Mr. MASON. I refer the gentleman
to a case published in the Law Re
view of the City of Boston, which oc
curred in the City of Boston, I can
not place the case, nor the number of
the Review, in which the property
owenr had a residence worth upward
of $100,000 overlooking the bay, situ
ated on a high hill, and the railroad
company, in the construction of their
road made an embankment, some
hundred feet high, and cut off from
the road the property which was de
stroyed and ruined, without touching
it, and the court held there was no
remedy in the law, and when I pre
pared this argument I had this case
in view.
Mr. ESTABROOK. You say he
was injured and ruined. Suppose it
was increased in value?
Mr. MASON. Who shall say? It
was taken against his will.
Mr. ESTABROOK. Not taken at
all. Mr. MASON. It was damaged,
damaged against his will. He did
not want it; he said it was a nuis
ance. _ Mr. ESTABROOK. I supposed a
case where it was really ruined.
Mr. MASON. Now, I will put this
case, while I answer, the gentle
man. I trust he will sit still and be

content to work in the harness for a
single moment. Now, sir, property is
taken or not taken, damaged or not
damaged by the construction of the
road. If not damaged there is no
question here. Now what does he
say? He says the property was dam
aged, but he received the benefits
and I propose to offset the benefits
against the damages. I think the
committee understand me fully, and
I do not know from the vote which
was taken, that it is absolutely neces
sary that the gentleman from Doug
las should understand me. I see
what the struggle is, and so does
every gentleman in this convention.
The struggle is to say that because
the property owner derives inciden
tal or general benefits, that those
benefits shall be offset against the
damage done to the balance of the
estate. If the gentleman objects to
the word "general" he and I agree.
All I desire to say now, so that the
committee might understand if they
vote down the word "general" un
til the Legislature say the particular
benefits may be offset against the
damage done to the estate which is
untaken — it cannot be so settled. But
if the word "general" is put in this
rule is fixed and the particular bene
fits will have to be set off in every
instance. And if the word "general"
is inserted it leaves the rule fixed in
the Constitution the same as in the
courts. If the word "general" is
left out no particular benefits, in my
opinion, can be set off against the
damage done to tlie property which
is not taken until the Legislature
says it may be; and they may say it

COMPENSATION

393

Friday]

THOMAS-MANDERSON-MASON

[July 14

may be if this section shall [go into"]
the Constitution without amendment.
I shall cast my vote against the in
sertion of the word "general."
Mr. THOMAS. What I am afraid
of in this provision is that if the State
should open a street the provision
should apply. If a city opens a street
and goes through certain lots what
compensation should the owner of
these lots receive? Ought it not to
be the difference between the value
of the lots, and what the value of
the lots may have been. I admit that
where the railroad has brought bene
fits the reason which has been urged
here, may apply. Now the county
opens up a road, and a certain piece
of property, not touched may receive
certain benefits which actually in
crease the value of the property, and
should not compensation be given?
Now this is one reason why I fear
this provision; if this principle ap
plied only to railroad corporations,
I would not have this objection, but
it applies to all corporations.
Mr. MANDERSON. Mr. Chairman.
I hope this discussion will not be
pursued now. It is getting late and I
move we now adjourn.
Mr. STRICKLAND. I favor that
motion myself, Mr. Chairman, for
the reason that I would like to look
up this question.
Mr. BALLARD. Mr. Chairman. I
hope this motion will not prevail, I
hope the members of this committee
will remain until we vote upon the
question. Mr. MASON. Mr. Chairman. I hope
this motion will be voted down. 1
hope the committee will stand here

until the rising of tomorrow's sun,
if we do not come to a vote upon this
question before, unless the gentlemen
upon the other side will promise that
this matter shall not be taken up
until Monday. I have to go to Ne
braska City tomorrow, to attend to
official business and I cannot be here
to vote upon the question, as I de
sire to do.
Mr. MANDERSON. Mr. Chairman.
If the gentleman had no other time
to argue this question, I would not
insist, but the question will come up
again. The entire article is to be
adopted, and we can debate it then.
It is now after our usual hour for
adjourning. Mr. MASON. Mr. Chairman. I
am willing to adjourn, and come back
here tonight, or I am willing to pass
this over until Monday, when the
whole convention can be here. To
morrow, I am compelled to be ab
sent, and others are compelled to be
absent. I am not willing to adjourn.
I am willing to stay here until tomor
row morning.
Mr. STRICKLAND. I confess that
I have listened to this discussion
with more interest than to any other
question which has come up. What
I want is time.
Mr. ESTABROOK. Mr. Chairman.
I don't know whether we are abso
lutely controlled by the embodied
wisdom of one gentleman from Otoe.
It is time to know who runs the ma
chine. Mr. MASON. Mr. Chairman. I
regret most exceedingly that it should
be deemed advisable, upon the part of
particular gentlemen to direct their

39 i

MASON'S PERSONAL DEFENSE

Friday]

MASON— STRICKLAND— MANDERSON

[July 14

"buncombe" towards me. This has
been done in more ways than one. It
is a course of argument which I am
opposed to. I desire to avoid it; but.
if it must be continued, open your
batteries, and we will slay you with
the guns yourselves have cast. I
tell you gentlemen, I want to vote
upon this question. I don't desire
that gentlemen shall prevent me from
voting, when my judicial duties call
me away, at this time. I am charged
with dictating. Instead of dictating,
I stand here as an humble suppliant.
If there has been a dictatorial voice
in this convention, it has not been
mine. Mr. STRICKLAND. Will the gen
tleman consent to adjourn, if we say
we will discuss this question, when
the gentleman is ready.
Mr. MASON. Yes, sir. What I
desire to do now, is to repel these as
saults which have been made upon
me, and to ask you that it go no fur
ther. If I fan, I will fall with my
feet to the foe, and bear in mind, it
' is not I who have made these per
sonal allusions; and never while I
have breath, will I try to dictate to,
or influence any man, except by logic
and reason; I don't mass any se
cret assemblies to accomplish my de
signs. I stand upon what reason I
can give, and now, an humble sup
pliant, ask that this convention shall
vote down this motion to rise, but will
take a vote now, unless the gentle
men will give me a chance to vote,' at
some other time, upon this question.
It grieves me — yes sir, I am both
pained and annoyed to hear the per
sonal allusions that have been made.

I came to this convention with no
preconceived notions to gratify or
carry out. I regret that gentlemen
deem it necessary to make assault
after assault upon me. There is no
uncaged lion here, but there may be
one here who fears no danger, and
trembles at no evil which inventive
minds may suggest.
Mr. ROBINSON. Mr. Chairman. I
move that the committee do now
rise, report this article back to the
convention, with the recommendation
that it be made the special order of
business for Tuesday afternoon. I
offer this as a substitute motion.
Mr. MANDERSON. Mr. Chairman.
I would accept the amendment but
for one reason, and one only. It has
been the practice of this convention,
to take up no Article reported to
the convention unless in the presence
of the Chairman of the Committee.
When I made the motion, I did it
with no such base designs as the gen
tleman from Otoe (Mr. Mason) seems
to think. I did it in good faith. I
would certainly not be in favor of
going into this question in the ab
sence of the gentleman.
Mr. LAKE. Mr. Chairman. I
don't think it is the disposition of
any member of this convention to
take up and consider an Article in the
absence of the Chairman of the com
mittee. If Judge Mason cannot be
here tomorrow morning I certainly
am opposed to taking the Article up.
Mr. ROBINSON. Mr. Chairman. I
insist on my amendment.
Mr. LAKE. Mr. Chairman. I will
object to this amendment, for the
reason that we may have some matter

ORDER OF BUSINESS

395

Saturday]

WAKELEY-ROBINSON

[July 15

under consideration at that time and
may not wish to take this up.
Mr. WAKELEY. Mr. Chairman.
It seems to me that there is no oc
casion for this manifestation of spir
it from different parties here. I
have seen no disposition to press any
matter to a vote. I can speak for
myself and will say now I will never
vote for bringing up anything because
of the absence of any of its friends.
I care not whether he is the humblest
member of the committee or the
chairman of the committee. I see no
necessity for making this the special
order for any particular day. For
myself I can not be here on Tuesday
next. I wish to vote on this proposi
tion, but if a majority wish to bring
this on, on Tuesday let them do it.
Now, sir, cannot we address ourselves
to the work of this convention in the
spirit of business and trust each
other? Let us go back from the com
mittee of the whole and agree upon
such a plan as will take from no man
his opportunity to vote his views on
any question.
Mr. ROBINSON. Mr. Chairman.
I have a few remarks to make; inti
mations of unfairness have been re
ferred, to but I think there have been
no intentions; but one gentleman
from Douglas made a plain state
ment, he said, "you cannot choke off
in that way."
Mr. MANDERSON. Do you mean
me? Mr. ROBINSON. No sir, I mean the
gentleman on your right.
Mr. MASON. I hope the com
mittee will rise, for I feel that I can
safely trust the convention, and

have thought so all the while when I
said I would have to be absent. For
this reason I hope the gentleman will
withdraw his motion making it the
special order for any time.
Mr. ROBINSON. Mr. Chairman.
With the consent of my second I will
withdraw the motion.
The CHAIRMAN. The question is
on the motion that the committee
rise. The motion was agreed to.
Mr. GRIGGS. Mr. President. The
committee of the whole have had un
der consideration the report of the
committee on Bill of Rights and
have instructed me to report progress
and ask leave to sit again.
Adjournment.
Mr. LEY. Mr. President. I move
that the convention do now adjourn
until 9 o'clock tomorrow morning.
The motion was agreed to.
So the convention (at six o'clock
and forty minutes) adjourned.

TWENTIETH DAY.
Saturday, July 15, 1871.
Convention called to order at 9 a.
m. by the president. Prayer.
Prayer was offered by the Chap
lain, as follows:
"Almighty and allwiseGod.who art
able to command the light to shine
out of darkness, make plain before us
the path of duty, we beseech Thee.
May this convention provide well for
the State; may the work here done
be strong enough to endure the

396

REPORT OF PRISON INSPECTORS

Saturday]

[July 15

shock of parties and the wear of
years and to God, the only wise, shall
be praise through Jesus Christ, even
praise and glory for ever. Amen."
Reading of Journal.
The secretary read the Journal of

the preceding day,
proved.

which was ap-

Petitlons and Communications.
The secretary read the following
report from the Commissioners and
Inspectors of the Penitentiary.

State of Nebraska, Office of State Prison Inspector.
Lincoln, Nebraska, July 15. 1871.
Hon. 8. A. Strickland, President Constitutional Convention:
Sir: — In compliance with a resolution requesting information in regard
to the Penitentiary Lands and expenditures of the Prison, we herewith
transmit to your Honorable body the following report.
Very respectfully your obedient servants,
W. W. Abbey,
F. F. Templin,
State Prison Inspectors.
The following is a statement of lands sold prior to Nov. 30, 1870:

Part of
Section

©

0)

u

t/J

a

•^ o
a
OJ
>
o
•z.
H
«
12
14
6
4
8
6
10
8
4
6
12
9
12
8
4
12
8
4
24
12
8
8
8
3
24
12
8
4
14
6
26
y
5
4
8
6
26
8
4
10
10
5
6
8
6
12
to
5
32
8
4
10
10
5
14
9
5
8
8
ti
32
10
8
34
10
5
24
12
8
14
8
4
No. of
Acres
TO WHOM SOLD
<u
<D O
Total
¦l<
fc
$5 00
$800 00
6 50
880 00
5 00
800 00
7 00
1130 00
5 00
800 00
5 0C
800 00
5 00
800 00
5 00
3200 00
5 00
800 00
5 00
822 40
5 00
800 00
5 00
877 15
5 00
800 00
5 00
800 00
5 00
903 95
5 00
800 00
5 00
1600 00
5 00
400 00
5 00
800 00
5 00
800 00
5 00
800 00
5 00
800 00
5 00
800 00
5 20
1664 00
WHEN SOLD
swj^ nej^ .
seJi .
ne££ .
nw%.swj£
Tie% .
all of
sej£ .
neJi.ne}i ¦
seH ¦
se?4 .
swK
nwj^.sej^ .
e^ ..
e% sej^
sej£ .
neK •
161
160159
180
160 16016043-100160 160160
640160
48-100160 59-100160160 79-100
160 320 80
160
160 160
160
160320
Julia Odell 
Samuel Miller 
Theodore 8. Ganter.
John Jeffries 
H. Hurty 
John D. Lottridge . .
J. G. Dodge 
W. C. Bavown 
John D. Lottridge. .
J. M. Chapman 
J. T. Thompson 
Samuel Miller 
W. H. B. Stout 
John McManigal . . .
John T. Dillon 
John T. Dillon 
J. T. Thompson 
John McManigal . . .
Peter Mill 
John T. Dillon 
Susan M. Clute,
Mary S. Wright,
assignee 
Daniel L. Smith 
Geo. W. Boyd 
A. L. Thomas 
June 6, 1870
( • it
" 7 "
" 9 "
" 8
" 13
" 8
" 14
" 8
Sept. 28,
" 28.
June 6,
Sept. 29,
'¦ 28
" 28
June 7,
Sept. 29,
" 28
" 28
1870 a
1870
1870
1870
1870
28
2930
REPORT OF PRISON INSPECTORS

39T

Saturday]

[July 15

Statement of Lands sold prior to Nov. 30, 1870 — Concluded

Part of
Section

o
0/
•y? •M o 6

2 mPf O

SIa

No. of
Acres

TO WHOM SOLD

P. V

Total

WHEN SOLD

«

H

« 8

sej^ 
30
10
147
Samuel McClay 
7 00
1029 00
June 6, 1870
26
9
5
160
Carlton Loomis 
5 00
800 00
Sept 28, 1870
n^ 
18
8
3
311 17-100
Alpheus Hardy ....
5 00
1555 85
" 28, "
e% 
12
10
8
320 ,
Alpheus Hardy
5 00
1600 00
June 6, 1870
e% 
18
8
4
320 .
Hugh Montgomery . .
5 00
1600 00
Sept 28, 1870
e% 
30
8
4
320
Hugh Montgomery . .
5 00
1600 00
June 7, 1870
nwj£ 
10
11
3
160
Chas. F. Templin 
b 00
800 00
Oct 1, 1870
ne}£
30
9
8
160
Elizabeth Helvy . .
5 00
800 00
June 7, 1870
sej^ 
20
10
8
160
John D. Lottridge. . .
5 00
800 00
Sept 28, 1870
viJ4 nej^.
22
11
6
80
E. J. Connelly, Jr . .
5 00
400 00
Oct 1, 1870
w% sej^.
10
10
5
80
John McManigal . . .
5 00
400 00
bept 29, 1870
r' 29, "
nwj^. . .
12
10
5
160
Addie Beecher
5 00
800 00
e% ......
28
10
5
320
W.W.Holmes and
S. P. Briggs 
5 00
1600 00
" 28, "
wK ¦• •
6
1?
9
328 30-100
Truman Buck 
6 00
1969 80
Oct 1 , 1870
W
11
6
160
Samuel Patterson 
5 00
800 00
eH 
20
8| 4
320
W. H. B. Stout
5 00
1600 00 Sept 28, 1870
Total  $41,630 76
Number of acres appropriated.
Number of acres sold 
32,044.00
. 8.111.76
Number of acres remaining unsold
.23,931 21
398

REPORT OF PRISON INSPECTORS

Saturday]

[July 15

Statement of Lands Sold Since Nov. 30th, 1870

Part of
Section

se}£.. ntf.-. swi£
se^.. $h •-
ej*. •
nw)^ne% •
¦w% ..
se>4 . .
ne>4 .
swJi .
se>i .

n% seK-
neJine}4

ne}4

e% ne'i .
sj^ nel4.
"^ se,^ .
s^ 
sei^ 
WX2 sw^'
z% 8w!4.
nw3t ¦•¦*¦¦
seJ4 

M ..

nw
s yz

11074 ¦
nwj^

- - - x^t ¦
nwjf .
sej^
s>£ nwj£
n)^ nw.1^
WJ3 SW>4

ww^n^
SW'4
se^ w1^
nel;

sw'j .

99
_ 9
2810 2118 11
2
8 _
6 10
28 10
2810
3011
. 22 8
. 22
2228
. 6
. 22 10 10
14

No. of
Acres

81
1410
_10
24 10
24 10
24 10
26 10
26 10
24 12
28 12
32 12
2 "
26

26 1212
14 14
2020
20 ^0
22
28
32 „
10 11
18 11
22 11

TO WHOM SOLD

160 HC Riorden, Bracken
320 Thomas Doane 
160 Eion Percy 
160 Claudius Jones 
320 Elon Percy 
320 R B Packard 
159.44 W W Wilson 
160 ' Edgar Holmes 
325.14 Thomas Doane 
160 Elon Percy 
160 W J Everhart 
160 Henry Eaton 
160 A R Wightman...
160 J H Courter  ,
80 J J Hochstetter . . .
80 J J Hochstetter...
160 J J Hochstetter....
160 W W Holms 
167.48 WW Holmes 
80 S F Shaw 
80 Peter Campbell 
80 Wm J Miller 
320 Geo R Swallow 
160 C Bowker 
80 W J Miller 
80 J R Vanmeter 
160 W W Wilson 
160 DJ Quinby 
160 Wm Oailey 
320 C Bowker 
320 D J Quinby 
147.84 John H Bracken. ..
160 Prentiss D Cheney,
160 J N Echman 
160 D A Sherwood 
160 D A Sherwood 
160 W R Phillips 
160 W R Phillips 
80 Joseph Jones 
80 Alexander Rose 
80 Edgar Jones 
80 Wm Jones 
320 Phillip Rhodes 
320 J J Hochstetter 
160 S F Shaw 
160 Jane Sarzitin 
314 52 W W Wilson 
160 Elon Percy 

Total

3 00
4 15
4 10
5 00
4 50
3 85
3 85
3 60
3 25
3 25
3 25
3 50
3 35
4 95
3 00
3 00
3 00

592
1296 768
504
14721296 478 664
1333 800 720616
616576260
260520
560 561
396
240
240 960560
280280
480480
560
1280 960 590
656808640592
808 768
372
372372
372
12961344 592648
1100 576

00 00
00
0000
0032
000700
0000
0000
0000 00
0005
00
00 00
00
00000000
00
00 00
00 16
00
000000000000
00 0000
000000008200

WHEN SOLD

May I,
1. 1,
3, 1,
1,
3, 1.
1,1, 1,
1, J,

1871

t t

•)

'2
2 9
-)
2,
June 8,
" 8,
Mayl, 3,
3,3,3,3,
3,
June 8,
Mayl, " 2,
<< 9
" i;
" 1,
" 2,
" 2
T" !'
June 8,
May 1,
' 1, 1,
1, 2,1, L
June 9,

Mav 2, "

REPORT OF PRISON INSPECTORS

399

Saturday]

[July 15

Statement of Lands Sold Since Nov. 30th, 1870

Part of
section

nwJ4\sw34 .
sw% .

nej£.

n}£ sej4 . .
s% seJ4 . .
swj^ 
s% ¦ . 
e^ 
seJi 
swj^ 
nw^ 
w% 
w^ 
nw}| 
sw}4' 
nw.| 
ne^ 
se% 
seJi 
neJ4 
eV2 
n% 
*K- 
w% 
sH 
sw^ 
all 
n^ 
*>% 
e^ 
^A 
e^ 
n1^ 
eK 
«H 
s^ 
w^ 
wJi 
nw3^ 
e% 

00
0
-A

3 to B
O

6

M

8

14

10

14

14

14

22

15

34

15

34

15

34

15

8

9

14

9

18

9

20

9

22

9

22

9

28

9

34

9

2

10

2

10

4

10

4

10

•>¦>

10

2

10

10

10

14

8

8

9

26

9

10

9

24

9

2

14

10

8

6

9

34

9

2

10

8

10

34

10

10

10

2

8

4

8

2

10

14

11

22

8

14

11

32

9

12

8

No. of
Acres

TO WHOM SOLD

160 160160
160320160 8080
160320 304.
160 160
160320320 160 159.
158. 158.
160 160160 80
320 320
320320320 160
653.320321.320320 320
337.328.318.320320320160320

43

Edmund Millett 
Edmund Millett 
Geo H Stocking 
Moses Stocking 
H C Riordan and
John H Bracken. . .
Thos and Michael
Barry 
Thos and Michael
Barry 
W W Wilson 
C Bowker 
C Bowker . ...
Freione A Benton...
J J Hochstetter ....
James M Chilton ...
James M Chilton 
J J Hochstetter 
J J Hochstetter 
M L Wheeler and 0
F White 
Geo W White 
Albert F Smith 
C Bowker 
J G Meak 
M L White 
Joseph Lovelace 
S F Shaw 
T B Wallis 
J W Sibley 
Jeff Shicken 
Jeff Shicken 
W H B Stout 
John D Lottridge....
Ira Davenport 

Wm Daily.

u
ii

3 50

3 00

4 30

3 50

3 50

4 50

4 50

4 50

4 05

3 50

4 00

4 30

4 20

4 00

4 60

4 30

3 25

3 25

3 00

3 00

3 50

3 50

3 50

4 10

3 75

4 30

3 70

3 80

4 00

3 55

4 00

3 70

3 70

3 50

3 80

3 50

4 30

4 30

5 00

3 75

4 10

4 10

4 85

3 50

Total

560 00
480 00
088 00
560 00
1120 00
720 00
360 00
360 00
648 00
1120 00
1217 72
688 00
' 672 00
640 00
1472 00
1376 00

WHEN SOLD

520511474474560560480328
12001376118412161280 568
26141184 1189
112012161120
14441411 15941200
1312 1312 776
1120

June 8, 1871
May 1, 1871
" 1,

" 1,
!' x'
" 2,
" 3,
" 2,
" 1,
" 1,
" h
" 1,
" i,
k 2
" 2
:: I
June 8,
May 2,
" 1,
" 1,
June 3,3,3,
3,
3, 3,
3,3,3,
3, 3,
3, 3,3, 33,3,3,3,3,

400

REPORT OF PRISON INSPECTORS

Saturday]

[July 15

Statement of Lands Sold Since Nov. 30th, 1870

Part of
Section

SW>4 
w^ 
neM 
?wM 
swii' 
neil 
e^ 
¦n% nv/ii.
aVz nwj^.
swj^ 

se^.sej^.sej^ .

se.V--
ne%..swJ4 .
swj^ .
nw^.
all . . .
njtf...
nwj^. v,ya..

«

03

p.

cu

a

•w o
a
o
o
a
'A
H
«
6
10
5
4
11
6
10
11
6
10
11
6
8
8
6
6
7
7
8
8
5
14
8
7
14
8
7
14
8
7
10
11
7
18
8
6
6
11
3
22
9
3
22
9
3
6
12
9
26
11
3
26
11
3
10
8
7
10
8
7
4
11
3
8
7
7
6
7
7
•i
9
8
18
14
7
No. of
Acres
154314160 160
160
160320 80
80
160 160
160
' 160
160
160160160
160 160160
639. 320
154. 318.
320
48
TO WHOM SOLD
Ira Davenport.
S F Shaw 
D G Matthews and R
K Shaw 
D G Matthews and R
K Shaw.... 
Jane Sarzitin 
Daniel S Baker 
W W Holmes 
Sarah, Percy and Sar
ah S Parker 
H C Riordan 
C F White 
C F White 
Mima J Ruby
W P Ensey
C F White 
W P Ensey . . . .
S W Gi'christ
P-0;
'£*<Pm
7575
505550
80
3 50
4 10
4 10
4 10
4 25
4 50
3 65
4 55
4 55
5 25
3 70
4 00
4 05
732 04
1180 91
560 00
568 00
720 00
699 82
1120 00
328 00
328 00
656 00
680 00
720 00
584 00
728 00
728 00
840 00
592 00
640 00
648 00
648 00
3196 00
1040 00
665 20
1132 00
1120 00
WHEN SOLD
" 3
" 3
" 3
" 3
" 3
June 8
RECEIPTS
From sale of lands to June 30, 1871  $136,037.41
EXPENDED
Paid in the construction of the penitentiary and the necessary in
cidental expenses from the funds arising from the sale of lands 87,946.81
Balance in the state treasury June 30, 1871  $49,090.61
Paid for erecting temporary penitentiary as per special appropri
ation approved March 4, 1870  $ 5,000 00
Total amount expended to June 30, 1871  $ 92,946.81
No. acres of land appropriated for penitentiary purposes  44,795.06
No. of acres sold to June 30, 1871  32 438.10
Remaining unsold  ...12,356.96
Average price per acre  I 4 iq§
W. W. Abbey, Inspector.
F. Templin, Inspector.
REPORT OF PRISON INSPECTORS 401

Saturday] [July 15

Nebraska State Prison, Warden's Office, Lincoln, Nebraska. June 1, 1871.
To the Honorable Board of Inspectors:
Gentlemen: — In compliance with your request I herewith submit to
you a condensed statement of the affairs of this prison from December 1st,
1870 to June 1st, 1871 : CASH RECEIPTS
Dec. 26, 1870 Lancaster county, account keeping prisoners  $ 69.60
Feb. 1871 Gate receipts for months of Dec, Jan. and Feb  12.55
Feb. 28,1871 Received of H. Ashman on account of merchandise  9.10
April 1871 Gate receipts March and April  15.75
Gate receipts May  ,  12.85
May Received on account of boarding foreman  18.25
Total  $138.10

ASSETS
Due Nebraska State Prison
Stout & Jamison, convict labor  $2,000.75
Lancaster county, keeping county prisoners.  14.41
James M. Jamison  9.25
Hamilton- county, to keeping prisoners  257 30
Amount of property as per inventory  T  2,873 65
Total  T$5^155.36
Dec. 1. Number of prisoners in confinement 1870  33
Received since Dec. 1st   12
Pardoned  ?
Escaped  10
Remaining..:  *°
EXPENSES
December 1870   $1,314.58
January 1871  T'^H?
February "  )']tl}i
March "  M?H?
Anri| "  1,657.74
May «¦ :::::..:  • l^.w
Total  $ 8, 552 . 45
Expenses over receipts for year ending Nov. 30, 1870  10,076.81
Total expenditures since July 1870  $18,628.12'
26

402

REPORT OF PRISON INSPECTORS

Saturday]

[July 15

List of Officers and
No. 1. T. C. Fielding, Warden
Leroy Royee, Deputy
A. Patterson, Physician
J., J. Roberts, Chaplain
Chas. Whipple, Guard
Joseph S. Phebus, Capt. Night watch
S. W. Sheridan, Night watchman
H. Higly,
Jas. Brown
R W. Fielding "
Walter C. Snow, Gate
Wm. Dilworth, Picket
W. A. H. Coday, '/
Thomas Rrown

Salaries of Nebraska Prison.
(per month)

10.

$125 00
75 00
75 00
25 00
35 00
50 00
35 00
35 00
35 00
35 00
30 00
30 00
30 00
30 00
30 00

11. Winson Hunt, Gardner
Since making up the above list I have decided to cut off two of the number
and thus reduce our number of guards to eight and dispense with the gard
ener. I am satisfied after my short experience here that this number
will be sufficient for the safety of this institution. T. C. FIELDING, Warden.

The Secretary read the following
communication: Omaha, Neb., July 12, 1871.
Honored Sir: — Your official com
munication addressed to the State
Board of Immigration embodying the
resolution of the Constitutional Con
vention of Nebraska was duly re
ceived, and in response thereto, I
beg to say that, as far as the resolu
tion may be construed to apply to the
office of State Superintendent, I shall
be pleased to reply immediately after
the meeting of the Board of Immigra
tion, which convenes 20 th inst.
In meantime I have the honor to
be your most obedient servant,
J. H. NOTEWARE,
State Supt. Immigration,
State of Nebraska.
To HON. S. A. STRICKLAND,
Prest. Constitutional Convention,
State of Nebraska.
The Secretary read the following
communication: To the Hon. the President of the
Constitutional Convention.

Sir: — I have the honor to inform
you, and through you, the honorable
Convention over which you preside
that I have had placed in my custody
100 copies each of "Woodhull &
Claflin's Weekly." and "The Revolu
tion," for the use of the Convention,
and which are at their disposal.
Lincoln, July 15, 1871.
MRS. LYDIA BUTTLER.
President of the Ladies' Suffrage
Society, State of Nebraska.
Mr. ESTABROOK. Mr. President.
I move you, sir, that the thanks of
this Convention be returned to the
donors, and that the clerk be directed
to receive the papers for the use of
such members as desire to see them.
The ayes and nays were demanded,
with the following result: Ayes, 26;
noes 16— As follows:

Ayes.

Ballard,

Granger,

Cassell,

Kenaston

Curtis,

Kilburn,

Estabrook,

Lake,

Kirkpatrick,

Gibbs,

WOMAN SUFFRAGE

403

Saturday I

McCANN-CASSELL

[July 15

Lyon,

Price,

McCann,

Reynolds,

Majors,

Shaff,

Manderson,

Speice

Maxwell,

Stewart,

Moore,

Thummel,

Neligh,

Thomas,

Philpott,

Tisdel,

Nays.

Abbott,

Scofield,

Campbell,

Sprague,

Eaton,

Stevenson,

Gray

Towle,

Griggs,

Vifquain,

Hinman,

Wakeley,

Parchin,

Weaver,

Wilson,
Absent and Not Voting.
Boyd, Robinson,
Mason, Hascall,
Parker Newsom,
Grenell, Woolworth,
Myers, The motion was agreed to.
Mr. McCANN.' Mr. President. I
move that the further order of busi
ness be dispensed with and that the
Convention resolve itself into com
mittee of the whole to discuss the
report of the committee on future
amendments. Female Suffrage.
Mr. CASSELL. If the gentleman
from Otoe (Mr. McCann) will give
way for a moment, I have a memorial
to present.
Mr. McCANN, I give way for the
present. The secretary read the memorial as
follows: To the honorable Constituti
onal convention of the State of Neb-
braska. The undersigned, your memorial
ists, respectfully demand that in the
constitution now being framed, pro

vision shall be made for extending to
females, precisely as to males the
right of sufrage. In support of this
demand, we respectfully submit the
following propositions:
1st. By the fourteenth amend
ment to the Constitution of the Unit
ed States, the complete citizenship of
females, as well as males, is declared;
and by the fifteenth amendment the
right of all citizens to vote is distinct
ly affirmed.
2nd. Females are governed ex
actly as males. To do this without
their consent is unjust. The only
method of declaring such assent is
through the ballot box.
3rd. Females are taxed in all re
spects precisely as males. Represen
tation as a corollary to this liability
is demanded by principles lying at
the very foundation of Republican
government. 4th. Negroes have been elevated
from the degredation of slavery to
the plane of respectable citizenship
by the ballot, and it is universally
conceded that the cause of civilization
and republican government has been
advanced thereby. In our opinion
the mothers, wives and sisters of the
State are no less worthy the privi
leges of complete citizenship.
5th. Lunatics, idiots and chil
dren, by reason of immature intel
lect, together with such persons as
are convicted of infamous crime, are
excluded from the privileges of the
ballot. We deem it an indignity, illy
deserved, by females exempt from
these disabilities, to be placed ir
revocably and by constitutional law
in this category of incompetent per
sons and outlaws.
6th. Emigrants from the old
world, never admitted to the right
of suffrage in their native country,
and wholly unused to the contempla
tion of matters of governmental con
cern, are allowed the privileges of
the ballot six months after landing
on our shores. A recognition of the

404

SELECTION OF PAGE

Saturday]

PRICE— L AKE— PHILPOTT

[July 15

superiority of these to the intelligent
native born women of the State by
our fundamental law is an indignity
against which we respectfully but
most earnestly protest.
For these among other reasons, we
ask this our prayer be granted:
Mrs. Lydia Butler, Mrs. Jennie Cas
sell, and 71 others.
Mr. BOYD. Mr. Chairman. I
move to refer the petition to the
Committee on Rights of Suffrage.
The motion was agreed to.
Resignation of Page.
Mr. PRICE. Mr. President. I wish
to offer a resolution. The secretary
read the resolution as follows:
Resolved, that this Convention
dispense with the services of Master
Whitesides, as page.
Mr. STEWART. I move its adop
tion. Mr. TOWLE. Mr. President. I
would like to hear from the mover
of the resolution, his reason for of
fering it.
Mr. PRICE. My reason is that
we want a page who will pay a lit
tle more attention to the business on
this side of the House.
Mr. LAKE. Mr. President. It is
disagreeable to me to say anything
favoring a resolution of this kind, but
it is well known on this side of the
House, that almost ever since the
commencement of this convention,
we have been practically without the
services of a page; while the young
man upon the other side of the House
(Master Odell) has been very atten
tive, we have had great difficulty in
having our matters attended to. If
we desire anything from the other
side of the house it is hard to get the
attention of the page, and we gener

ally have to go ourselves. Yesterday
afternoon he was absent a great por
tion of the time, and several times
during the afternoon I had use for
papers and books which were on the
other side of the House, and was
compelled to pass between the gen
tlemen on the floor and the chairman.
All this is very disagreeable. We
want the service of a young man who
will be very prompt and attentive
during the sessions of this body;
one who will be ready at the call of
any member of the convention. These
are the reasons; there are others,.
which, perhaps might be urged but.
I prefer not to mention them.
Mr. PHILPOTT. Mr. President.
With regard to Master Whitesides, I
will say that he wishes to resign. I
will say further that he has had no-
one to look after him, or call his at
tention to his duties. If it had been
he would have been more attentive.
I move that the resignation of Mas
ter Whitesides, as page to this con
vention be accepted.
Motion agreed to.
Election of Page.
The PRESIDENT. The question is
upon proceeding to the election of a
page. Mr. CAMPBELL. Mr. President.
I move that we elect by acclamation
Master Wakeley.
The motion was agreed to.
Mr. WILSON. I move that a vote
of thanks be offered to our young
gentleman on this side of the House,
(Master Odell) for his faithfulness.
Mr. HINMAN. He may not do so
well afterwards.
Mr. WAKELEY. Mr. President..

ELIGIBILITY FOR OFFICE

405

Saturday]

WAKELEY-ESTABROOK— CASSELL

[July 15

with the consent of the Convention,
I feel like thanking the convention
for the selection of the young boy
whom they have seen fit to elect. I
hardly think it necessary to say
that my connection with this Conven
tion had anything to do with his
selection. If I thought it had I
should feel bound to deny it.
Mr. CAMPBELL. Mr. President.
I thought nothing about it until this
matter was brought up, and saw the
young man here and I noticed he was
a bright and active boy.
Mr. ESTABROOK. This young
man, (Master Wakeley) lives near
my home, and he and his father have
roomed with me since he came down
here and I am satisfied he did not
come here to get office. He is called
"Toodles" and all you will have to
do is to call "Too" and he will come.
Unfinished Business.
The secretary read a resolution
offered by Mr. Cassell as follows:
Resolved, That it shall not be
lawful for any member of this con
vention to be a candidate for any
of the offices created or provided for
in this constitution for the period of
one year.
Mr. TOWLE. Mr. President. I
move the resolution be referred to the
committee on schedule.
Mr. PHILPOTT. Mr. President.
I move the resolution be laid on the
table. Mr. ESTABROOK. I hope that it
may go to a committee as it is a mat-
tre of more importance than might
seem at first sight.
Mr. NEWSOM. "What is the mat

ter with you " (Laughter.)
The PRESIDENT. The question is
on laying on the table.
The "ayes" and "nays" are de
manded. The secretary proceeded to call
the roll.
Mr. PHILPOTT, (when his name
was called, said,) Mr. President, I
rise to explain. There is a gentleman
here which I wish to vote for for
chief justice, and another for gover
nor, therefore I will vote "aye."
The vote was taken and the result
was announced — "Ayes," 8 "Nays,"
35- — as follows:

Ayes.

Abbott,

Philpott,

Campbell,

Scofield,

Gibbs,

Shaft,

Granger,

Wilson, — 8.

Nays.

Ballard,

Maxwell,

Boyd,

Moore,

Cassell,

Neligh,

Curtis,

Parchin,

Eaton ,

Price,

Estabrook,

Reynolds,

Gray,

Robinson,

Griggs,

Sprague,

Hinman,

Spiece,

Kilburn,

Stewart,

Kenaston,

Thummel,

Kirkpatrick,

Thomas,

Lake,

Towle,

Ley,

Tisdel,

Lyon,

Vifquain,

McCann,

Wakeley,

Majors,

Weaver. — 35.

Manderson,

Absent

or Not Voting.

Grenell,

Parker,

Hascall,

Stevenson,

Mason,

Woolworth,

Myers,

Mr. President.

Newsom,

406

AMENDMENTS TO CONSTITUTION

Saturday]

McCANN— BALLARD

[July li

The PRESIDENT. The question
now is upon referring to the commit
tee on Schedule.
The motion was agreed to.
Leave of Absence.
Mr. WAKELEY. Mr. President.
I ask leave of absence until Wednes
day next.
Leave granted Nem. con.
Committee of the Whole.
Mr. McCANN. Now Mr. Pres
ident, I renew my motion to go into
Committee of the. Whole on the re
port of the Committee on Future
Amendments. The motion was agreed to.
So the Convention in the Commit
tee of the Whole — Mr. Reynolds in
the chair — proceeded to consider the
report of the committee on Future
Amendments. The secretary read the report as
follows:Report of the Committee on Amend
ments.
By Mr. M. Ballard, Chairman
Mr. PRESIDENT:
Your Committee on Future Amend
ments beg leave to present the fol
lowing, and would respectfully
recommend that the same be adopted
by the convention:
Any amendment or amendments to
this constitution may be proposed in
the senate or house of representa
tives, and if the same shall be agreed
to by a majority of the members
elected to each house, such proposed
amendment or amendments shall be
entered upon their journals, with the
yeas and nays taken thereon, and the
Secretary of State shall cause the
same to be published three months
before the next election in at least
one newspaper in every county in
which a newspaper shall be publish

ed, and if in the legislature next af
terwards chosen such proposed
amendment or amendments shall be
agreed to by a majority of the mem
bers elected to each house, the Sec
retary of State shall cause the same
again to be published in manner
aforesaid, and such proposed amend
ment or amendments shall be submit
ted to the people in such manner and
at such time, (at least three months
after being so agreed to by the two
houses,) as the legislature shall pre
scribe; and if the people shall ap
prove and ratify such amendment or
amendments by a majority of the
qualified voters of this State voting.
thereon, such amendment or amend
ments shall become a part of the con
stitution; but no amendment or
amendments shall be submitted to
the people oftener than once in five
years; provided, that if more than
one amendment be submitted they
shall be submitted in such manner
and form that the people may vote
for or against each amendment sepa
rately and distinctly.
Sec. 2. Upon the expiration of
twenty-five years from the adoption
of this constitution, or any year
thereafter, the legislature may pro
vide by law for the submission of the
question: "Shall there be a con
vention to revise or amend the con
stitution?" and should a majority
of the legally qualified electors voting
thereon decide in favor of calling a
convention for such a purpose, then
the legislature at its next meeting
shall provide by law for the election,
qualification and pay of delegates to
such convention.
We, the undersigned, would re
spectfully represent that we cannot
concur with the majority of the com
mittee as to the second section herein
reported, for the reason that we be
lieve that the first section contains
all that is necesary on the subject of
future amendments.
M. BALLARD
J.OHN C. MYERS.

AMENDMENTS TO CONSTITUTION

407

Saturday]

WILSON— BALLARD

[July 15

Mr. WILSON. Mr. Chairman. I
wish to amend the first section by
striking out the words "three months"
wherever they occur and insert the
words "six months." There are a
great many people in our state who
do not take the papers and would not
hear of the amendment when the
time had expired.
Mr. KIRKPATRICK. I am willing
to assert that all citizens of Nebras
ka will become acquainted with it in
less than six months, and if we ad
vertise it that time, it will cost a
large sum of money.
Mr. THOMAS. I would like to
enquire from the chairman of this
committee, from the Constitution of
what state does the section come.
Mr. BALLARD. Mr. Chairman. I
remark for the information of the
gentleman that it is virtually copied
from the constitution of the state of
Pennsylvania, and while I am up I
will state I hope the amendment will
not prevail. It would incur an un
necessary expenditure of money to
the people. How does this article
propose an amendment. An amend
ment must pass through two legisla
tures before it is submitted finally to
the people for a vote. It must be ad
vertized three months in every coun
ty in the state in which there is a
newspaper published. It seems to
me that by that time the people will
understand what the amendment is,
if not my constituents are much more
ignorant than I imagined they were.
The process is slow but sure, and I
hope the amendment will not pre
vail. As I understand it, the aim
and object of this convention has

been economy. I hope they will car
ry it out.
Mr. LAKE. It seems to me that
the proposed amendment is entirely
unnecessary and will increase the cost
very much. This section now pro
vides that amendments shall pass on'e
legislature, it must be agreed to by
a majority of the members elected
to each house, senators and represen
tatives. Then it is to be published
three months before the next election
for members of the legislature, that
brings it before the people and they
elect their senators and representa
tives with a special reference to the
proposed amendment to the constitu
tion. Then it must again pass the
legislature, an entirely new body,
fresh from the ranks of the people,
chosen by the people, with the under
standing that the same is again to
come before the legislature for their
approval or rejection. If the suc
ceeding legislature, after it has been
published for three months next pre
ceding the election, shall again pass
the proposed amendment it will be
pretty certain that the people have
acquiesced in it, but to be certain
that they have, after it has passed
the second legislature, it is again
published for three months and sub
mitted to the people for their rati
fication, so that it seems to me that
all the safeguards necessary to throw
around the amendment of an organic
law is here provided for. There can
be no surprise to the people, it is to
be published for three months in all
the counties in the state where a
newspaper is published, and the peo
ple must become conversant with the
proposed amendment. They then go

408

AMENDMENTS TO CONSTITUTION

Saturday]

ABBOTT— TOWLE— WAKELEY

[July 15

to the polls and elect their represen
tatives, instructing them in their con
ventions whether they favor the pro
posed amendment or not. Their rep
resentatives then either endorse or
reject the action of the preceding leg
islature. This being done, if it is re
jected, there is an end of it, if they
confirm the action of the preceding
legislature and again vote for these
amendments to the Constitution, it
is again published and the people
must either adopt or reject them.
I can find no fault with this provis
ion, indeed, it seems to have received
a good deal of consideration where it
was first adopted and to have com
mended itself to all the members of
the committee who have had this sub
ject under consideration. We have
as to the first section the report of
the entire committee on Amendments
to the Constitution. I seconded this
amendment for the purpose of bring
ing it before the committee, but can
not support it.
Mr. ABBOTT. I move as a substi
tute for the amendment, to strike
out from the word "manner" in the
ninth line to the word "as" in the
tenth line, and add after the word
prescribe the words "at the next
general State election."
Mr. WILSON. As it seems to me
to be contrary to the wish of this com"
mittee, I do not wish to be contrary;
but I feel that even in the last adver
tisement for this convention suffici
ent notice was not given. If this was
so that notice could be given in all the
languages used in the state I would
not make this amendment. But I
will withdraw my motion to amend
entirely.

Mr. TOWLE. I do not think this
motion of the gentleman from Hall
(Mr. Abbott) will commend itself to
the consideration of this body. There
may be amendments proposed by the
way desired by the people that shall
be of that character that they should
not be submitted at a general elec
tion. The legislature might adjourn
by the month or a few days previous
to the next election, it might be a
general or called session, and conse
quently the time would be too short.
Mr. BALLARD. I hope the mov
er will explain to this Convention
what he means ty the general elec
tion. How will his amendment chime
in? Mr. WAKELEY. I wauld like to
say a word in favor of the amend
ment. It seems to me a very neces
sary and proper amendment. As the
section now reads the legislature are
left entirely to their discretion in re
gard to the time when the proposed
amendment shall be submitted to
the people. It seems to me very
clearly that it is better it should be
submitted at a general election,
where there will be a full vote polled.
Everybody knows it is almost impos
sible to secure a full vote at a special
election held for any special purpose.
And for amendments to the Consti
tution, involving a change in the or-'
ganic law as every amendment does,
at a general election, where the
greatest number of voters assemble
at the polls, is the best time. I can
hardly imagine a case in which it
will be necessary to act upon the pro
posed amendment so speedily as to
require a special election to be hold
en for that purpose. I object to the

AMENDMENTS TO CONSTITUTION

409

Saturday]

WEAVER— PRICE— BALLARD

[July 15

constitution of the state being chang
ed at a special election for the reas
on that it may result in adopting an
-amendment which does not agree
with the sentiment of a majority of
the voters. We all know, as a practi
cal matter, what the result of a special
-election is. That those particular
ly and specially interested in carrying
the matter which is proposed, will be
active in rallying voters at the polls,
while, very often those who are real
ly opposed to it and would vote against
it. if they were at the election, do
not act with the same zeal and un
der the same stimulus and incentive
as those who have proposed the
amendment and gotten the machinery
in operation to carry it. These are
my reasons for favoring this amend
ment. I should dislike very much to
see this section adopted in its pres
ent form.
The CHAIRMAN. The gentleman
from Hall (Mr. Abbott) makes this
amendment — add after the words
"manner" in the ninth line, the words
"at a general election" and strike out
the words "and at such time."
Mr. WEAVER. I can see very
well, that under the steam and force
generally put in motion at these gene
ral elections, a reason why the
amendment should not be submit
ted to the people at that time. I
think it should be, in all instances
proposed at a special election. For
that reason I shall vote for the arti
cle as it now stands.
Mr. PRICE. I hope the article as
submitted by the committee will not
be changed. It seems to me it is suf
ficiently comprehensive and subserves

the interests of the people in the
manner reported, as it would be if
it were changed. In this we find
the manner and time for submitting
the proposed amendment is left dis
cretionary with the legislature. I
think it is wise and best. It seems to
me that if there is not sufficient spirit
to turn out at a special election there
would not be sufficinent to do it at a
general election. I shall vote for the
article as it stands.
Mr. BALLARD. I wish to answer
one or two arguments offered by my
learned and honored friend from
Douglas, (Judge Wakeley). His ar
gument in favor of the amendment
seems to be about this — that if the
article or section is passed as it came
from the hands of the committee
that there will be danger of the
legislature bringing about a pre
mature action, and the adoption of
some dangerous article. Now sir, I
do not know whether the remark
which has gone the rounds in the
newspapers is true or false, which
says, that this Convention is the em
bodiment of the wisdom of the state
of Nebraska. For the sake of argu
ment I will say it is true. Then I
will apply that in this case, and ask
him how long did the people of Ne
braska have to look up this conven
tion? Was not done very hastily? But
I apprehend the argument is not well
founded for this reason. It seems to
me this section, in this regard, es
pecially guards against this thing.
This is a question upon which they
elect their representatives and sena
tors, therefore I am certainly op
posed to the amendment, and hope

410

AMENDMENTS TO CONSTITUTION

Sf»~

Saturday]

ABBOTT-MOORE

[July 15

it will not prevail.
Mr. ABBOTT. Mr. Chairman. I
think that the reasons given for the
conclusion to which the gentleman
arrives are unwarranted. He will
agree with me, that the vote calling
this convention together, was a very
slight one. We want a full expres
sion from the people of this state on
these questions, and for this reason, I
want them voted upon at a general
instead of a special election.
Mr. MOORE. Mr. Chairman. As
I was a member of the committee on
Future Amendments, I took some
time in considering the subject now
being discussed, not only in selecting
the language there used, but also in
examining this particular section in
the constitution of other states. I
think — so far as I can remember —
that we all agreed upon this point.
I have only a few words to say. In
the first place, the people are the only
ones to be consulted in this matter,
if they get what they want, conven
tions and legislatures may go for
naught. They have only to ask for
what they wanti and I think they will
get it. I think the provision sought
to be inserted in this constitution,* is
sufficiently clear and explicit. If an
amendment is sought to be proposed
to this constitution, in the future, the
legislature, in either house, may pro
pose the matter. The members are
elected by the people, and they are
supposed to understand the wants of
the people. This proposition goes
before the people in an advertisement
of three months, and in that time,
every man, woman and boy in the
state can read it. It does not take

the people of this state three months
to find out anything that the wisdom
of the legislature may present before
them. Next it comes before the leg
islature, chosen by the same people,
and a large proportion of that legis
lature is chosen expressly upon this
question. It then goes before the
people in another advertisement of
three months, for the people to read
and make their endorsement there
on. Then it goes before the people
to be voted upon. It has been urged
here that a general vote of the people
cannot be had except at a general
election. Let me tell you that if it
is a matter in which the people of
the whole state are interested, they
will turn out and vote, whether it is
at a special or general election. I
am satisfied that where you have the
passions, and party feeling of men
excited they will vote upon this ques
tion less intelligently, than they will
at a Special election when party feel
ing does not come in and when there
is but one question to be voted upon.
I am in favor of letting this section
stand. I believe it will serve a good
purpose in the constitution. I did
object to the live years provision,
but now I believe that is right.
Mr. ROBINSON. Mr. Chairman.
While I have no doubt that the com
mittee who prepared this article in
the constitution, prepared it deliber
ately and very carefully, I am still
inclined to favor the amendment of
the gentleman from Hall (Mr. Ab
bott.) If I thought every amend
ment which is proposed to our con
stitution would be favorable to a par
ticular party's- views, I would be in

AMENDMENTS TO CONSTITUTION

411

aturday]

ROBINSON— THOMAS— BOYD

[July 15

favor of submitting the question to
the people, at a general, instead of a
special election. People do not turn
out at special elections. I know that
a proposition to vote fifty thousand
dollars was voted upon at a special
election in our town a few days ago.
I was opposed to the proposition.
But the fact is, I forgot all about the
election, and did not vote at all, and
the bonds were voted upon us. Now,
if it had been at a general election,
and I had been anxious to carry some
particular party principles, I would
have been sure to have gone. The
question was of sufficient importance
to call out a general expression of the
views of the people, but it did not. If
a man comes to the polls in order to
support his party candidate, it is very
easy for. him to vote upon certain
propositions which may be submit
ted, but if they are submitted at a
special election, he is almost certain
to forget it. If one party is trying to
carry a particular project, then they
will turn out and vote. I think it
ought to be submitted at a general
election. Mr. THOMAS. Mr. Chairman. I
am in favor of this vote being taken
at a general election. We all know
that even in general elections, where
there is no particular party measure
to secure, it is hard to get people out,
and at a special election when no par
ty measure is at stake, it is impos
sible to get them out. If we allow
the legislature to provide that this
matter is to be submitted at a special
election, it seems to me the people
of the country — the farmers general
ly will not turn out. I know in a

town, the people do turn out. I be
lieve if this is submitted at a special
election we leave the question to be
decided by the people of our cities
and towns. I know of no more im
portant question, of a people chang
ing their constitution. For these
reasons, Mr. Chairman, I am in fa
vor of inserting the words, "at a
general election." I believe this plan
has been adopted in most of the other
states of the Union. Even if those
words are not inserted, words of
similar import are — that it should be
an election at which members of the
legislature are elected, as our consti
tution now stands at the present
time, it requires — I will read part of
the section on "Amendments."
"If at any time a majority of the
Senate or House of Representatives
shall deem it necessary to call a con
vention to revise or change this con-
constitition they shall recommend to
the electors to vote for or against
a convention at the next election for
members of the legislature."
This amendment leaves the consti
tution with regard to this point, as
our present constitution provides.
I believe at special elections there
is scarcely ever a full vote, and I
don't believe the people will turn out
in full for this purpose at a special
election. Therefore I am not in favor
of leaving the matter to the legisla
ture. Mr. BOYD. I would ask the gen
tleman from Washington( Mr. Bal
lard) whether under this article the
question may not be submitted at a
general election.
Mr. BALLARD. I think so sir.
Mr. BOYD. I am in favor of sub-

412

AMENDMENTS TO CONSTITUTION

Saturday]

BALLARD- ROBINSON— BOYD

[July 15

mitting it at a general election. I
move to strike out all after the word
"the" in the ninth line to the word
"and" in the tenth line, and substi
tute in the place the words, "electors
of this state for adoption or rejection
at the next election of members of
the legislature in such manner as
may be prescribed by law."
Mr. BALLARD. Mr. Chairman. I
cannot see the consistency of the ar
gument of the gentleman, but I can
see the inconsistency. The gentle
man from Lancaster (Mr. Robinson)
in his speech speaks about their vot
ing $6 0,0 00 in bonds here at a special
election when they did not get a
full attendance at the election, and
another gentleman says we cannot
have a full attendance at a special
election — Query — Will the legisla
ture submit this to the people when
they don't want it, a matter of such
importance? I will tell you when it
is that you can have a full attendance
at an election, it is when politicians
go out into the field and work, and
huy up votes if necessary. Something
may occur by which the people may
want an expression on a proposed
amendment before the time for a
general election. I think there is
danger in inserting this amendment.
Mr. ABBOTT. Did you have this
question up in /our county on the
railroad bonds.
Mr. BALLARD. Yes, sir, we did.
Mr. ABBOTT. How did you like
it? Mr. RALLARD. Well, I will tell
the gentleman. There was a railroad
company wanted $150 000 out of our
county. With us it was submitted at

a special election, and the only objec
tion I had to it there was too good an
attendance, there were too many
votes cast.
Mr. WAKELEY. Would that have
been the case at a general election?
Mr. BALLARD. I suppose it would
if the same influences were used,
that is plenty of whiskey, and money
to buy up votes.
Mr. ROBINSON. Mr. Chairman.
It appears by the statement of the
chairman of the committee that re
ported this article that the people
may want an expression sooner than
a general election, but the section
says that an amendment shall not be
submitted oftener than five years,
and before a general election may
come around the thing may be set
tled. I think we should go slow about
amending our fundamental laws, the
advantage is in submitting this at a
general election.
Mr. BOYD. Mr. Chairman. I
rise to a personal explanation. The
gentleman from Washington, (Mr.
Ballard) speaks of money being used
in his county to buy votes for the
Omaha & Northwestern railroad, of
which I had the honor to be president
at the time of the election. To my
certain knowledge there was not one
dollar used by that company to in
fluence any vote.
Mr. BALLARD. Do you not know
that there was money used?
Mr. BOYD. No sir.
Mr. MANDERSON. Mr. Chair
man. I rise to a point of order,
Mr. BALLARD. I am sorry the
gentleman did not think of a point of
order before.

AMENDMENTS TO CONSTITUTION

413

Saturday]

EATON- KIRKPATRICK— SPRAGUE

[July 15

Mr. EATON. Mr. Chairman. In
regard to this question of submitting
this at a general election. This thing
was passed through the committee
without any discussion; and as a
member of that committee I will ex
press my opinion, that it is a very
dangerous matter to leave this so
that the Legislature may submit as
important a matter to a special elec
tion. Mr. KIRKPATRICK. Mr. Chair
man. There is an old saying, "In the
abundance of counsel there is safety."
I am inclined to think I can make up
my mind what I ought to do. With
other persons it is not the case. One
gentleman urges as a reason why it
should not be urged at a general elec
tion is that there is political influence
at work, therefore a Constitutional
amendment would not receive the
just and proper consideration of the
voters. If I cannot hear something
more convincing than this discus
sion, I think I will be bound to
support the report of the committee.
Mr. SPRAGUE. I shall vote in
favor of the amendment. There has
been an opinion expressed here that
you cannot amend the Constitution
in less than five years. I do not so
understand it. I understand it to
mean this; if wrong I want to be cor
rected. If a proposition has once been
submitted and rejected, this proposi
tion provides, that the same propo
sition shall not be submitted for the
next five years. It does not take five
years to get an amendment to the
Constitution. It only takes, from the
time it is recommended by the first
Legislature until it shall pass

through the next legislature and be
voted on by the people three months
thereafter. That is my understand
ing of the case.
Mr. BALLARD. Mr. Chairman.
My objection to this amendment is
this. Suppose some emergency
should arise in which the people
want an amendment ratified and
made perfect before the next general
election, if the amendment prevails,
we are tied up by Constitutional pro
visions that we cannot have it. Shall
we tie ourselves up by Constitutional
provisions to that extent that the will
of the people cannot be enforced un
der an emergency, or leave it free for
the people to say what they will
have in that particular.
Mr. WAKELEY. Mr. Chairman.
The very object of a constitution is
to control Legislatures within certain
limits. We should have no need for a
Constitution if every Legislature was
to be left to its own discretion in re
gard to what it should do. The Con
stitution as adopted by the people
in their sovereign capacity, and the
only purpose — I will not say only
purpose — but one great object is to
put restrictions on the power and dis
cretion of Legislatures. If you could
always elect saints or perfect men to
the Legislature, leave everything to
them, because this convention is not
composed of that material, I speak
for one member of it. A great many
gentlemen in this hall have taken
occasion during this convention, re
peatedly to express their fears of the
overshadowing power of corpora
tions in this state, it was said yes
terday that entire Legislatures were

414

AMENDMENTS TO CONSTITUTION

Monday]

WAKELEY— WILSON

[July 17

owned by corporations wholly. Sup
pose when these giant corporations
shall own a Legislature, they have
some scheme to carry in their in
terests, when they might want an
amendment to the Constitution
adopted, they might get two succes
sive sessions of the Legislature to
ratify, then say it was danger
ous to submit it at a general election,
and the same legislature which had
proposed to sanction the amendment
would submit the proposition at
such time as would be most favorable
to the proposed amendment. And
I appeal to the experience of every
delegate in this Convention, if it is
not proved that those who advocate
a particular measure, have an ad
vantage in the submission of that
measure at a special election. It is
true, every man knows it, that those
having influence to carry an amend
ment through the Legislature, are
interested in its adoption, and that
same interest will be manifested at
the polls. Those who would vote
against it, if they vote at all, are
entirely indifferent, or have not the
same zeal in opposing the amendment
that those who favor it have in its
adoption. This is but supposing a
single case, and the reasoning will
apply to all other cases.
Mr. WILSON. I move the com
mittee rise, report progress and
ask leave to sit again.
Mr. CAMPBELL. I move the
adoption of the section.
Mr. WILSON. It was voted yes
terday that when we adjourn today
it be at eleven o'clock.
The comm'.ttee divided on the mo

tion of Mr. Wilson, and it was not
agreed to.
The CHAIRMAN. The question
now is on the substitute offered by
the gentleman from Douglas, (Mr.
Boyd.) Mr. STRICKLAND. Mr. Chairman.
Not having heard this debate 1 beg
to be excused from voting.
No objections being made the gen
tleman was excused.
The substitute was agreed to.
Mr. McCANN. Mr. Chairman. I
move that the committee rise, report
progress and ask leave to sit again.
The committee divided and the
motion was agreed to.
Mr. REYNOLDS. Mr. President.
Your committee have had under con
sideration the report of the Commit
tee on Future Amendments, and re
port progress and ask leave to sit
again, Mr. BOYD. Mr. President. I move
we adjourn.
The motion was agreed to, so the
committee at eleven o'clock and five
minutes adjourned.

TWENTY-FIRST DAY.
Monday, July 17, 1871.
The convention met at 2 o'clock
and was called to order by the presi
dent. Prayer.
Prayer was offered by the Chap
lain, as follows:
Oh, thou who art Supreme in good
ness and in all wisdom. May Thy
blessings, we pray Thee, rest upon
us as we address ourselves to the

AID TO INTERNAL IMPROVEMENTS

4L5

Monday]

PARKER— MOORE-MoCANN

I July 17

labors of the week. May Thy will
be the law of this Convention. May
Thy counsels, which are faithful in
truth and form, be the Spirit of our
law, that the State may be preserved
against all dangers that are seen,
and dangers that are unseen. Amen.
Leave of Absence.
Mr. ABBOTT. Mr. President. I
ask leave of absence for Mr. Lake
and Mr. Manderson until tomorrow
at 2 p. m.
Leave granted.
Mr. CAMPBELL. Mr. President.
I ask leave of absence for Mr. Sco
field. Leave granted. Petitions.
Mr. PARKER. Mr. Chairman. I
wish to offer a communication and a
petition. The Secretary read as follows:
To the Honorable members of the
Constitutional Convention of the
State 'of Nebraska.:
We, the citizens of Seward coun
ty, pray your honorable body not to
abridge the liberties of your constitu
ents by placing an article in the
State Constitution depriving counties
and corporations of the right at
the ballot of voting aid for internal
improvements: And further; believing the intel
ligence of the people ought to decide
a question so momentous, we, ear
nestly ask the delegates of Seward
county not to compel their constitu
ents to oppose the Constitution by
embodying an article in it so obnox
ious to liberty.
Signed by Wm. R. Davis and Sev

enty-three others.
Mr. PARKER. I move to refer it
to the committee on Municipal Cor
porations. The motion was agreed to.
Mr. MOORE. Mr. President. I de
sire to offer a couple of petitions.
The Secretary read as follows:
To the Honorable, The Constitu
tional Convention of the State of Ne
braska: We, the citizens of York county,
would enter our most earnest protest
against the Constitutional Conven
tion incorporating an article in the
Constitution of the State prohibit
ing counties and corporations from
voting aid for internal improvements;
believing that the ballot box, in this
free and enlightened age, is a suf
ficient safeguard for our liberties,
and we remonstrate against the mon-
archial and despotical principle of de
priving the- people of using the ballot
box in any case whatever. Neither
do we want our rights and liberties
abridged nor curtailed.
Signed by D. R. Creegan and nine
ty-six others.
Mr. McCANN. I move that the pe
tition be referred to the Committee
on State, County and Municipal In
debtedness. The motion was agreed to.
The Secretary read a petition as
follows: "To the Honorable Gentlemen
composing the Constitutional Con
vention of the State of Nebraska:
Gentlemen: We, the undersign
ed citizens of York county, would
respectfully ask that you engraft a
clause into the Constitution which
you are now framing, prohibiting any
county from granting bonds for the
purpose of building or assisting to
build railroads in the same.
Signed by J. W. Frost and eighty-
seven others.
Mr. McCANN. Mr. President. I

416

LIMITATION TO DEBATE

Monday]

GRIGGS— PHILPOTT— MOORE

[July 17

move it be referred to the same
committee. The motion was agreed to.
Mr. GRIGGS. Mr. President. I
have a resolution I wish to offer.
The Secretary read the .resolu
tion as follows:
Resolved. That upon the discus
sion of any subject in the committee
of the whole house, no member shall
be permitted to speak more than
twice upon any one subject, and not
to exceed 15 minutes at any one
time. Provided, that when the re
port of any standing committee shall
be under consideration, the chairman
of such committee shall be exempted
from the operations of this resolu
tion. Mr. GRIGGS. Mr. President. I
move that the resolution be adopted.
Mr. WOOLWORTH. Let me sug
gest to the gentleman to amend so
as to cover discussions -in the conven
tion as well as in the committee of
the whole.
Mr. GRIGGS. I will accept that
amendment. Mr. PHILPOTT. Mr. President. I
hope the gentlemen of the convention
will take notice of the resolution, so
much so at least that before they
vote upon it they will have it before
their minds. It says that no gentle
man shall speak more than twice on
the same subject, nor longer than 15
minutes when in the Committee of
the Whole, where it is expected
matters will receive a full and care
ful consideration. I think that is
not enough time.
.Mr. GRIGGS. Mr. President. I
am induced to offer this resolution
because I consider more time has
been taken up in these discussions

than is necessary. It has been re
marked by a great statesman that 15
minutes are sufficient for him, or
anybody else to argue one subject,
and that is all that this takes in. I
am satisfied that the people don't.
want us to stay here wasting time
on such long arguments. Every
member of this convention has his-
mind fully made up on all important.
subjects, there is no need of so
much speaking. I think we will get
through sooner and be better satis
fied with our work; and I am sure
our constituents will be better sat
isfied. Mr. ESTABROOK. If the resolu
tion applied solely to the proceedings
in the House I would vote for it, but
it may be in the consideration of
many questions we may desire more-
time than will be , allowed by that
rule. I think we had better be al
lowed some degree of freedom in the
Committee of the Whole.
Mr: MOORE. Mr. President. I
think I have a right to say what I.
think on this resolution as I have
not taken up much time of the Con
vention. I am opposed to the resolu
tion. I suppose there are some here
who could speak two hours upon a
subject and at the end tell more-
than some of the rest of us know al- '
together. We come here to consider
the best way for providing constitu
tional remedies. We have to consult
together, and there is no necessity
that we cut off any man's speech. If
we do we are cutting off from the
people their rights.
Again, it gives the chairman of
the committee the right to make as

LIMITATION OF DEBATE

417

Monday]

GRAY— WILSON

[July 17

many speeches as he likes or as long
as he chooses. I don't think that the
chairman may know any more than
any other member. If a rule is
passed I hope it will be equal on
all. Mr. GRAY. I hope the resolution
will prevail. I am heartily in favor
of the principle in it. It is urged
here that some gentlemen are able to
speak two hours on the same sub
ject. Well, sir, I believe these very
gentlemen are able to say all that is
necessary in fifteen minutes.
Any gentleman upon this floor that
has the capacity of mind and mem
ory to speak intelligently upon any
subject likely to come before this
house, also has the capacity to ex
press all he has to say in fifteen min
utes. A great deal of time has been
spent unnecessarily, so far, in speak
ing. I have no desire to prevent
men from saying all that is neces
sary to be said to express their senti
ments upon any question that comes
up here, but I desire that we should
work by some better discipline than
we have been doing so far. Take,
for instance the course which the
learned Chief Justice takes, when he
confines counsel to fifteen minutes.
He knows when they make an effort
they can say all they desire to say
in that time. The discipline will work
well here.
The ayes and nays were demand
ed. The Secretary called the roll and
the President announced the resolu
tion lost, a two-thirds vote being
necessary under rule 43.
27

Ayes, 25; Nays, 19, as follows:

Ayes.

Abbott, Ballard,
Eaton, Gibbs, .
Granger,Gray,Griggs,
Hascall, Kilburn,
McCann,Majors,Myers,

Cassell, Curtis, Estabrook,
Hinman,Kenaston,Kirkpatrick,
! Lyon,Mason,
Moore, Neligh,

Boyd,Campbell,Parchin, Parker,Reynolds,Speice,Stevenson,Stewart,Thummel,Thomas,
Tisdel,Wilson. — 25

Nays.

Newsom, Philpott,Price, .
Robinson, Shaft, Soragtie
Towle,Vifquain,Weaver,Woolworth.

-19.

Absent or not Voting,
Grenell, Maxwell,
Lake, Manderson, Mr. WILSOh

Scofield, Wakeley.

Mr. President. I
have found -a letter upon my desk
which I wish the gentlemen of this
Convention to know the contents of.
It is this: Lincoln, Neb., July 15, '71.
Mr. John Wilson.
Sir: — A friend has informed me
that you intend to introduce a reso
lution in tended to cast dishonor
able reflections on me, I shall consid
er it in that light, and call on you to
account through a friend,
Yours truly,
E. E.
I wish to say to this Convention
that I am here standing in my own
boots bought and paid for, and that
they cannot frighten me from doing

418

LIMITATION OF DEBATE

Monday]

GRAY— THOMAS— ROBINSON

[July 17

my duty. Whoever he is he is a low
lived, d>'r<y, mean, conteniptibl'
skunk, that cannot put h.s name to
it. Mr. GRAY. Mr. Chairman. I de
sire to say that the rule referred to
allows the members to speak only
once. This allows them to speak
more than once, but says they shall
speak but 15 minutes at a time upon
a question. Mr. THOMAS. If the gentleman
from Dodge (Mr. Gray) will permit
me, I will offer as a substitute, this
"Xo member shall speak more than
15 minutes."
The PRESIDENT. I would call
the attention of the gentleman to
rule 40.
Mr. THOMAS. Mr. President.
This amendment which I offer, will
not limit the number of times a man
may speak. He can speak as often as
he pleases but only fifteen minutes
at a time.
Mr. GRAY. Mr. President. I
will not accept the substitute, but
will add to my resolution the words,
"and that the rules be suspended."
Mr. CASSELL. Mr. President. I
move that the matter be indefinitely
postponed. The motion was not agreed to.
The PRESIDENT. The question
is upon the adoption of the substi
tute offered by the gentleman from
Nemaha, (Mr. Thomas.)
The Convention divided and the
substitute was not agreed to.
The CHAIRMAN. The question is
now upon the adoption of the reso
lution of the gentleman from Dodge
(Mr. Gray.)

Mr. KIRKPATRICK. If I under
stand correctly, it will require a two-
thirds vote to pass this resolution?
Mr. MYERS. Mr. President. I
move that the resolution be postpon
ed until Saturday morning at 10
o'clock. The motion was not agreed to.
Mr. ROBINSON. Mr. President.
I voted against the postponement be
cause I want to see the whole thing
voted down. I don't bel.eve there
has been any disposition on the part
of any member of this body, so far,
to speak against time, nor delay the
transaction of business. A want to
see every matter fully discussed. I
call for the ayes and noes.
Mr. WOOLWORTH. Mr. Presi
dent. I call for the reading of the
resolution again.
The Secretary read as follows:
Resolved — That no member shall
speak more than twice in committee
of the whole on any question, and
shall not occupy more than 15 min
utes each time; and no member shall
speak more than thirty minutes on
any question in the Convention.
Mr. PHILPOTT. Mr. President. I
call for a division of the question.
Mr. GRAY. One question is to
suspend the rules; the second is to a
limitation of time in Committee of
the whole; the 3rd, limitation of
time in the Convention.
Mr. ESTABROOK. Mr. Chairman.
I move that rule 40 be suspended
and that time shall be limited as
therein explained, so far as it ap
plies to the Convention. I offer this
as a substitute.
Mr. HASCALL. Mr. President.

LIMITATION OF DEBATE

419

Monday]

EST ABROOK -MYERS— WILSON

[July 17

We want rule 40 to stand. This
would be merely a substitute for that
rule. If we adopt this rule, and
say nothing about rule 40, this would
be all right.
Mr. SPRAGUE. Mr. Chairman.
The rule laid down in Cushing's Man
ual —
Mr. ESTABROOK. I will state
that my substitute offered, to suspend
rule 40, so as to limit the two speech
es of 15 minutes each, in the Commit
tee of the Whole, and speeches in the
Convention to thirty minutes each.
Mr. MYERS. Mr. Chairman. I
move that the rule requiring a two-
thirds vote to change, alter or modify
any of the rules, be suspended for the
¦ purpose of considering the resolu
tion offered by the gentleman from
Douglas (Mr. Estabrook.)
The ayes and nays were demand
ed. The Secretary proceeded to call
the roll.
Mr. CURTIS, (when his name was
called) Mr. President. I desire to be
excused from voting.
Mr. Curtis was excused.
The President announced the re
sult — Ayes, 26; nays, 16; — as fol
lows: Ayes. Ley,

Abbott,Ballard,Boyd,
Campbell,
Eaton, Estabrook,
Gibbs, Granger,
Gray, Griggs,Hascall,
Hinman,
Kilburn,

McCann,
Moore,
Myers,
Newsom,Reynolds,Speice, Stevenson,Stewart,
Thummel,
Thomas,
Tisdel,Woolworth.-

-2 6

Nays.
Cassell, Robinson,
Kenaston, Shaft,
Kirkpatrick, Sprague,
Majors, Towle,
Neligh, Vifquain,
Parker, Weaver,
Philpott, Wilson,. — 16.
Price, Absent and Not Voting.
Curtis, Maxwell,
Grenell, Parchin,
Lake, Scofield,
Manderson Wakeley,
Mason, Mr. President. — 10
Mr. ESTABROOK. Mr. President.
I rise to a question of privilege. I
would like to inquire of the gentle
man from Johnson, (Mr. Wilson) as
I see the letter which he read here
bears the initials "E. E.," which
may mean Experience Estabrook, if
he thinks I am the author of that
letter? Mr. WILSON. Whoever the shoe
will fit can put it on.
Mr. ESTABROOK. I want it un
derstood that I wear No. ll's,
(laughter) and I think this is a
sort of child's shoe. Those here who
are acquainted with my manner of
correspondence and style of writing
know that I write my name to my let
ters in plain hand and sometimes in
dulge in the style of John Hancock.
If the gentleman ever receives
a comunication from me it will
be signed in unmistakable letters
and if it is necessary I will
get the Secretary to affix the great
seal of the state.
Mr. HASCALL. Mr. President. I
move that we do now go into the
Committee of the Whole on the Exe
cutive Article.

420

POWER TO PROROGUE LEGISLATURE

Monday]

HASCALL— WOOLWORTH— ROBINSON

[July 17

The motion was agreed to.
So the Convention in the Commit
tee of the Whole — Mr. Myers in the
chair — proceeded to consider the re
port of the Committee on Executive.
The CHAIRMAN. When the com
mittee rose the question was on the
amendment of the gentleman from
Douglas, (Mr. Hascall) to add to
section 9, as follows: "But no gene
ral session of the Legislature shall
be so adjourned by the Governor un
til 20 days after the commencement
of the regular session."
Mr. HASCALL. Mr. Chairman.
This subject has been thoroughly
considered in the former discussion,
but some members may have been
absent at that time and not under
stand the reasons for the amendment.
I will simply state, it is for the pur
pose of prohibiting the exercise of
this proroguing power at least 20
days. Mr. WOOLWORTH. Mr. Chair
man. In the discussion had before,
it was pretty generally drawn out
that the question was the disagree
ment of the two Houses of the Leg
islature on the time of adjournment.
I wish to call the attention of the
gentlemen of the Committee to that
fact, and read the section as it
stands. Sec. 9. In case of a disagreement
between the two houses with re
spect to the time of adjournment,
the governor may, on the same being
certified to him by the house first
moving the adjournment, adjourn the
general assembly to such time as he
thinks proper, not beyond the first
day of the next general session.
The disagreement of the two
houses as to what? "the time of ad

journment." Now it was urged
here the other day that it was im
portant that there should be a pro
vision added to this section, that the
Governor should not exercise this
power until the Legislature had been
in sesion for a period of 40 days
and was afterwards put at not to
exceed 20 days; and why? It was
urged that the governor might pro
rogue the Legislature under this sec
tion, before it had done any business
at all, but I do not see how such an
exigency could arise. If the two
houses agreed upon an adjournment,
but a disagreement exists as to the
time, then the power of proroguing
shall be had. So that you see that
one branch of the Legislature shall
not have the power to procure an
adjournment. Mr. ROBINSON. Is this the time
at which, or the time to which the
adjournment shall take place.
Mr. WOOLWORTH. The time at
which, as it states the "time of ad
journment." Mr. ROBINSON. Read the last
part of the section, it says "to
which." Mr. WOOLWORTH. That applies
to the power to be exercised by the
governor, that when he has the pow
er to prorogue the Legislature, he
may adjourn it "to such time as he
thinks proper."
Mr. HASCALL. Mr. Chairman.
So far as this section relating to time
is concerned I agree with the gentle
man, and by agreeing with him I see
no reason why this amendment
should not prevail. If there is any
disagreement between the two

POWER TO PROROGUE LEGISLATURE

421

Monday]

HASCALL-TOWLE— KIRKPATRICK

[July 17

houses, it is as to the time when they
adjourn. I understand the section
relates to the time when the Legis
lature shall adjourn. This disagree
ment arose by a concurrent resolu
tion being introduced and passed in
one body and sent to the other who
refuses to pass it. Then the gover
nor may prorogue the Legislature
and fix the. time to which it stands
adjourned. There is no necessity for
this power. If there is, it is after the
Legislature has been in session the
constitutional time. After that time
they shall remain without pay. That
is one of the modes adopted to com
pel the two houses to agree upon a
time when they will adjourn. I
say this question ought not to rise
in the Legislature, so the governor
could step in and adjourn the Legis
lature to any particular time, unless
twenty days of the regular session
had already elapsed. We are mak
ing laws to meet the requirements of
eases as they arise. Unless twenty
days of the session has elapsed, there
is no justice in allowing an execu
tive to step in and dissolve that ses
sion by adjourning it to a period so
remote that that Legislative body
could have no time to transact busi
ness. So long as one body of the
Legislature deem it necessary to re
main in session for a longer period,
it might be to investigate the official
acts of an officer, and that the other
body being in accord with the execu
tive, wishing to smother matters
that the State should be made aware
of, would move and put through a
¦concurrent resolution to adjourn the
session; the other body refused to

pass it, there is a disagreement, and
the Executive comes in and termi
nates the session contrary to the will
of the Senate or the House. I think
it is wrong in principle that the gov
ernor should step in and dissolve a
general session of the Legislature
before twenty days of that session
had elapsed.
Mr. TOWLE. It seems to me Mr.
Chairman, that the section referred
to the committee is as near perfect
as we can make it, and that the
amendment should not be adopted. I
do not believe it can be supposed that
either one of the bodies of the dif
ferent houses will pass a joint reso
lution as to what time they will ad
journ until they are ready to ad
journ. The gentleman in support of
his position quotes a supposed case,
that if one of the bodies desires to
investigate and the other body does
not, why they have a power by dis
agreement, for the governor to come
in and prorogue them, thereby
thwarting an investigation that
would injure his reputation. If one
of those bodies desires to investigate
the governor's action; or any other
department, they need not fix upon a
time for adjournment, if they do not
there will be no disagreement be
tween the two houses, and the Gover
nor would have no power to pro
rogue. Mr. KIRKPATRICK. Mr. Chair
man. I do not agree with the gen
tleman from Douglas in his remark.s.
He claims there can be no disagree
ment except upon time. That is all
there is. of it. The question resolves
itself into this, we elect members of

422

POWER TO PROROGUE LEGISLATURE

Monday]

MAJORS— ROBINSON

[July 17

the Legislature to enact laws. The
executive is a different branch. He
is charged with the enforcement of
those laws, in accordance with the
provisions provided for by the Leg
islature. I believe it would be bet
ter to leave the whole matter to the
Legislature to control its. own sit
tings, but I am willing to accept this
amendment. Mr. MAJORS. I do not propose to
say but very little upon this question
as it appears to me the article, as
reported by the committee, in itself,
is right, and needs no amendment. I
am one who does not believe in this
convention putting anything into the
Constitution that will interfere with
the action of the representatives of
the people upon a question of this
kind. Now, the gentleman's argu
ment is that the power may be used
after twenty days. If there is a disa
greement as between the two branch
es of the Legislature at an earlier
period of the session within twenty
days the Governor has no power to
go in and adjourn the Legislature.
My opinion is, and I shall vote for
the article presented by the com
mittee, in that view of the case, that
this is a matter that should be entire
ly left to the Legislature at the time.
And if one branch of the Legislature
desired to adjourn, and the other
branch did not concur they were
forced under the Constitution to
stay the twenty days, that would
serve the interests of the people but
very poorly for the twenty days. I
am in favor, therefore, of the article
as reported by the committee and
shall vote to sustain it.

Mr. ROBINSON. I hope this
amendment will not prevail. I take
it that the officer who is elected by
the people, is, in some measure, the
servant of the people, even though he
be the Executive officer. Now it has
been supposed that the Executive
could defeat the will of the people
and both branches of the Legislature.
Now, I think re can only act upon tnt»
precise conditions as laid down in
this section. I take it that if the will
of the people is bound to be thwarted
it might be done by one branch of
the. Legislature as well as the other.
If one branch moves an adjournment,
and the other disagrees, the house
first reporting may report to the gov
ernor and has as much right as the
other house. If either branch of the
Legislature desires to disregard the
Constitution we can make no instru
ment to prevent them, and some re
sponsibility ought to be imposed up
on the Executive as well as upon the
Legislature. It must first be made
known to him officially.
Mr. ESTABROOK. I am in favor
of paying regard to the old usages,
traveling in the old paths unless
there has been something which has
shown that course to be wrong.
There have been some emergencies
we have met here during the last ses
sion, which might be corrected, to a
certain extent in the preparation of
this article. It is usual, I believe,
after the commencement of a session
fairly, and some times during its
progress, according to my recollec
tion and experience, that one branch
will offer a resolution to adjourn on a
given day; and they will generally

POWER TO PROROGUE LEGISLATURE

423

Monday]

ESTABROOK-THOMAS-HASCALL

[July 17

couple with that resolution another,
that after a certain day no new busi
ness shall be introduced. Suppose this
house pass a resolution ten days be
fore they intend to adjourn and they
not exactly concurring, then should
refuse to concur, and this body
should notify the governor, and act
ing in conjunction with them, he
should say this body shall be ad
journed to-morrow. What is to hin
der him? There is nothing. It seems
to me some safeguard similar to the
one offered should be adopted. Per
haps that would not be it. exactly. I
would propose I think, that provis
ion should be made that the proro
gation should not be made until ap
plication had been made for several
days. I shall vote with my colleague.
Mr. THOMAS. I am in favor of
the section as it stands now. It seems
to me there is no necessity for the
amendment which has been propos
ed. I understand from this section,
that the Governor may not adjourn
until there has been a disagreement
as to the time of adjournment. Sup
pose the senate passed a resolution
to adjourn at a certain time, the
resolution is sent to the house which
amends the resolution by fixing the
time on a different day; it is sent
back to the senate, which refuses to
concur in the amendment. Notice is
given the House. The House refuses
to recede; there are no committees
of conference appointed. Nothing
more can be done. They are not able
to adjourn at all. Now, it seems to
me that in such a case as this the
section is right. Now, I can see no
reason why the legislature should

wait twenty days; they have agreed;
they are willing to adjourn, but can
not fix upon a time, and it seems to
me when they get into such a posi
tion as that the Governor should be
authorized to step in and adjourn
without waiting a period of twenty
days. They have got through with
their business in one house; the other
may wish to keep the legislature
here longer. One house may have
made up their minds that they will
not transact any more business; and
why keep a body in session twenty
days when they have declared they
will not do any more work. I am
opposed to the amendment as of
fered. Mr. HASCALL. I am glad that
the sophistry and covering has been
stripped off this question, and that
it appears in its true light — that
the Senate and Executive if they de
sire to adjourn the legislature, may
do so without the sanction of the
house. The last gentleman asks the
question why keep the legislature in
session twenty days after seeming to
make it apply to a twenty days' ses
sion, after -they fail to agree. But
that is not the case at all, because
this amendment supposes that the
only emergency in which the execu
tive can step in shall not arrive un
til twenty days after the commence
ment of the session. The question
arises whenever the two branches
fail to agree. Now, when the legis
lature comes in session for the pur
pose of doing business some time
should elapse unless both branches
are willing to adjourn, before an ad
journment can take place. And

424

POWER TO PROROGUE LEGISLATURE

Monday]

HINM A N— WOOLWORTH— C AMPBELL

[July 17

twenty days is not too much. And
the House of representatives is sup
posed to be the direct representative
of the people; more so than the sen
ate; because they are more numerous
and come usually from the smaller
districts, and it is proposed here, I
believe, that they shall be elected an
nually, and the Senators hold for.
a longer period of time, and only
part go out at the same time.
Now suppose that the senate
should form a coalition with the exe
cutive and shirk the responsibilities
laid upon them. They let an emer
gency arise and, as the gentleman
from Cass suggests, this notice is a
mere matter of form. This having
been gone through with, the Gover
nor can prorogue the legislature.
This power should not be exercised
unless both houses are willing to ad
journ or have been in session some
definite time.
The CHAIRMAN. The question is
on the amendment of the gentleman
from Douglas (Mr. Hascall).
The committee divided, and the
amendment was not agreed to.
Mr. ESTABROOK. Mr. Chairman.
I move to amend by adding to the
section the words "the Governor may
also adjourn the legislature in case
either body remains in session twenty
days without a quorum."
I offer that in view of the facts
that took place here at the last leg
islature when this house was left
several days without a quorum, and
could not adjourn and in fact the
House of Representatives is in session
today , never having legally adjourn
ed.

Mr. HINMAN. I would like to
ask the gentleman, how long that
was the case.
Mr. ESTABROOK. I can not say,
but I know the adjournment was
without a quorum, and I think there
were some important bills passed.
Mr. HASCALL. The gentleman
is certainly mistaken.
Mr. CAMPBELL. Mr. Chairman.
I move to amend by inserting ten
days instead of twenty.
Mr. ESTABROOK. I accept the
amendment. Mr. WOOLWORTH. Mr. Chair
man. I am not familiar with the
case referred to by the gentleman
from Douglas (Mr. Estabrook) but I
know sir, some years ago there was a
dispute arose in the legislature of
the state of New York about the man
agement of the canals, and the demo
crats resigned their, seats so that
there was not a quorum, and the leg
islature was adjourned sine die, and
if I recollect right something of the
same kind occurred in the state of
Indiana. It may be the democrats
did this last thing.
Mr. ESTABROOK. I don't think
it was.
The CHAIRMAN. The gentlemen
must not engage in private conver
sation. The Chairman cannot hear,
and the reporters cannot get it.
Mr. WOOLWORTH. It is not of
the least importance that the report
ers should get it.
Mr. MAJORS. Mr. Chairman. I
was present during the last hours
of the last session of the legislature,
and I will simply say that all there
was of this matter referred to was

ADJOURNMENT OF LEGISLATURE

425

Monday]

MAJORS— TOWLE-GRIGGS

[July 17

I made a motion myself for the roll
to be called, and I was told that there
was a little business in the Senate
to be reported back to the House.
It had been acted on in the House
and it was said if the roll was called
the Chairman could not sign it, and
it was only for that, that the roll
was not called.
Mr. THOMAS. How many days
were you without a quorum?
Mr. MAJORS. Only the last day.
We had a quorum the last day. So
far as this amendment is concerned
I don't think it would correct any
thing. I am willing to trust this
matter to the legislators as they come
up here fresh from the people.
Mr. TOWLE. Mr. Chairman. The
object of the amendment is to pre
vent bills from being passed when
there is not a legal quorum present,
or in other words to provide against
the recurrence of such a thing as the
gentleman says took place here in
the last legislature. Now, the amend
ment does not cure this; it only lim
its it to ten days. But, sir, there is
no need of this. The constitution ex
pressly says that you cannot pass any
bills unless you have a quorum, but
may adjourn from day to day and
«end for the absent members.
Mr. ESTABROOK. I would like to
-ask the gentleman if signing a bill is
not a lawful act; and can the legisla
ture adjourn under the law sine die
without a quorum?
Mr. TOWLE. Mr. Chairman.
There must, beyond question, be
some power which will dissolve the
legislature when there is no quorum,
and there can be no business done.

As far as the constitutionality is
concerned there is a certain course
through which a law must pass. If
the journal of the legislature shows
that the law is not passed, then, of
course, it is not a law.
Mr. BALLARD. Mr. Chairman.
As a member of the committee that
reported this section, perhaps I will
be allowed to make a remark. Our
sister states have lived and prosper
ed under the same provisions, for
many years.
Mr. GRIGGS. Mr. Chairman. I
understand the question to be up
on giving the governor power to dis
solve the legislature whenever they
hold a session ten days after there
shall have been a quorum present.
Suppose, for instance, that the legis
lature adjourns. The members don't
resign, as they did in the case in
Indiana, just cited. Our last legis
lature did not resign, but they had
no quorum present, and could not
adjourn sine die — what could they
do? I think there should be some
power vested in the governor to ad
journ, after a sufficient time has
passed, and there is no quorum pres
ent, unless there is some such power
vested in the governor there could be
no way of adjourning unless there is
a quorum present. The mere fact
of the legislature going home — that
is not adjourning. I don't believe
tho cases cited, touch the case in
point. Mr. ROBINSON. Mr. Chairman. I
think myself that the case cited in
which there was a resignation of
the members, so that there was not
\ a quorum present in the legislature,

426

ADJOURNMENT OF LEGISLATURE

Monday!

ESTABROOK— WOOLWORTH— HASCALL

[July 17

is not like the case in point. But
the legislature has power to send
the sergeant-at-arms and secure the
attendance of members.
Mr. ESTABROOK. Mr. Chairman.
In case the members of the legisla
ture saw fit to go away to avoid
adjourning, they would put them
selves beyond the reach of the ser
geant-at-arms. It seems as though
this power to adjourn in these ca
ses, should be vested somewhere; and
I think the executive is the best
place. Mr. WOOLWORTH. Mr. Chair
man. I will not detain the commit
tee but a single moment. After hear
ing what has been said, my mind is
clearer upon -this subject and I don't
think the amendment should prevail
at all. I think the remedy for the
cases suggested by my colleague
(Mr. Estabrook) has just been stat
ed by the gentleman from Lancaster
(Mr. Robinson). I think the legisla
ture has power to compel the at
tendance of members. I think the
suggestion of the gentleman from
Douglas (Mr. Estabrook) — the last
suggestion that he made, is one so im
probable — almost so impossible that
it does not call for a remedy. It
is not for such improbable cases, that
we are to make provision.
Mr. HASCALL. Mr. Chairman.
Just such things are occuring every
year, I think they occur in Nebraska.
Members of the state senate have at
tempted to break up the senate. It
is true they came back afterwards,
when they found they could not de
stroy a quorum. It is true that the
gentleman can find no precedent in

some old constitutions for this. Sup
pose we have power to compel the
attendance of members of the leg
islature; they cannot always be
reached by the seargeant-at-arms — •
If there is not a quorum in attend
ance for ten days, the governor
should have power to adjourn the
legislature. The CHAIRMAN. The question is
upon the amendment.
The amendment was not agreed to.
Mr. WOOLWORTH. Mr. Chair
man. There is a typographical error
in the printing of this section which
ought to be corrected.
Mr. ESTABROOK. The commit
tee on revision and adjustment will
no doubt attend to that.
Section nine was adopted.
The Chairman read section ten as
follows: Sec. 10. The governor shall nomi
nate and, by and with the advice and
consent of the senate, (a majority of
all the senators elected concurring,
by yeas and nays) appoint all officers
whose offices are established by this
constitution, or which may be created
by law, and whose appointment or
election is not otherwise provided
for; and no such officer shall be ap
pointed or elected by the general as
sembly. Mr. BALLARD. Mr. Chairman. 1
move its adoption.
The motion was agreed to.
The Chairman read section eleven
as follows:
Sec. 11. In case of a vacancy,
during the recess of the senate, in
any office which is not elective,' the
governor shall make a temporary ap
pointment until the next meeting of
the senate, when he shall nominate
some person to fill such office; and
any person so nominated who is con-

THE PARDONING POWER

427

Monday]

KILBURN-HASCALL- WOOLWORTH

[July 17

firmed by the senate (a majority of
all the senators elected concurring,
by yeas and nays) shall hold his of
fice during the remainder of the term.
and until his successor shall be ap
pointed and qualified. No person,
after being rejected by the senate,
shall be again nominated for the
same office at the same session, unless
at the request of the senate, or be
appointed to the same office during
the recess of the general assembly.
Mr. KILBURN. I move the adop
tion of the section.
The motion was agreed to.
The Chairman read section twelve
as follows:
Sec. 12. The governor shall have
power to remove any officer whom he
may appoint, in case of incompetency,
neglect of duty, or malfeasance in of
fice; and he may declare his office va
cant, and fill the same as herein pro
vided in other cases of vacancy.
Mr. GRIGGS. I move its adoption.
The motion was agreed to.
The chairman read section thir
teen as follows:
Sec. 13. The governor shall have
the power to grant reprieves, commu
tations and pardons after conviction,
for all offenses except treason and
impeachment, upon such conditions
and with such restrictions and -limi
tations, as he may think proper, sub
ject to such regulations as may be
provided by law, relative to the man
ner of applying for pardons. Upon
convicti n for treason he shall hav
power to suspend the execution of
the sentence, until the case shall be
reported to the Legislature at its
next meeting, when the Legislature
may either pardon or commute
the sentence, direct the execution
of the sentence, or grant a further
reprieve. He shall annually commu
nicate to the Legislature each case
of reprieve, commutation or pardon
granted, stating the name of the con
vict, the crime of which he was con- I

victed, the sentence and its date, and
the date of the reprieve, commuta
tion or pardon. In cases of convic
tion upon impeachment, the Legis
lature may remit so much of the
sentence as shall disqualify the con
victed person from holding office.
Mr. HASCALL. Mr. Chairman. I
move to strike out the following
'words in fourth line, "relative to the
manner of applying for pardons."
The reason is, this pardoning power
is subject to great abuse, and'is made
a matter of bargain and sale in a
great many states. It is a power
that should be under the regulation
of the Legislature, and they should
make such wholesome restrictions,
not only as to the manner of applying
but other matters connected with the
subject, and by striking out this
clause the object is accomplished.
It is not a new thing to hear of gov
ernors receiving money as considera
tion for pardoning criminals. I
think we should look after the mat
ter a little.
Mr. WOOLWORTH. Mr. Chair
man. I am constrained to oppose the-
amendment. If you leave the legis
lature to regulate the matter of par
dons in every respect, you virtually-
invest the pardoning power with
them. Now, this matter of pardoning was
naturally considered in the commit
tee. The mischief to which the par
doning power may be used was con
sidered and an effort was made to-
find some other mode of exercising
this power; some other department
of government, but the committee
were unable to define any depart
ment of the government, where this

428

THE PARDONING POWER

Monday]

ROBINSON— TOWLE— THOMAS

[July 17

power could be vested as well as in
the executive, and I think gentlemen
in this convention will tax their
hrains in vain to find any place other
than the executive to entrust this
power of pardoning criminals. I
suppose it is very well understood
that this article is adapted almost
entirely from the Illinois constitu
tion; but if the members of the con
vention will look at the Illinois con
stitution in this particular they will
find that the committee have restrict
ed the pardoning power very much
beyond what the Illinois constitution
did, very much indeed. I certainly
hope that this amendment will not
prevail. The amendment was not agreed to.
Mr. ROBINSON. Mr. Chairman.
I move to insert after the word "im
peachment" the words "and misde
meanors not punishable by impeach
ment, when the fine does not ex
ceed one hundred dollars."
Mr. TOWLE. Mr. Chairman. The
power granting reprieves and commu
tations is given to the Executive office
for the reason that some injustice
may have been done; that some
wrong may have been committed,
that some new evidence may have
been discovered, which, by the usual
course of procedure in our courts
and criminal jurisdiction, is not li
able to get a new trial. If we start
out upon the assumption that it is
right in any instance, in any particu
lar, to grant the Executive of the
state the power to pardon, we can
not limit it by fines, nor by dollars
and cents, we cannot limit it by the
-amount of imprisonment, because

even upon the most heinous crimes,
or the crimes which society fixed
the most stigma to, ought to be par
doned, if deemed innocent, as well
as an offender for a slight crime. If
there is such a thing existing in the
world as a principle, it behooves every
member of the commonwealth to
stand as strongly and firmly for that
principle, as much if one dollar is
concerned as if a man's life or reputa
tion is at stake.
The highest court known in the
state is the court which tries for im
peachment. Again treason is exempt
because it is one of the highest crimes
of the law. But there is no provision
for .reporting these smaller crimes
to the legislature. There is no meth
od whatever of reaching it, if a par
ty should have been proved to be in
nocent or convicted wrongfully, and
releasing him from that confinement.
It is wrong, and should be entirely
extinguished. Mr. THOMAS. It seems to my
mind very evident that this amend
ment should prevail. Suppose, in
a criminal or misdemeanor case it
should be discovered the person is
nnocent, some one should be ap
pointed to pardon, and I do not think
any better place to invest the power
can be found than in the Executive.
It seems to me no exception of this
kind should be inserted in this sec
tion. Mr. ROBINSON. I am not alto
gether positive that this amendment
should prevail. I offered it because
it covered some cases coming within
my actual experience. I know there
are cases where the offense is liable

THE PARDONING POWER

429

Monday]

THOMAS— HASCALL— MOORE

[July 17

to a fine and that fine does not ex
ceed one hundred dollars, when it is
easy for a person to get a petition
with a large number of signatures.
If the Executive has the power, why
it always strikes him that if he has
that power, say in a case of murder,
where a large number sign, if he
grants a pardon in one case he ought
also in another. It is provided that
the party aggrieved shall have the
right to appeal. He is heard by a
jury the second time, and I think he
ought to rest satisfied when the jury
has in two instances, found him
guilty. I do not think where the fine
is $20 or $25 a petition ought to
be entertained.
Mr. THOMAS. I have known
cases where the judge of the court
in which a person was convicted of
misdemeanor has become convinced
that the party was innocent, and
would be called to release the person
and pardon him; and all he could
do was to petition the Governor to
pardon. And if we take away this
power from the governor how can the
pardoning be effected? It seems to
me there should be no limit upon the
power of the Executive in this case.
It is true he may pardon people who
ought not to be, but we must be de
pend upon his honestly fulfilling his
duties as Governor.
Mr. HASCALL. There is no reme
dy for this pardoning power. As the
section now stands we have to submit
to it. If you want an order to cor
rect an Executive you must do it by
law. Mr. MOORE. Mr . Chairman. I
always was averse to doing anything,

or having anything done, beyond
which there can be no redress. That
old law of the Medes and Persians
never took very well with me. Some
things ought to be pretty well fas
tened down so that idle hands can
not dally with them. But I think
everything will be well cared for
when the proper redress is left where
it should be with the people. I
know mistakes have been made by
our courts of justice, and men have
been convicted of misdemeanors and
crimes greater or smaller, who it
was afterwards discovered were in
nocent. Now in order that mistakes
may be corrected and justice be final
ly rendered it is necessary that some
power be introduced to correct evils
of this nature.
We have, in our system of govern
ment, the three great powers, execu
tive, legislative and judicial, so in
dependent of each other that one can
not materially affect the other; and
yet so interwoven that neither one
is perfect without the other. It is
true the judiciary should act with
caution, weighing well every word
spoken, yet after all mistakes will
sometimes occur. Now, I think this
provision in the Constitution comes
just where it ought. Let the gover
nor have the power of reprieving;
let him redress, so far as he is able
the various grievances when they are
submitted to him. It is argued that
he may be too liberal with his par
doning powers. They have, probably,
been too liberal, and may again, but
it is better that ninety-nine be par
doned than that one should be pun
ished unjustly. I think the Governor

430

THE PARDONING POWER

Monday]

STEVENSON— ESTABROOK

[July 17

is responsible to the people, for a too
liberal use of this power, and the peo
ple will ever hold not only him but
all other state officers responsible for
the manner in which they execute
the public trust. If the power en
trusted to them by the people be
abused, but few of them will ever
return to repeat former blunders —
for them.
The motion to amend was agreed
to. Mr. STEVENSON. Mr. Chairman.
I have an amendment to offer to sec
tion thirteen — to strike out all after
the word "upon" in the second line
down to the word "upon" in the
fourth line, and insert in lieu thereof
"upon petition of the judge, district.
attorney and two-thirds of the jury
before whom the case was tried."
Mr. ESTABROOK. Mr. Chairman.
I would like to enquire what would
be done in case the party was convict
ed and sentenced for life, and after
he had served about twenty-five
years, and the jury and judge were
all found to be dead, and the man
was found to be innocent, how would
he be pardoned.
Mr. STEVENSON. I suppose the
man would be in a pretty hard fix, if
such a thing should happen. But
it is hardly to be supposed that a
man should lie in prison for twenty-
five years before a petition for his
pardon would be gotten up. I think
there is entirely too much power vest
ed in the Governor — that where par
ties are placed in the penitentiary
sometimes petitions are gotten up
and parties sign when they do not
know anything about the case, and

that petition goes to the Governor;
he must pay some regard to it. But
when the petition is gotten up by the
judge before whom the case was
tried, and the district attorney and
the jury, then there must be some
reason for believing and knowing
that something has transpired which
convinces them that the person
ought not to be kept in prison.
Therefore, for that reason I think
the amendment ought to prevail.
Section thirteen was adopted.
The Chairman read section 14 as
follows: Sec. 14. The Governor shall be
commander-in-chief of the military
and naval forces of the state (except
when they shall be called into the
service of the United States) ; and
may call out the same to execute the
laws, suppress insurrections, and re
pel invasions.
Section 14 was adopted.
The Chairman read Section 15 as
follows: Sec. 15. The executive officers
named in this article, and the judges
of the supreme and district courts
shall be liable to impeachment for
any misdemeanor in office.
Mr. ESTABROOK. Mr. Chairman.
I move it be amended so as to em
brace, judges of county courts, the
amendment to come in after the word
"courts." One of the most important cases
ever recorded upon the criminal rec
ords was tried by a judge of probate
in Massachusetts, in which case Dan
iel Webster officiated as an attor
ney. The judges of the county courts
should be subject to impeachment.
Mr. CAMPBELL. That would be
like shooting snow-birds with can
non. (Laughter.)

IMPEACHMENT OF OFFICERS

431

Monday]

STEVENSON-ESTABROOK-MASON

[July 17

Mr. STEVENSON. Mr. Chairman.
I think if the judiciary article is
adopted, as proposed, then these
county court judges are of more im
portance than the gentleman from
Otoe (Mr. Campbell) seems to think,
for if that article is adopted, they
have jurisdiction over civil matters
to the amount of $500, besides the
probate business, and I think that
when they are wilfully corrupt we
should be able to deal with them
with extreme measures, the same as
against the governor and the judges
of the supreme court.
Mr. ESTABROOK. Mr. Chairman.
I move that this section of the Illinois
constitution be adopted.
'The Governor, and all civil officers
of this state, shall be liable to im
peachment for any misdemeanor in
office.' Mr. STRICKLAND. Mr. Chair
man. I think this will save a good
deal of expense, and a good deal of
trouble. We have had one impeach
ment trial, and it is found to be a
very expensive proceeding.
Mr. ESTABROOK. Mr. Chairman.
These judges of county courts are of
ficers who hold more important po
sitions, than those held by the Dis
trict judges, although the amount
over which they have jurisdiction, in
dollars and cents, is not as great. I
think the functions of these courts
are more important than the func
tions of the District court, they have
to deal with the estates and property
of children. The idea that this body
— the Legislature is always to be en
gaged in impeachment cases, is far
fetched, ' because it is only in rare
cases that the impeachment tribunal

is invoked — only in cases of manifest
fraud and misdemeanor. Perhaps it
is worth consideration, whether — in
case of the impeachment of other of
ficers, you shall not confer the pow
er of jurisdiction, say upon the Su
preme court. Wherever this power
is placed, it strikes me these officers
should be included, as much as offi
cers of the higher courts.
Mr. MASON. Mr. Chairman. I
concur with the gentleman who last
addressed the committee that these
officers should be subject to impeach
ment; but the question here presents
itself as to where this power of im
peachment should be vested.
The trial of county judges and
other county officers should be pro
vided for by some other body recog
nized by law. I think the executive
officers named in the article and the
judges of the Supreme and District
courts are the only ones over which
the Senate should have exclusive
jurisdiction. Why? Because the
Supreme Court is the very dernier re
sort for appeals, and it is only before
the Senate that such can be tried,
but all other officers can as well be
tried before some of these tribunals
as well as by the Senate. Your coun
ty officials should have a more speedy
trial than by the Senate.
Mr. ESTABROOK. This section
does not say they shall be tried
by the senate. It says simply "The
Governor, and all civil officers shall
be liable to impeachment for any
misdemeanor in office." It is simply
declaratory of what officers may be
subject to impeachment.
Mr. MASON. If that is the case I

432

IMPEACHMENT OF OFFICERS

Monday]

ESTABROOK-MASON— WOOLWORTH

[July 17

think the amendment is correct. I
apprehend that the committee in re
porting this section meant to say
only what officers shall be tried be
fore the senate. State officers only
should be tried by the Senate, all
others should be tried before courts
of law.
Mr. ESTABEOOK. I need not
state to the Chief Justice the maxim
of law "that some officers being
named all others are excluded." I
only propose to change it so that all
officers shall be included, and then in
your Legislative article you may de
termine how the different officers
shall be tried.
Mr! THOMAS. Does the gentle
man think that refers to the trial by
the Senate only?
Mr. ESTABROOK. No, sir, I do
not. Mr. MASON. By permission of the
gentleman, I desire to ask the chair
man of this committee on executive
(Mr. Woolworth) a question.
Mr. ESTABROOK. Certainly, sir.
Mr. MASON. This article express
es just who shall be tried by the Sen
ate? Mr. WOOLWORTH. Yes, sir.
Mr. MASON. Does it apply to all
officers that, may be impeached?
Mr. WOOLWORTH. No sir.
Mr. THOMAS. I would ask the
gentleman how he would remove thfi
superintendent of public instruction?
Mr. WOOLWORTH. As we would
remove any of the other officers nam
ed in this article. The section on this
subject in the Legislative article 1
suppose will be the same as that in
the Illinois constitution. "The House

of Representatives shall have the
sole power of impeachment," or as
you have it in the Federal constitu
tion. "The Senate shall have the sole
power to try all impeachments."
Mr. ESTABROOK. I wish the gen
tleman would read another section at
the end of Article II.
Mr. WOOLWORTH. The gentle
man refers me to another section
which I don't think refers to this,
but I will read it. • "The president,
Vice-President, and all civil officers
of the United States, shall be remov
ed from office on impeachment for,
and conviction of treason, bribery, or
other high crimes and misdemean
ors." Certainly there could be but very
few exceptions to that. The Senate-
is vested with the sole power of im
peachment. Does the Senate of the
United States try a subordinate offi
cer? Not at all. The receiving of
public moneys for malfeasance in of
fice is a crime under the criminal
laws to be tried by the courts. The
same may be said of a great many
other civil officers of the United
States, they are not tried for mal1
feasance in office by the Senate at all.
They are not impeached by the House
of Representatives. Now I call the
attention of the committee to this cir
cumstance for the purpose of show
ing that this trial of impeachment
is used in the article of the Federal
constitution to which I have directed
attention, and the other state consti
tutions refer to a certain specific kind
of State trial, and not to the sort of
trial that has been adverted to by the
Chief Justice in respect to sheriffs

IMPEACHMENT

433

Monday]

WOOLWORTH

[July 17

and county officers. This remedy by
impeachment was given to us by the
founders of the Federal constitution
from the practice as it obtained in
England, where the Commons im
peached not only officers of the exe
cutive government and judicial gov
ernment, but even citizens holding
exalted rank in the country. The
Commons impeached them by adopt
ing articles, those articles were car
ried up to the Lords and tried before
them, although the charge made
against these persons might be any
thing but an offence against the
criminal law, and not be for mal
feasance in office. All that was
sought to be controllad when the
Federal constitution was drafted,
and that is the kind of trial refer
red to by this constitution. It always
means when technically used, a trial
by the Senate. State senates are
vested with a like power to try im
peachments presented to them by the
House of Representatives in State
Legislatures. I make these remarks
in explanation merely to show that
when you vest the sole power to try
impeachments in the Senate, you do
not take away from a proper tribunal
the power to impeach and try coun
ty officers, which is the particular
matter the Chief Justice directed my
attention to. You may call it im
peachment and it is quasi but tech
nically it is not. As I stated before,
the article is almost entirely taken
from the Illinois constitution, but in
this fifteenth section we thought
there might be a liability to doubt
as to what persons were included
under the names of state officers,
28

and that it would be more specific to
say "executive officers named in this
article should be liable to impeach
ment." If you will turn back to
the first section you will see just ex
actly who those state officers are, it
says: "The executive department shall
'onsfst of a Govennr, Lieutenant-
Governor, Secretary of State, Audi
tor of Public Accounts, Treasurer,
Superintendent of Public Instruction .
and Attorney General.
Those, then, are the executive offi
cers, and they alone ought to be sub
jected to this trial by impeachment,
others to the judgment of the court.
And we think that the language used
is better than the language used in
the Illinois constitution, because it
avoids all the doubt that might pos
sibly be raised upon the question as
to who are the civil officers of the
state. They are only those named in
the first section.
Mr. ESTABROOK. Can you im
peach the Superintendent of Public
Instruction? Mr. WOOLWORTH. We can im
peach any executive officer named in
this article. He is one of the officers
of the executive department.
If the Legislature shall create
other State officers, and this clause
stands as it is now, they will not be
liable to impeachment .because it is
limited to those here named. It
was the view of a majority of the
committee that the officers named
in this article, six active officers, were
enough to transact the business of
this state, and do it pretty well.
Mr. THOMAS. Mr. Chairman. I
am in favor of the amendment offer-

434

IMPEACHMENT

Monday]

THOMAS— STRICKLAND— MASON

[July 17

ed by the gentleman from Douglas. I
believe all State officers should be
liable to impeachment before the
Senate. I believe county officers
should be removed from office, or a
complaint made before a proper tri
bunal, whatever may be provided by
the Legislature.
I understand the words "civil offi
cers of this state" in the Illinois
constitution are used in contradis
tinction to county officers and officers
of the military department. It is
made to cover all State officers.
Whatever officers should be state of
ficers should be removed by impeach
ment before the Senate. For this
reason, it seems to me that the sec
tion, as it exists in the constitution of
Illinois, is proper. It may be true
that the section here provided for
would cover all the officers mentioned
but we are not certain it will do so.
And for these reasons I am in favor
of putting in "all civil officers of the
State." I do not know how else the
officers should- be removed or before
what tribunal.
Mr. STRICKLAND. The gentle
man from Nemaha has just struck
the key to this question. "The
Executive officers named in this ar
ticle, and the judges of the Supreme
and District courts, and all other
civil officers of the state shall be li
able to impeachment for any misde
meanor in office." There must be a
manifest propriety ip these State of
ficers, who are officers of dignity,
that they should have on trial all
matters and concerns of state, which
are above those of counties. Every
single county officer is liable to be ar

rested, tried, punished and removed.
The amendment offered by my friend,
Gen. Estabrook, takes too broad a
scope. When you get down to police
men we have no trouble in our
county about them, or county offi
cer?. You will see the meaning of
this. Not State officers, but all offi
cers .are civil officers of the state. A
justice of the peace or a constable,
sheriff or county commissioner, or a
notary public are civil officers in the
state, but they are not State officers.
There is the difference. One is a
State officer, representing the inter
ests of the state, and the other only
represents say, a county or town
ship. Mr. ESTABROOK. Don't you use
the same term in civil officers of the
state?" Mr. STRICKLAND. No, sir.
Mr. MASON. After a careful ex
amination of the question, I am in
favor of the amendment offered by
Gen. Estabrook. The only differ
ence between the suggestion made by
Mr. President (Mr. Strickland) and
Gen. Estabrook is — The General
reads "and all civil officers of this
state," and Mr. President reads "all
civil officers of the state." The dif
ference between "this" and "the."
Mr. STRICKLAND. I will state I
am wrong in respect to this word.
Mr. MASON. I think all state of
ficers ought to be subject to impeach
ment. There may be others created
by the Legislature than those for
which this Constitution provides.
The Amendment of Mr. Estabrook
was adopted.
The section as amended was

IMPEACHMENT

435

Monday]

WOOLWORTH— MASON

[July 17

agreed to.
The Chairman read section 16 as
follows: The sixteenth section was adopt
ed. Sec. 16. Every bill passed by the
general assembly shall, before it be
comes a law, be presented to the gov
ernor. If he approve, he shall sign
it, and thereupon it shall become a
law; but if he do not approve, he
shall return it, with his objections,
to the house in which it shall have
originated, which house shall enter
the objections at large upon its jour
nal, and proceed to reconsider the
bill. If, then, two-thirds of the
members elected agree to pass the
same, it shall be sent, together with
the objections, to the other house, by
which it shall likewise be reconsider
ed and if approved by two-thirds of
the members elected to that house, it
shall become a law, notwithstanding
the objections of the governor. But
in all such cases, the vote of each
house shall be determined by yeas
and nays, to be entered on the jour
nal. Any bill which shall not be re
turned to the governor within five
days (Sundays excepted) after it
shall have been presented to him,
shall become a law in like manner as
if he had signed it, unless the general
assembly shall by their adjournment,
prevent its return; in which case it
shall be filed, with his objections in
the office of the secretary of state,
within five days after such adjourn
ment, or become a law.
The Chairman read section 17 as
follows: Sec. 17. In case of the death,
conviction on impeachment, failure to
qualify, resignation, absence from
the state, or other disability of the
governor, the powers, duties and
emoluments of the office for the resi
due of the term, or until the disabili
ty shall be removed., shall devolve
upon the lieutenant-governor.
The CHAIRMAN. — Section 17 is

before the committee.
Mr. ESTABROOK. I would ask
the Chairman of the committee what
he intends by the words 'conviction
or" in the first line?
Mr. WOOLWORTH. It should read
"on" instead of "or."
The section was so amended and
then adopted.
The Chairman read the 18th sec
tion as follows:
Sec. 18. The lieutenant-gover
nor shall be president of the senate,
and shall vote only when the senate
is equally divided. The senate shall
choose a president pro tem, to pre
side in case of the absence or im
peachment of the lieutenant gover
nor, or when he shall hold the office
of governor.
Section eighteen was adopted.
The Chairman read the next sec
tion as follows:
Sec. 19. If there be no lieu
tenant-governor, of if the lieutenant-
Etovenor shall for any of the causes
specified in Sec. 17 of this article, be
come incapable of performing the du
ties of the office, the president of the
senate shall act as governor until the
vacancy is filled, or the disability re
moved; and if the president of the
senate, for any of the above named
causes, shall become incapable of per
forming the duties of governor, the
same shall devolve upon the speak
er of the house of representatives.
Mr. MASON. I desire to call at
tention to the fact that the lieuten
ant-governor would act as governor
in case of the absence of the gover
nor, if he was under impeachment —
that is if the articles of impeachment
were preferred against him; also
that he would still preside in the
senate after the articles of impeach
ment were presented against him.
As the 17th has been, and the 19th

436

IMPEACHMENT

Monday]

MASON— LAKE— HASCALL

[July 17

is likely to be adopted, then some
one else should preside, for while
he is on trial he exercises all the
functions. Mr. ESTABROOK. — If the gentle
man will move to strike out the
words "conviction" it will do.
Mr. WOOLWORTH. — I must move
to reconsider.
Mr. MASON. If the committee de
sires to suspend the functions of the
lieutenant-governor, and if the arti
cles have been preferred then the
article should stand.
Mr. KIRKPATRICK. If I read it
right I think the gentleman is mis
taken. The 17th section reads — "In
case of death,- convicition on im
peachment, etc."
Mr. MASON. Let me suggest that
it read "conviction or impeachment"
instead of "conviction on impeach
ment." If that is the sense of the
committee I am not tenacious enough
about it to press it.
Mr. KIRKPATRICK. ' The chair
man of the committee I understood
to say that impeachment was to dis
qualify, when we proposed this arti
cle. Mr. LAKE. Mr. Chairman. I
think it would be well to reconsider
the vote by which Sec. 17 was adopt
ed. We should strike out the words
"conviction or." I move that we re
consider that vote.
The CHAIRMAN. The chair is of
the opinion that we cannot recon
sider in committee of the whole. The
committee is bound by its books.
Mr. THOMAS. Mr. Chairman.
This was adopted very hastily. Some
of the members would like to recon

sider and it seems very strange If we
cannot. Adjournment.
Mr. CASSELL. Mr. Chairman. I
move that the committee do now
rise and report progress, and ask
leave to sit again at 9 o'clock tomor
row morning.
Mr. WOOLWORTH. Mr. Chair
man. I hope the gentleman will
withdraw his motion for five minutes.
Mr. CASSELL. I withdraw the-
motion. Mr. NEWSOM. Mr. Chairman..
The 18 th section —
Mr. ESTABROOK. Will the gen
tleman let me call him to order —
The CHAIRMAN. We are not
now considering the 18th, but the-
19th section.
Mr. MASON. Mr. Chairman. In
considering the propriety of adopting
the 19 th section I think it is neces
sary to re for to Sec. 18, for that rea
son I think the gentleman is in order.
When we were considering Sec. 18, I
quoted from the 17th section, I sub
mit this is proper. Sec. 17 and 18,
they being referred to in Sec 19.
Mr. HASCALL. Mr. Chairman.
The entire matter under debate will'
be made harmonious by the adop
tion of the amendment of the gentle
man from Douglas, (Mr. Woolworth)
which is to strike out the words "con
viction on."
Mr. CASSELL. Mr. Chairman. I
renew my motion that the committee
rise. ,
The motion was agreed to.
Mr. MYERS. Mr. President. The
committee of the whole, have had un-

GOV. BUTLER'S RESIDENCE

437

Tuesday]

CASSELL— VIFQUAIN

[July 18

der consideration the report of the
judiciary committee, and beg leave
to report progress, and ask leave to
sit again. Leave of Absence.
Mr. LEY. Mr. President. I ask
leave of absence until Thursday noon.
Leave granted.
Mr. MYERS. Mr. President. I
move that the request of the commit
tee of the whole be granted, and that
they be allowed leave to sit again
tomorrow morning at nine o'clock.
Motion agreed to.
Mr. NEWSOM. Mr. Chairman. I
move that the convention now ad
journ until tonight at 8 o'clock.
Mr. HASCALL. Mr. Chairman. I
rise to av point of order.
Mr. NEWSOM. The only object I
had in making this motion to meet
this evening was to see if the mem
bers are willing to meet at night.
Mr. MYERS. Mr. President. I
move we adjourn until 9 o'clock to
morrow morning.
Motion agreed to. So the conven
tion adjourned.

sions. Teach us the counsels of thy
truth that we may walk in the way of
the Lord Jesus Christ. Amen.
Reading of the Journal.
The journal of last days proceed
ing was read and approved.
Governor's Residence.
Mr. CASSELL. Mr. President. I
have a report I wish to submit.
The Secretary read as follows:
"Your committee on State Insti
tutions and Public Buildings to
whom was referred the resolution
'to inquire into the expediency and
expense of purchasing an executive
mansion,' beg leave to submit the
following report:
We have conferred with Gov. But
ler and ascertained the cost of his
property, which he will sell at cost.
Cost of mansion  $22,000
Cost of furniture  10,000
Cost of barn and out bldg's 3,000
Cost of fence and painting 2,000
Cost of trees, walks and
shrubbery, etc  1,000
Cost of 8 acres  2,000

TWENTV-SKCOND DAY. 
Tuesday, July 18, 1871.
The committee met at 9 o'clock a.
m„ and was called to order by the
President. Prayer.
Prayer was offered by the Chaplain
to the convention, Rev. L. B. Fifield,
as follows:
Have mercy upon us O God, ac
cording to thy loving kindness, ac
cording unto the multitude of thy
promises blot out all our transgres-

Total cost of 8 acres and
improvements  $40,000
Total cost of 40 acres
and improvements.... 50,000
Total cost of 120 acres and
improvements  60,000
Will take what he owes the state
for part payment and state warrants
for the balance."
Mr. McCANN. Mr. President. I
move that the report of the commit
tee be referred to the committee of
the whole.
The motion was agreed to.
School Lands.
Mr. VIFQUAIN. Mr. President. I
have a resolution to offer.
The Secretary read the resolution
as follows:

438

STATE LANDS— IMPEACHMENT

Tuesday]

MYERS-KIRKPATRICK- WOOL WORTH

[July 18

Resolved. That the Secretary of
the Interior is hereby respectfully
requested to inform this convention
in what condition are the lands se
lected by the state of Nebraska in
1861 or subsequently, in lieu of Sec
tions 16 and 36, amounting altogeth
er to 9 8 3 3 acres; and we also re
spectfully request him to notify the
several land officers in this state to
stop any further disposition of said
lands, and to cancel the entries made
by private individuals upon said
lands." The PRESIDENT. If there is no
further business under this head the
special order, to go into committee
of the whole on the executive article,
will be taken up.
Mr. WOOLWORTH. Mr. Presi
dent. I move a suspension of the
rule which conflicts with our recon
sideration of section seventeen in
committee of the whole.
Mr. MYERS. Mr. President. I
see the difficulty into which the com
mittee fell yesterday. It is impos
sible for the committee to make a
correction by reconsidering. The
rules of the convention leave in the
hands of this body a remedy full and
complete. When this bill is reported
to the convention it is open to amend
ment, and the gentleman can reach
his object that way.
Mr. KIRKPATRICK. Mr. Chair
man. The matter can be easily
reached when the article is reported
back to the convention, and there will
be no difficulty in reaching it then.
The convention divided and the
motion was agreed to.
The PRESIDENT. The conven
tion will now go into committee of
the whole according to special order.

Committee of the Whole.
The convention went into commit
tee of the whole. Mr. Myers in the
chair. The CHAIRMAN. The committee
of the whole have again referred to
them the article on executive. Sec.
seventeen is before the committee.
Mr. WOOLWORTH. Mr. Chair
man. I move that we strike out the
words "conviction or" after the word
"death" in the first line.
Mr. KIRKPATRICK. Mr. Chair
man. I do not know whether that
ought to be in the constitution or
not. Suppose we are at present liv
ing under this constitution. I just
call attention to one case. Last Feb
ruary Articles of Impeachment were
presented against the Auditor. Un
der this constitution that Auditor
would have been suspended without
having been brought to trial, and the
committee intended to report this
power; it was in favor of reporting
this section as it stands, that the
executive was removed from office as
soon as he was impeached.
Mr. WOOLWORTH. There are
two questions Mr. Chairman which
are presented to us for consideration.
One is — whether, if we merely strike
out the two words "conviction on"
we will accomplish the object I
have in view, and also the views of
the committee which reported this ar
ticle. That is to say, whether the
Governor would be suspended from
his office immediately upon presenta
tion of articles against him by the
house. And I say the first question is
that the language be clear and ex-

IMPEACHMENT

439

Tuesday]

WOOLWORTH

[July 18

plicit to accomplish that purpose.
Turning from the article as reported
by the committee, and looking in the
Illinois constitution we have in the
24th section — "The House of Repre
sentatives shall have the sole power
of impeachment." The power to im
peach is vested in the House. That
is precisely the language used in
the constitution of the United States,
and is a phrase used, I believe in all
these constitutions. The same pro
vision, if I recollect correctly, will
be found in the Article reported by
the committee on legislature in this
house, in the 16th section of which
we find — "The House of Representa
tives shall have the sole power of
impeachment, but a majority of the
members elected must concur
therein." So that the power of im
peachment being in the representa
tives, that is when they shall pass a
resolution that an officer be im
peached and prepare and carry their
articles, by their managers, to the
upper house, the Senate, and present
them to the senate., then at that mo
ment, the power is exercised and the
officer stands impeached. Just ex
actly as when a person is charged
before a grand jury with the commis
sion of an offense, and the grand
jury having deliberated upon the
charge, and directed the officers to
prepare a bill of indictment the bill
is presented to the grand jury and
approved, and carried and presented
to the court, at that moment the per
son charged stands indicted. Just
so it is when the articles are carried
up from the lower house to the upper
house and presented there, then an

officer is impeached. That shows
that this language will be perspicu
ous, distinct and simple, by striking
out the words "conviction on." That
shows, I think, plainly that the lan
guage is clear, and is the usual lan
guage employed where the principle
is adopted which is aimed at by this
amendment. That is one question,
simply relating to the language. The
other question is — whether we shall
provide, in this constitution, that the
governor shall cease from the exer
cise of the functions of his office as
soon as these articles are presented, or
shall permit him to go on exercising
the functions of his office after the ar
ticles are presented, and up to the
time that the vote shall declare him
guilty. Those are the two questions.
This last is the question particularly
raised by the amendment- and a
matter of principle to be considered
by the convention.
Now, I have not very much to
say upon this matter. I think I dis
charge my duty by explaining the dif
ferent matters to be considered. But
there are, it is suggested by the
gentleman from Cass, a great many
constitutions which do not provide
that the governor shall be suspended
as soon as the articles are presented.
I think that is not the usual provis
ion, but I think it is a wise provis
ion to suspend him from the exercise
of his office at that time. The arti
cle, as it is drawn, does not relate to
the order, does not relate to any other
state officers than the governor, and
the rule ought to be different, as it
seems to me, in respect to the chief
executive officer of the state, related

440

IMPEACHMENT

Tuesday]

HASCALL-ESTABROOK

[July 18

as he is, with very large powers and
great influence by reason of his of
ficial position and duties; that the
rule ought to be different in respect
with the chief executive from what it
is with the heads of the subordinate
departments of the executive. There
is great reason for saying that when
the chief executive, the highest office
in the state, by the action of that de
partment of the legislature which is
supposed most directly, not most
completely, but most directly to rep
resent the views of the people, that
as soon as that body finds there is
probable cause for charging him with
grave crimes and misdemeanors in
office, that he should immediately
cease from the exercise of his func
tions, and therefore, as a matter of
principle, I am in favor of striking
out these two words, and provide
that the governor shall be suspended
from the exercise of the duties of his
office just as soon as the lower house
shall by their articles duly presented
to the senate, say, in the most solemn
manner that they believe him to be
guilty. Mr. HASCALL. Mr. Chairman. I
like, in inserting language in the con
stitution, to have it as concise as
possible. I agree with the gentle
man who has just spoken as to the
•necessity of suspending an executive
upon presentation of articles of im-
peaphment. But if we leave it to
read "in case of death, impeachment,
etc.," it will be better than to say
'in the case of death or on the presen
tation of articles of impeachment."
The presentation of articles is mere
ly an incidental matter, and is there

fore proper for the reason that it
does not add to the brevity and dis
tinctness of the section. There is
no mistaking what the word "im
peachment" means; and I think the
words "conviction on" ought to be
stricken out. The moment the reso
lution is passed and he is accused at
the bar of the senate he is impeached,
and the articles are merely a formali
ty. I therefore move to amend by
inserting simply the word "impeach
ment." ,
Mr WOOLWORTH. I withdraw
my motion and the motion now
simply is to strike out the words
"conviction on."
Mr. HASCALL. That is all right
then. Mr. ESTABROOK. Mr. Chairman.
There was some considerable differ
ence of sentiment among the peo
ple within the last six months in re-
regard to the significant terms which
are employed in this section; and it
led to some little inconvenience and I
imagine that the difficulty which fol
lowed from it was in consequence of
the fact that the terms themselves
were not generally understood.
There have been but very few
cases of impeachment, so that in the
public mind among the people gen
erally the terms applicable in im
peachment are not very well under
stood. But it is well enough settled
that the term "impeachment" signi
fies precisely the same as indictment.
It is equivalent to saying that when a
party is indicted his functions shall
cease. There is ground for some dif
ference of opinion as to whether the
impeachment is complete or whether,

IMPEACHMEN'

441

Tuesday]

ESTABROOK— THOMAS

[July 18

if it be complete, it work a suspen
sion so soon as impeachment has
been perfected in the lower house,
or whether it should work suspen
sion when reported to the senate. My
opinion is that it does not work a
suspension until reported to the sen
ate. So soon as he is impeached, that
is to say, so soon as the resolution
passed the lower house, the func
tions of the executive should cease.
I do not think the executive of the
state should be allowed to exercise
those functions during the progress
of a trial of impeachment. We con
fer not only great powers upon him
usually but great moral patronage,
and if there was occasion to impeach
the governor it might be reasonably
supposed that officer was sufficiently
corrupt to use his powers in securing
-a verdict or a decision that would
exonerate him.
If the officer shall be removed up
on conviction as a part of the judg
ment of the court, then there is a.
vacancy. The proposition does not
apply to this, because the functions
of the party ceases with his office.
You would, of course, not suspend his
functions after conviction unless he
was removed.
The CHAIRMAN. Gentlemen of
the convention, are you ready for the
question. The motion is to strike
out the words "conviction on."
Mr. ESTABROOK. Mr. Chairman.
I move to add the words "to the sen
ate," after the word impeachment.
Mr. THOMAS. Mr. Chairman. I
am in favor of the section as it
stands, because I think it is suffi
ciently plain. I think it corresponds

with the constitutions of most of the
states. I understand that the Eng
lish practice is, as soon as the resolu
tion has passed the House of Com
mons, the House of Lords is notified
that such a resolution was passed,
and the person accused is notified
that he is impeached. I will read
a section from Jefferson's Manual
in relation to the English practice.
"The general course is to pass a
resolution, containing a criminal
charge against a supposed delinquent
and then to direct some member to
impeach him by oral accusation, at
the bar of the House of Lords, in the
name of the Commons, the person
signifies, that the articles will be ex
hibited, and desires that the delin
quent may be sequestered from his
seat, or be committed, or that the
Peers will take order for his appear
ance." It appears from this, that the
member might be sequestered from
his seat. In this case, impeachment
must be the passage of a resolution in
the House of Commons and a notifi
cation to the House of Lords. I
doubt the section should be changed.
I think, at the present time, it cor
responds with the statutes cf most of
the states.
The CHAIRMAN. The chair will
beg leave to state that the course
pursued by the House of Representa
tives in this state, was in accordance
with the rule laid down in Jefferson's
Manual. Mr. ESTABROOK. Mr. Chairman.
It is very true that the path here
marked out is very clear, and very
distinct. Now the question arose in
our state, — never was settled — as to
the exact period when the functions

442

IMPEACHMENT

Tuesday]

ESTABROOK— MASON

[July 18

of our governor ceased. Even after
the articles were carried and were
reported to the senate, the secretary
of state upon whom the duties de
volved after the impeachment re
quested him to surrender the de
partment. The governor insisted
that he was not suspended — that he
was not impeached until he was noti
fied; that the articles of impeachment
ment should have been served upon
him, and whether that was tenable
ground or not never was ascertained.
It is true that he continued to serve
as governor until the articles of im
peachment were served upon him.
As it is easy to add a few words and
put this thing beyond doubt and
cavil, it seems to be the part of wis
dom to do so. If we mean to say
that the functions of governor shall
cease when these resolutions have
passed the House, it is easy to say
so. If we mean to say that these
functions shall cease when the
senate decides upon the matter,
let us say so: If we mean to say that
these functions shall cease when he
is impeached by the senate, it is easy
to say so. We know we have had
some little difficulty by the obscurity
of this passage as it is. It is a very
easy thing to settle all these ques
tions now, and it strikes me it is the
part of wisdom to do so.
The CHAIRMAN. The question
is to add the words "to the senate,"
after the word "impeachment."
Mr. MASON. (To Mr. Estabrook.)
Does the proposed amendment "to
the senate" — this notification to the
senate would operate to bring about
a ceasing of the functions of the ex

ecutive office?
Mr. ESTABROOK. Yes, sir.
Mr. MASON. For myself I think
his official functions should cease
when he is informed of the pending.
of the articles. I hope, certainly,
this may be done with other officers
than the executive, who are liable to
be impeached. Your judges, for in
stance; a judge might be holding
court when the articles of impeach
ment were preferred against him, he-
is not notified then and he has
no notice of the pendency of
the articles until at least a day or two-
after they have been preferred in the
senate. I suggest to the gentleman
to add, further, the words "and the
accused is notified."
Mr. ESTABROOK. Mr. Chairman.
I am in favor of that and accept it.
Mr. MASON. It seems to me, Mr.
Chairman, that this rule is a good
one and ought to commend itself to
the committee; The accused should
not be suspended until he is notified
that he has been impeached. As I
said before I have given this question
but little consideration, but I once in
my life reached the conclusion that
the official functions were not sus
pended until the notification of im
peachment by the senate, and that
the official functions do not cease
until the governor is sequestered
from his seat, or notified of the pend
ing of the articles. I suggest the in
serting of the amendment of the
gentleman and the words "and notice
to the accused."
Mr. ESTABROOK. I accept the
suggestion. The CHAIRMAN. The question is

STATE OFFICERS

443

Tuesday]

ESTABROOK— HASCALL— WOOLWORTH

[July 18

on the amendment.
The amendment was agreed to.
Mr. MASON. I move to insert af-
-ter the word "notice" the word
"thereof." The motion was agreed to.
Mr. MASON. I move the section
be adopted, as amended.
The 17th Section was adopted.
The CHAIRMAN. Sections 18 and
19 having been adopted on yesterday
by the committee, the question is
on the adoption of section 20.
The Chairman read the section as
follows: Sec. 20. If the office of auditor of
public accounts, treasurer, secretary
of state , attorney general or super
intendent of public instruction shall
be vacated by death, resignation or
otherwise, it shall be the duty of the
governor to fill the same by appoint
ment, and the appointee shall hold
his office until his successor shall be
elected and qualified in such manner
as may be provided by law. An ac
count shall be kept by the officers of
the executive department, and of all
of the public institutions of the state,
of all the moneys received or disburs
ed by them, severally, from all sour
ces, and for every service i.erfonned,
pnd a semi-annual -/epovt thereof be
made to the governor, under oath;
and any officer who makes a false re
port shall be guilty of perjury, and
punished accordingly.
Mr. ESTABROOK. Mr. Chairman.
I move to amend by striking out the
word "the" before the word "audi
tor" and after the word "auditor" the
words "of public accounts."
Mr. WOOLWORTH. The first sec
tion says "auditor of public ac
counts," and I think we ought to have
the different sections of the article
agree. The word "the" is a typo

graphical error.
Mr. ESTABROOK. If it is right,
then our laws as they have existed
ever since we have been organized
as a government, have been wrong.
It seems to me the simple word "au
ditor" is preferable.
The motion was not agreed to.
Mr. TOWLE. Mr. Chairman. I
move the adoption of the section.
Mr. HASCALL. Mr . Chairman.
This motion was susceptible of di
vision and was voted down on that
account. I move to strike out the
word "the" before "auditor."
The CHAIRMAN. The committee
has refused to strike out these words,
and a motion cannot be made to
strike out again.
Mr. WOOLWORTH. This word
"the," is a typographical error, and
was not the original report.
Upon this question of order I wish
to be heard. I think the chair is mis
taken for the reason that we have
adopted Cushing's Manual and it
says "that if there is a motion made
to strike out certain words and it
fails, you may afterwards move to
strike out the same words in con
nection with other words."
Mr. MASON. Mr. Chairman. I
rise to a point of order, we have no-
question before the committee.
The CHAIRMAN. The point is
well taken.
Mr. KIRKPATRICK. Mr. Chair
man. I have been misled, having a
different report from the other gen
tleman and think it is right.
The CHAIRMAN. The word "the"
will be stricken out by unanimous^
consent. The question is on the

444

STATE SEAL— SALARIES

Tuesday]

ESTABROOK— EATON— MASON

[July 18

adoption of the section as amended.
The motion was agreed to.
The Chairman read the next sec
tion as follows:
Sec. 21. The officers of the exe
cutive department, and of all the
public institutions of the state, shall
at least 10 days preceding each regu
lar session of the general assembly,
severally report to the governor, who
shall transmit such reports to the
general assembly, together with the
reports of the judges of the supreme
court of defects in the constitution
and laws; and the governor may at
any time require information, in
writing, under oath, from the offi
cers of the executive department, and
all officers and managers of state in
stitutions, upon any subject relating
to the condition, management and ex
penses of their respective offices.
Mr. ESTABROOK. I move to
amend by inserting after the word
"governor" in fifth line the words
"or either house of the legislature."
The amendment was agreed to.
Mr. KIRKPATRICK. I move the
adoption of the section.
The motion was agreed to.
The Chairman read the next sec
tion as follows:
Sec. 22. There shall be a seal of
the state, which shall be called the
"Great Seal of the State of Nebras
ka," which shall be kept by the sec
retary of state, and used by him,
officially, as directed by law.
Mr. EATON. I move the adoption
of the section.
The motion was agreed to.
The Chairman read the next sec
tion as follows:
Sec. 2 3. The officers named in
this article shall receive for their
services a salary, and they shall not,
after the expiration of the terms of
those in office at the adoption of this
constitution, receive to their own use

any fees; costs, perquisites of office
or other compensation. And all fees
that may hereafter be payable by law
for any service performed by any offi
cer provided for in this article of
(he constitution, shall be paid in ad
vance into the state treasury.
The salary of the Governor shall
be $3,000. The salary of the Secre
tary of State, of the Auditor of pub
lic Accounts and of Superintendent
of Public Instruction shall each be
$2,000. The salary of the Treas
urer shall be $2,500. The salary of
the Attorney General shall be $1,500.
The Lieutenant-governor shall re
ceive twice the compensation of a
Senator. Mr. KIRKPATRICK. I move the
adoption of the first clause of the
section. Mr. NEWSOM. I move to amend by
striking out the word "own" in third
line. Mr. MASON. I do not rise to ad
dress myself to the motions now be
fore the committee. Doubtless this
section when reported by the commit
tee was correct. It may be so now,
but if he thinks to go back and ex
clude all state officers it may be very
questionable. Until we amend this
section no other officers were includ
ed excepting in the cases named in
the first section. Since that time we
have referred to all state officers.
Now, if this is to be limited to the
six who are designated by their name
or office it should prevail. But if
it is to apply to all officers, land
officers and others, it seems to me
questionable whether it should pre
vail or not.
Mr. WOOLWORTH. It seems to
me very plain — "the officers named
in this article."
Mr, MASON. I only desire to say

SALARIES OF STATE OFFICERS

445

Tuesday]

KIRKPATRICK— THOMAS —BO Y D

[July 18

that I preferred, instead of the word
"article," "the officers named in the
first section;" then there can be no
question raised in respect to this mat
ter. I prefer the term "article," so
as to say what we mean and nothing
more. I throw It out as a sugges
tion. Mr. KIRKPATRICK. Mr. Chair
man. The object of the committee
in reporting this section was simply
that it provides for the salary of all
these state officers named in this ar
ticle; and it is not the intention of
the committee to allow them to re
ceive fees outside their salaries. The
fees received by the Secretary of
state should go into the state treas
ury. The motion of Mr. Newsom to
strike out the word "own" was lost.
Mr. THOMAS. I desire to ask the
chairman of this committee whether
this section is correctly printed or
whether the words "to be established
by law, which shall not be increased
or diminished during their official
terms," were intentionally omitted.
Mr. WOOLWORTH. It was Strick
en out by the committee. It was
done because in the constitution of
Illinois the salaries are fixed in the
legislature. It is proposed to adopt
another policy and fix the salaries
in the constitution. Of course if they
are fixed in the constitution they can
not be increased or decreased by the
legislature. Therefore the provis
ion in the Illinois constitution be
came unnecessary by reason of fix
ing those salaries.
Mr. MASON. I now move to strike
out the word "article" in the first

line and insert the word "section."
So that it may read "the officers
named in this section." The three
officers are named, it will be observed
in the latter part of the section.
The motion was agreed to.
The CHAIRMAN. The question
now recurs upon adopting this para
graph. Mr. BOYD. I move to insert, after
the word "salary" in the first line,
the following: "To be established
by law, which shall not be increases
or diminished during their official
terms;" and insert before the word
"the" in the seventh line, "only es
tablished by law."
Mr. CHAIRMAN. The motion to
amend the last paragraph does not
come in until we have disposed of
the first section.
Mr. BOYD. I offered my amend
ment to the second part of the sec
tion to make it correspond with the
first. The CHAIRMAN. Then it reads:
The officers named in this section
shall receive for their services a sal
ary to be established by law, which
shall not be increased or diminished
during their official terms.
Mr. ESTABROOK. Is that as far
as the amendment goes?
The CHAIRMAN. Yes.
Mr. ESTABROOK. Then I think
am in favor of it. Now the salaries
that will be required for these va
rious offices at the present time will
be different, it seems to me, to those
which will be required in the future.
In the first place, from some of these
officers the state is going to require
duties that will demand peculiar

446

SALARIES OF STATE OFFICERS

Tuesday]

ESTABROOK— WOOLWORTH

[July 18

fitness and will require talent that
would be worth more than it would
be subsequently when the duties were
less responsible. For Attorney Gene
ral the man should be the best lawyer
in the state of Nebraska. He will be
required to look after the lands
that have been taken from the state
and pick up evidence in relation to
them, and must endeavor to disen
tangle the web that has been woven
around our affairs, and all this out
side his other duties, such as giving
advice, prosecuting criminal cases, is
suing forms of procedure, etc. I
know it requires a good deal of wis
dom and industry. I do not think
myself that all the wisdom is going
to die when this convention dis
solves. I am perfectly willing to
leave it to the future legislatures of
this state to say what they are able
to pay, as it is in the amendment.
Mr. WOOLWORTH. Mr. Chair
man. I desire to say one or two
words more. I do not think all the
wisdom is going to die when this
convention adjourns. I think the
legislatures which are to sit in this
hall hereafter, most of them, will
all probably be composed of discreet
and honest men. But it is very easy
to see that when an officer of this
state is once installed in his office
and the legislature is assembled
here, I say it is very easy and it
would be very natural for that state
officer to go to that legislature, and,
by addressing himself to each indi
vidual member of it, or to a certain
section of it, get them to increase his
salary. It may be very largely in
creased, and it is to relieve the leg

islature from those sort of importu
nities that the committee undertook
to fix the salaries in the constitution.
Now, it is suggested by my friend
who proposed the amendment that
these salaries may not be increased or
diminished during the term of office
of any particular incumbent. Very
true, but that does not relieve the
matter of the difficulty that I have
adverted to, because these officers
will be subject to re-election, will be
pretty certain to desire re-election
some of them at any rate, and
will very likely go to work to
induce the legislature to increase
their salaries, expecting to be
re-elected. So much for what
has been said by the gentleman from
Douglas, (Gen. Estabrook) in refer
ence to the comparative virtue and
wisdom of this body and the legis
latures which are to sit here here
after. We are so circumstanced as
not to be subject to these importuni
ties at all. The legislature will be
subject to them, and, therefore, I
think our circumstances are unlike.
Now, as to the salaries which should
be fixed instead of varying them from
time to time. Reference has been
made to the Attorney General and
the duties that would be entailed up
on him at this juncture, in disen
tangling state affairs. I will tell you
what I think about that. I don't
think you can fix a salary — no legis
lature of this state, nor this conven
tion can fix a salary, can agree
among themselves upon the salary
that shall be paid to the lawyer
whose duty it shall be to go to work
and untangle this action. I know

SALARIES OF STATE OFFICERS

447

Tuesday]

WOOLWORTH— TO WLE-KIRKPATRICK

[July 18

you would be surprised to hear me
state what I would pay the attorney
general who addresses himself to
this work. It would be a very large
sum. What do you think the Union
Pacific railroad company pay the very
competent gentleman who has charge
of its business? It is a very large
sum. Why does that corporation
pay that large sum for this lawyer's
services? Because they think it
cheaper to employ a good and ca
pable man, and pay him a good sal
ary. Will the gentlemen of this con
vention undertake to pay to this at
torney general the same salary this
gentleman receives from the Union
Pacific? I think not, I think it
would be foolish. When the ques
tion comes up, "how are you to get
the services?" Not by increasing the
salary of the attorney general to the
enormous sum he receives, but let
the legislature, as heretofore, vote
to employ special counsel in all im
portant matters. It is the only way
it can be done. It can't be done by
fixing the salary. Therefore I think
it is better to leave this matter as the
committee has left it. I think it is
better to adopt the clause that now is
before the house unamended. - That
is to say, I think it is better for this
body to fix these salaries in this con
stitution rather than to leave the
matter with the legislature.
Mr. TOWLE. Mr. Chairman. Per
haps I am a little in the dark in re
lation to the amendment proposed. I
understand that the legislature shall
have power to increase the salaries
during the term of office of some of
the officers. The idea proposed by

the gentleman from Douglas (Mr.
Estabrook) that those present of
ficials would be importuning these
legislators for an increase of salary,
I think it is a good argument, and
the point is not well taken. If the
salary was increased it would hold
out inducements for other candidates
to that office. It is a favorite method
with state officers to hold out to the
world the pretense that the office is
worth nothing — it is scarcely paying
expenses. Now can this constitution
establish these salaries for a term of
years? The currency may change.
There may be a war and the curren
cy of our country may not be worth
as much as it is now. In other words
when we give $3,000 today, in other
years it may not stand for more than
$1,000 or $1,500. I am in favor of
the amendment of the gentleman
from Douglas (Mr. Lake.)
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas.
Amendment not agreed to.
The CHAIRMAN. The question is
upon the paragraphs as amended.
Agreed to.
Mr. KIRKPATRICK. Mr. Chair
man. I propose to strike out the first
line, which fixes the governor's sal
ary at $3,000, and fix it at $2,500. I
don't propose to make any elabo
rate remarks upon this point, but I
consider it is too high, and I there
fore move to strike out the $3,000
inserting $2,500.
Mr. CASSELL. I move to amend
the amendment, and make it $6,000.
Mr. MASON. Mr. Chairman. I
desire to address myself to this ques-

448

SALARIES OF STATE OFFICERS

Tuesday ]

MASON

[July 18

tion, and to say a few words with re
gard to these particular amendments
proposed. I don't think it wise to
fix the salary for any of these officers,
which is unchangeable by the leg
islature. Let us consider this ques
tion in a light of experience of the
last ten years. I well recollect that
in the beginning of 1862 a dollar
was worth a dollar; but within the
two years that followed it took $2.75
to buy as much as $1.00 would buy
at the beginning. In the beginning of
1862 $1.00 would buy as much in the
market as $2.50 would two years
from that time. You cannot fix an
irrevocable standard value upon
money. We pay these officers in
money. I can one year, hire the
same help for $20 per month that the
following year will cost me $30. I
allude to these matters as practical
every day affairs of life, and it be
hooves us to he guided hy th°s°
practical rules for fixing the salaries
of our officers.
Now in conclusion I think that it
might be wise for the legislature to
fix both minimum and maximum
salaries. I think it would be wrong
to fix an inflexible salary for any of
our officers. While I do not address
myself . to the consideration of the
amendment offered by the gentle
man from Douglas, I do hope it may
prevail. I would not leave it in the
power of the legislature to change
the salary of the governor during his
term of office; but I would leave it
free for them to fix the salary at
some reasonable sum. I have found
and here again I can only be guided
by my own experience, and by that

experience which I apprehend is
within the mind of every gentleman
in this committee. I have found in
all the relations of life that cheap
help was the dearest help I had
about, and where is the man that
has not? And as your business in
creases you must increase your sala
ries in order to secure a good care of
your business. We have heard in
this convention of the capacities of
these great corporations to extend
their influence and secure their aims.
How is all this done? Why, in every
instance you see them commanding
the best talent in all the land. How?
By buying it, by hiring' it, and it
seems to me that we might learn a
lesson of wisdom in this direction.
While we ought not to pay such
large salaries, let us connect the
honor of the office with a salary
sufficient to secure the services of
good and competent men. While I
would not fix the bands of the con
stitution like the laws of the Medes
and Persians, yet I would like that
this may be fixed so as not to be
changed during tho time of office, and
also to have the maximum and mini
mum of the salary fixed by the con
stitution. In speaking on this sub
ject I wish to call the attention of
the convention what we have already
done. We have taken steps to in
quire into the expediency of securing
an executive mansion. Since the in
troduction of that resolution I have
changed my views somewhat on it
and I think it would be well to con
sider the expense of this movement
as compared with the rent necessary
to be paid for a suitable mansion,

SALARIES OF STATE OFFICERS

44&

Tuesday]

MASON-KIRKPATRICK

[July 18

and I may here remark that the ex
ecutive of the state is expected to
embody the hospitality of the state,
that hospitality of which every citi
zen of the state of Nebraska is proud,
should be placed within his grasp
so that he should not have to put his
hand into his own pocket to supply
it. Permit me to suggest that your
salaries have been beggarly low in
the past and it seems to me that here
lies the temptation to social ruin not
only in the state but the disintegra
tion of our political relations abroad.
It seems to me, Mr. Chairman, that
there is reason for this founded not
only in experience, but also in di
vine revelation. I think I had occa
sion once before in this convention
to say that that man has not yet been
born who can tell just what amount
of temptation he may withstand
and that is the reason of the injunc
tion to pray "lead us not into temp
tation." What do you expect of a
state officer, if it is not the concentra
tion of all his mental powers in the
faithful performance of the duties of
his office? It is idle to talk morals
to a man whose children are hungry.
It is idle to talk public business to
a man when his family is in need. It
is idle to ta.k of compelling the seve
ral state officers to move to the Capi
tal city of Lincoln on meager salaries.
This is all the reflections I desire to
make at the present time. If the
views which have suggested them
selves to my mind shall meet the
views of a majority of this conven
tion, then I desire at the earliest con
venient moment of time that it may
be entertained here to move the re
commitment of this section to the
29

committee. Mr. KIRKPATRICK. Mr. Chair
man. I in the main agree with the
gentleman, (Mr. Mason). I agree
with his premises, but not with his
conclusions: The question as I un
derstand it is on inserting $6,000.
I have' an amendment which I wish to
offer at the proper time. I will read
it now, to add at the close of the sec
tion "until otherwise provided by
law." Now sir there has much been
said here on the fluctuation of cur
rency. Now sir, I undertake to say
that'it is not competent for this con
vention to take into account these
sliding scales of value, and there
fore I am in favor of leaving this
matter to the legislature. Now sir,
there are men of different degrees
of proficiency, and we wish to secure
such as will prove most competent
to execute the duties of the office.
I undertake to say that there are
men in Nebraska as well, qualified
to discharge the duties as any men
in it working for a salary of $1,-
000 a year. This is a question that
touches the pockets of the people. I
think every good man ought to be
influenced by patriotism, ought to be
willing to serve his fellow citizens,
not without compensation, but he
may decline if the salary is too lit
tle. My opinion is the whole ques
tion should be left to the legislature.
There has been a good deal said
about beggarly salaries. I beg to
read from the constitution of Iowa,
adopted in 1857. "The salaries of
judges of the supreme court under
this constitution is $2,000 per an
num, district judges $1,600 per an
num up to the year 1860, after such

450

SALARIES OF STATE OFFICERS

Tuesday]

BALLARD— CASSELL

[July 18

time they shall receive such com
pensation as the legislature shall by
law prescribe."
Mr. BALLARD. Mr. Chairman.
I wish to make one or two sugges
tions. I am opposed to leaving this
important matter of salaries to the
legislature. I am surprised that gen"
tlemen should talk as though the
paying of salaries was an eternal
matter. Did we not make some ar
rangement to amend the constitution
at the will and pleasure of the peo
ple? I am opposed to high salaries,
and stupendous palaces for our «eerv-
ants, while a great many of my con
stituents, are living as it were, in the
ground, and the people will vote the
constitution down if you attempt it,
What is the experience of our neigh
bors? Take the state of Iowa, no
state ever paid her officers less money
than the state of Iowa. No state
stands better as to the character of
her state officers, as to her finances
than does Iowa, save and except Cali
fornia as to finance. I am opposed
to high salaries and opposed to leav
ing it to the legislature. When the
constitution goes to the ppopln. they
want to know what they have to do
financially as well as otherwise, if it
is found the salary is too low, the
people may change it. If you elect
an honest man he will not take a dol
lar that does not belong to him. if
he becomes a beggar by it, and while
I dissent that low salaries make
thieves, I am willing to pay gentle
men what they. are worth.
Mr. CASSELL. Mr. Chairman.
The convention seems disposed to
have the governor reside at the capi
tal. It is well known to all the gen

tlemen, that as a general rule this is
the most expensive place in the state
to reside at . I am pretty well post
ed in the rents and so forth in this
place and perhaps a few figures on this
question would not be amiss to show
how much the governor would make
out of $3,000. In the first place it
would cost him eight hundred or a
thousand dollars for the rent of a
suitable house. It is not likely that
a gentleman elected governor would
like to bring his own furniture here.
It would probably cost $2,000 or
$3,000 to furnish a house appropri
ately to receive officials from other
states. It has been customary for
the state officials to have a reception
occasionally, this cannot be done for
less than five hundred dollars. This
consumes the whole of the $3,000.
What does the governor have for
the labor he performs for the state?
If we want good men, men appropri
ate to transact our business in a
proper manner, we should certainly
be willing to pay them a decent sal
ary over and above his expenses.
It seems to me that $3,000 additional
to his expenses would be a very small
sum. Suppose you elect a merchant
or a legal gentleman, whose income is
$3,000 to $5,000, would you ask him
to sacrifice his business or profession
to come here to be governor and
leave the office with less money than
he had when he took it, in addition
to losing custom? I think this ques
tion should be postponed. Some
action might be taken on the resi
dence of the governor. If we agree
to purchase the residence the salary
should not be so high. In case the
convention does not see fit to pass

SALARIES OF STATE OFFICERS

451

Tuesday]

GRIGGS -BALLARD— WOOLWORTH

[July 18

that resolution, I am decidedly in
favor of $6,000.
Mr. BALLARD. Let me ask the
question — does not history show that
the small salaries secure competent
officers? Mr. CASSELL. No, sir, I think
not. Mr. GRIGGS. The ideas advanced
by the gentleman from Otoe certainly
meet my approval. I am opposed to
making the salary of the governor
$6,000. I do not think it would be
required; It would not be policy.
Neither am I in favor of placing it
at $2,500. I do not believe any man
who has the ability to act as gover
nor would accept such a salary, and
leave his business to come here.
Leave it so that the legislature may
change it when necessary. The gen
tleman from Washington says he
knows a great many men capable of
discharging the duties of the gov
ernor who are at present living in the
ground. Mr. BALLARD. I said I was op
posed to fine palaces and high sala
ries when many of our citizens lived
in the ground. I did not say they
were eligible for governor, yet I
do say I do not think they are not.
Mr. GRIGGS. Bring them into the
position where they come in contact
with men from all parts and have to
entertain visitors and they will be
placed in different circumstances. I
am opposed to those insufficient sala
ries, and I believe that the gentlemen
from Washington and Cass who are
the advocates of the low salaries, are
the enemies of the state. What man
will come here for $2,500 when it

will cost him $3,000 or $4,000 to
pay his expenses while here?. It al
lows no man to accept the position un-
unless he has lots of money to spare.
I am opposed to allowing any man,
just because he has the money, to
step in and take the place in prefer
ence to a man who is just as worthy,
but is unable because he is poor. I
believe any man whose ability is such
as to entitle him to the position has
the right to accept it; and I am op
posed to inadequate salaries.
Mr. STRICKLAND. I should sug
gest that this be re-committed; and
that when the committee rise they so
recommend; or pass the section
over. Mr. WOOLWORTH. I hope this
will not be sent back to the commit
tee without some expression on the
part of the house on the matter. I
am satisfied the committee are not
likely to make a report very unlike
that which they have already made.
There was considerable disagreement
between the members of the commit
tee upon this matter, and they came
together as well as they could, and I
think it is desirable that when it
goes back to the committee it should
go back with some expression of the
house in reference to this matter.
And now, sir, perhaps this is as good
an opportunity as I shall have to ex
press my views upon this matter in
all its different aspects. I am op
posed to the suggestion made by the
gentleman from Cass to remit this
matter generally to the legislature,
for the reasons I stated when upon
the floor before. But, at the same
time, I recognize the cogency of the
argument of the gentleman from

452

SALARIES OF STATE OFFICERS

Tuesdayl

WOOLWORTH

[July 18

Otoe in resnect to the changes which
must, and havs and are likely to take
place in the valae of money, and the
expense of living. And that it is de
sirable that this matter should be
made, if possible, subject to some
fluctuations. There are serious de
fects, I appreliend, in the way of
realizing the remedy he suggests — a
maximum and minimum salary. I
think it will be exceedingly difficult
to frame a provision to be incorpo
rated in the constitution fixing a
maximum salary and a minimum
salary, and leaving it to the legisla
ture what the entire sum to be given
shall be? But, I shall have this pro"
position to make when the right time
shah come — that a proviso be add
ed at the end of the section that at
the. expiration of some period of
time the legislature may readjust
these salaries, and at the expiration
of like periods of time like re-adjust
ments may be made — all by a general
law. I know it may be objected that
this will change the officer's salary
during his term of office; but that
same objection might be made to
the suggestion of the gentleman from
Cass, which, I understand is approved
by some of my colleagues. If the mat
ter be left with the legislature then
change might be made during the
the term of office of the incumbent. It
seems to me that the difficulties of
the case would be somewhat obviated
by providing that the legislature
might, by general law, at certain
specific times, re-adjust these sala
ries. That is all I propose to say
with reference to the matter. And
now I wish to say something with
reference to what these salaries shall

be as fixed in the constitution. Now
I know perfectly well that this is a
very troublesome matter for us to
come to an agreement upon. Our
habits of living and our employments
are so unlike that it is exceedingly
difficult for us to come to a conclu
sion. Now, with the very small fami
ly I have, and accustomed, and, from
taste preferring, an exceedingly mod
est way of living, I can afford to
live, and I presume I do live, and my
colleague before me knows it per
fectly well, on a very moderate sum;
but there are gentlemen accustomed
to a little freer way of living, who.
have a larger family, and they are ac
customed to the expenditure of much
larger sums of money; and so oth
er gentlemen here; pursuing employ
ments that do not call for the mode
rate expenditure in which I myself
indulge, are willing to establish
smaller salaries than I think right.
And so it is that we have great dif
ficulty in coming to an agreement.
I see how troublesome it will be, and
therefore I desire to invoke not only
the attention but the utmost liberali
ty towards one another's views in the
consideration of this subject. And
right here I beg to answer an enquiry
addressed by the gentleman from
Washington (Mr. Ballard) to the
gentleman from Lancaster (Mr. Phil
pott), as to whether the history of
state government throughout the
country showed that smaller salaries
did not secure competent officers. I
can answer the gentleman, and from
history, and I do answer him from
history when I tell him that small
salaries have not secured the best
officers, and I do answer him from

SALARIES OF STATE OFFICERS

453

Tuesday]

WOOLWORTH

[July 18

the history of the state to which he
appealed. I answer him from the
history of the state of Wisconsin. I
answer him from the history of many
states of this union, and I tell him
that the small salaries which have
beenfixed in the constitutions of those
states have not secured even com
petent or honest officers. Why, the
gentleman from Cass reads from the
constitution of Iowa, and shows that
salaries of the supreme judges were
fixed at $2,000. Well, sir, some of
the gentlemen who sat upon the
hench of the supreme court of Iowa ¦
have adorned that bench, and been a
credit to the state, but upon what
have they lived? Upon their salary?
No, they have not lived upon that.
One gentleman who fills the office
of judge has been compelled to edit
a Law Journal, which gives him
about two thousand dollars; he also
-fills the professorship of a law col
lege, which gives him about a thous
and dollars more. Gentlemen who
hll these offices there, are compelled
to eke out their salaries by means of
private funds or take other positions.
So much for a part of the history of
Iowa. Now I ask your attention to
still another page in her history. I
know that the private secretary of
one of the governors of the state of
Iowa was charged with very high
crimes, and was actually indicted by
a grand jury, but the matter was fi
nally smoothed over, in some way,
hut it is believed today by the peo
ple who are conversant with the facts
that he committted the crime for the
sake of advancing the interests of, or
rather for the purpose of securing
money for his superior officer. Gen

tlemen talk about meager salaries in
this state and malfeasance of state
officers. Let me tell you, you may
expect malfeasance and misdemean
ors in office so long as you pay such
low salaries. You pay small salaries
secure small men to fill your offices.
There are enough good men; com
petent men; honest men in the state,
but they cannot live upon the salaries
that you offer. They will not take
the offices. They have too much
self respect to take your offices. So
you get second and third rate men,
they take your offices and eke out the
salary with what they get otherwise.
I ask my colleague (Mr. Estabrook)
who formerly lived in the state of
Wisconsin, what has become of the
school funds that state received —
twice as much, when she came into
the union as Michigan received?
What has become of her school
funds, and her university lands? It
is one of the blackest chapters ever
written in the history of any state.
It was written by public officers who
were paid, each, two thousand dol
lars per year. Now sir, that is the
history of small salaries. That is
what comes of taking men who are
incompetent when they come into of
fice, and dishonest when they go out.
Forty thousand dollars of the
school monies belonging to the state
of Iowa were swept out of her cof
fers. Ten thousand dollars, perhaps,
were saved by paying her officials
small salaries and forty thousand
dollars were swept out of the state
coffers. These, sir, are histories
such as the gentlemen from Wash
ington (Mr. Ballard) desires. It is
the disgrace of this country sir, that

454

SALARIES OF STATE OFFICERS

Tuesday]

WOOLWORTH

[July 18

these chapters have been written in
almost every thing with which small
salaries are connected. See what
has been done in Nevada and Cali
fornia and other states of the west.
There never was a time since the
days of Kent, Spencer, Pratt and
Van Ness, we have had no such ju
dicial decisions anywhere else, as has
been recorded in the state of Califor
nia. Commencing with the Tenth
Volume of her Reports and coming
down to the Thirty-ninth, there is
not a judicial decision recorded that
does not command the attention of
all the iawyers of the land, today
¦they are quoted as law in Westmin
ster. How does it come that the
judges of that state are men of such
a high order of talent. It is because
their salaries are fixed at $10,000 per
annum, in gold. By paying this sal
ary the people of that state have se
cured for their judges men of as good
legal ability as can be found in the
United States, and with all her
wealth of mines, with all her wealth
of gold, the true wealth of the state
of California today consists in the
judgments of her courts recorded in
these twenty-nine volumes of her
decisions. There is a monument;
there is glory; tliere is wealth of
which any state may be proud, and
which is far superior to the wealth
which is dug out of the hillsides ot
the "golden state," and just so it is
in the executive department of that
state. The gentleman from Cass
(Mr. Maxwell) says he knows men
who are competent to fill the office
of treasurer of this state who would
be glad to take the office at a thous
and dollars per annum. I presume

there are accountants in this state
who are willing to take a thousand
dollars and do the duties of that ofr
fice. The First National bank at
Omaha pay their book-keepers, each
of them, $2,500 and some perquisites
which carry their pay up to $3,000 or
$3,500. Why the boy, not yet twenty
years old, who goes around to make
collections for that bank, is paid
$1,200 per annum, and you propose
to pay an officer of this state, into
whose hands shall pass the immense
sums of money belonging to the state,
what is paid these clerks and even
less. Why, what are the duties of
the governor, and what the duties of
the treasurer of this state? Simply
to keep accounts? I think their du
ties are very high duties. They are
duties which require not only labor,
time and attention, but they require
the highest — the most serious
thought and reflection. The consci
entious man who holds one of these
offices cannot help, if he would, but
be pressed with the cares and the re"
sponsibilities of his office. Why, I
would not give a snap for a lawyer
who would not be exercised — exer
cised, yes agonized at times with the
responsibilities forced upon him.
Every man must so feel at times or
else he is not the fit man for those
duties, and these officers must feel in
this way and feel this conscientious
ness and desire their whole duty, not
for themselves but for the state they
serve. To be an officer of this state
bearing upon his shoulders the re
sponsibilities that is always there
to be the chief executive or to hold
any one of the offices of the execu
tive department is an honorable trust.

SALARIES OF STATE OFFICERS

45 5

Tuesday]

MYERS— KIRKPATRICK

[July 18

worthy the abilities of wise, just and
high minded men, and those are the
men that can only be secured by pay
ing them for anxieties and care of
such office. Now sir, I am in favor
neither of paying $2,500, $3,000 nor
$6,000 to the governor, but I am will
ing to pay him $5,000. Offer that
amount and you will secure the
services of good men, and I am in
favor of giving each state officer
commencing with the secretary of
the state and coming down $3,000
each. I think these men are abun
dantly worthy of that amount if they
are worthy of the office.
Mr. STRICKLAND. Mr. Chairman.
I move the committee rise, report
progress and ask leave to sit again at
2 o'clock. The motion was agreed to.
Mr. MYERS. Mr. President. The
committee of the whole have had un
der consideration the article entitled
the executive, and have instructed me
to report progress and ask leave to
sit again at 2 o'clock. I move the
report be accepted and the request
granted. The motion was agreed to.
Adjournment.
Mr. BALLARD. Mr. President.
I move we adjourn until 2 o'clock
this afternoon.
The motion was agreed to.
So the convention (at twelve
o'clock and six minutes) adjourned.

Afternoon Session.
The convention was called hy the
president to order at 2 o'clock.
The secretary called the roll.

Committee of the Whole.
The PRESIDENT. The hour fixed
by special order having arrived, the
convention will resolve itself into
committee of the whole, Mr. Myers
in the chair.
The CHAIRMAN. The commit
tee of the whole have again referred
to them the article on executive. The
motion of the gentleman from Doug
las (Mr.  ) is pend
ing to insert $6,000 in place of $3,-
000 salary of governor.
Mr. KIRKPATRICK. Mr. Chair
man. I think the amendment should
not be adopted. I have heard no
good reason why it should. The
whole ground of American jurispru
dence has been gone over in the dis
cussion of this provision. My learned
friend from Douglas (Mr. Wool-
worth) delivered himself upon the
general subject of salaries of officers.
He adverted to the state of Iowa
very feelingly, and asserted that its
judiciary was inferior to that of other
states because of the niggardly sala
ries paid to them. I may remark
that I believe they will compare fa
vorably with any western state. He
also adverted to the high distinction
of the judiciary of California, the
great reputation it had, and attribut
ed it all to the liberal salaries paid
the judges of that state. I find on
examination the pay of the chief jus
tice of the supreme court of the Unit -
ed States was originally $6,000 and
associate justices $4,000. They hold
one session at the capital each year,
besides being placed on service in the
states. That had nothing to do with
the question before this committee.

456

SALARIES OF STATE OFFICERS

Tuesday]

KIRKPA TRICK— BALL ARD

[July 8

I contend that we do not need now
to employ this high legal talent; the
only argument in favor of a great
salary is simply this, that Lincoln is
an expensive place to live, he must
live in fine style, keep his carriage
and so forth. I dissent from all this.
I am very sure we will not make a
rogue out of an honest man by pay
ing a low salary. I beleive all officers
ought to be paid a fair compensation
for the services they are required
to perform. It would be prodigal
to pay an officer more than his serv
ices are worth. A gentleman from
Omaha' remarked that the chief book
keepers of the First National bank
there received a salary of $2,000 and
$2,500 a year, therefore the governor
should have at least $5,000. I
should say the money passing
through that bank in one month ex
ceeds the revenue of the state of Ne
braska. I would really prefer not
to fix the amount, but leave it to the
legislature to increase the salaries
when necessary. After looking over
the provision made for the pay of
state officers generally, I find the re
port is above the salary usually
given to governors in the west. I
"believe the governor of the great
state of New York only receives
a salary of $3,000 a year, and I be
lieve there are but two or three states
where the salaries are as large as
the gentleman proposes to have it by
this amendment. Now I do not pro
pose to go over the ground trodden
by some gentlemen to talk about
making men dishonest by low sala
ries. I do not propose to say a word
in that direction, no matter what my
private opinion may be on the sub

ject. Mr. BALLARD. Mr. Chairman.
If the convention will bear with me
a few moments I wish to reply briefly
to a remark or two made by my
friend from Douglas (Mr. Wool-
worth) for whom I entertain the
greatest respect. I do not wish to be
set down as one of those who advo
cate beggarly salaries. I do not wish
to be understood as advocating that
side of the house, nor do I wish to
be understood as advocating exhorbi-
tarit salaries with fine houses. Now,
suppose we look about us and apply
that rule and one that is applicable to
the every day transactions of life.
Suppose my honored friend, Mr.
Lyon here, proposes to take a farm.
He looks around and ascertains the
amount of money he has to expend,
finally determining that he wants a
farm of so many acres, and that he
wants it improved in this particular
manner and that acting wisely, he
counts the cost before he starts out.
Another gentleman pursues a course
contrary to this. The result is
patent to every observing man. Hence
it appears to me this state, being
young, we should consider whether
the taxpayers are able to pay these
high salaries. My argument is that
one man is just as good as another
provided he acts just as well. There
fore we should take into considera
tion the farming interest of this state
in this matter. I would be willing
to give the governor $10,000 if we
were able to pay it. I will now no
tice the remarks of the gentleman
from Douglas (Mr. Woolworth), and
the point at issue between us is, if
I understand him right that low sala-

SALARIES OF STATE OFFICERS

457

Tuesday]

BALLARD

[July 18

rles make thieves. Having taken
:some notice of a few things which
transpired in Iowa, in my argument,
Ihe gentleman from Douglas also
goes there to look up the business
transactions of that state for many
years; and he finds, finally, a mat
ter of which I, being in Iowa City at
the time know something about. I
was there at the time that unfortu
nate man of whom he spoke was in
dicted. It was about like this, and
was told me by Mr. Wesley Redhead:
'That this young gentleman, the pri
vate secretary of the governor of
whom the honorable gentleman
spoke, was generally believed to be
a thief before he came there, and the
people censured the governor for
bringing him there; and it was said
that the executive hired someone to
steal the indictment from the proper
office, and he gave something for it
and thought that would end it. I
want to show the gentleman some
stealing that was absolutely done
there. In doing so I shall merely
advert to the facts. One Thomas
H. Benton, and by the by, a good
democrat; yes, sir, and a good man,
held the office of superintendent of
that state for many years under a
salary if I mistake not, of $2,500 per
year. He served the people in that
capacity for many years; everybody
respected Tom Benton. All the
school fund commissioners through"
out the state, except very few,
thought the world and all of him. I
happened to be personally acquain
ted with Thomas Benton; official du
ties brought me in contact with him.
When he went out of office he did
:so with credit and honor to the state.

No one charged Thomas H. Benton
with being dishonest. A gentleman
by the name of James D. Eads was
elected to succeed him. Mr. Benton
was a good deal like my honorable
friend from Douglas — a man that
economized. But Mr. Eads was a
gentleman who could not live very
well with only one lady, and she a
lady of doubtful virtue. He some
times had two, and fine horses and
fine whisky induced him to do what?
It was not long before it was found
$40,000 of the school money of Iowa
was stolen. How does it come that
Benton was honest and Eads dishon
est? Now, I come to the position I
took in the first place. If a man is
honest in the first place his salary
don't affect him in the least, but if he
is a thief he will steal all he can. If
a low salary tempts a man to steal,
why don't he only steal enough to
make his salary respectable and then
stop? No. Such a man is a thief
and will remain so till he dies. Now
sir, I will refer to .the state of Penn
sylvania where salaries used to be
very low, and where they are not
very high now. Where I remember
the governor of that state only used
to get, I think, $1,-500 a year. Now
I would ask the gentleman to show
me a Dutchman in that state who
ever stole a cent. I will take an
other instance. These school fund
commissioners of whom I spoke
charged upon their books for the ser
vices rendered. Each man charged
just as he thought proper. These
accounts went up for allowance. It
was a subject of revision by the su
perintendent. The very men who
charged the highest prices and got

458

SALARIES OF STATE OFFICERS

Tuesday]

BO YD— WILSON- WOOLWORTH

i July IS.

the most money, were the very
school fund commissioners that stole
the fund. Now, it seems to me the
gentleman's rule will not work any
way we can fix it, and, therefore I
conclude it is unfounded. I am will
ing to say that the governor of this
state shall have $4,000, and I think
that is enough.
The CHAIRMAN. The question is
on striking out "three" and insert
ing "six."
The motion was not agreed to.
The CHAIRMAN. The question re
curs on the motion of the gentleman
from Cass to strike out $3,000 and
insert $2,500.
The motion was not agreed to.
Mr. BOYD. I move to insert
$4,000. Mr. CASSELL. I move to insert
$5,000. The motion of Mr. Cassell was not
agreed to.
The convention divided on Mr.
Boyd's motion when there appeared
ayes, 30 — noes, 13. So the motion to
insert $4,000 was agreed to.
The CHAIRMAN. The question now
is upon the section, as amended.
Mr. WILSON. I move that the
salary of the treasurer shall be
$3,000 instead of $2,500.
Mr. PAR CHIN. I move as an
amendment to make it $2,000.
Mr. WOOLWORTH. Mr. Chair
man. I desire very briefly to submit
to the committee one or two observa
tions with respect to this particular
salary. I had a conversation when
coming down here with some gen
tlemen, in reference to the office of
treasurer, and the proper manner of
taking care of the funds of the state.

He was a gentleman of large ex
perience and by the business in
which he was engaged was called up
on to take charge of large sums of
money. I asked him for informa
tion respecting this matter. He said'
come "do one of two things, either
give a very small sum, or else a very-
large sum. Either course will se
cure a first rate man. If you give a
very small sum then politicians and1
men who are not accustomed to the
care and management of large sums
of money will not desire the place,.
but it will be desired by banks and
financial men, who will use the
funds in their business. Then if you
give a large salary that really is a
salary to be proportioned to the-
duties connected with the position,
give a sum which will secure the ser
vices of a responsible and accurate
man." We pursued this conversation and
he developed to me an idea, which,.
at the proper time, it has been my
purpose to explain to the convention.
I was informed by him that it was
the practice of many large cities to-
deposit their funds in the banks, or
with individuals. This is the case
with the city of Chicago, which de
posits sums varying from half a mil-
.ion to two million dollars. The
city receives proposals from indi-
dividuals, and from corpora
tions, to take these funds, giv
ing back a certain sum, as inter
est. The person, or bank, who gives
the largest interest gets the money,
and the borrower then maks a de
posit of United States bonds as se
curity for this fund. The question
comes up, is it wise, or expedient for

SALARIES OF STATE OFFICERS

459

Tuesday]

WOOLWORTH— MCCANN

[July 18

us to adopt such a plan? If we do,
then the salary of our treasurer may
be smaller than if he will be required
to take charge of the large sums of
money belonging to the state. If I
would make any distinction between
them, I would make the salary of the
treasurer less than any other officer.
It is proposed to provide by the con
stitution that the actions of the treas
urer shall be examined by one officer
and the accounts adjusted by an
other. Thus a warrant on the treas
urer shall be drawn by one officer
and countersigned by another. If
that plan were adopted, there would
be no difficulty in keeping matters
straight; the warrant would be drawn
by the auditor and countersigned by
the secretary of state and then go to
the treasurer; then the treasur
er would be little more than
a book-keeper standing between the
auditing officers of the treasury de
partment and the disbursing officers.
It would be impossible for me to say
what the convention may do in re
spect to this plan for securing the
treasury. I think that if the treasur
er have charge of the state funds,
two thousand dollars is quite small
enough sum for the salary of this
officer. Mr. McCANN. Mr. President.
Without proceeding to discuss what
may, or may not be incorporated in
the report of the committee on reve
nue and finance. I shall give my
opinions and reasons for sustaining
this amendment making the salary
of the treasurer of the state $3,000
instead of $2,500, or any other sum.
Gentlemen, I don't believe it was the
intention of the intelligent men com

posing this committee to have the
affairs of the treasury in such shape
that while you pay your treasurer
four hundred or five hundred dollars
or even $3,000, as a salary, that
double that amount, or ten times
that amount may be used out of our
state funds in private speculation.
Any man who has a fair book-keep
ing experience, will bear me out in
this; that our state treasurer's books,
even as they are now kept by our
honest state treasurer, do not proper
ly show the condition of our finances.
It is very easy for the books of that
treasurer to be kept so that $50,000-
of the funds of the state of Nebraska
might be used by the treasurer. This
sum, at six per cent interest, will1
make the sum of $3,000 yearly inter
est. Now, Mr. Chairman, I believe,
that the matter which has been hint
ed at by my friend from Douglas (Mr.
Woolworth) foreshadows a policy
which will be adopted by the peo
ple of this state. If this is done, we
should pay our treasurer such a sal
ary as will pay a good and correct
book-keeper, and I take it that $3,-
000 is small enough sum for that.
Then you will have your funds to
let to the bank or corporation, or
book-keeper who can secure the same
and pay the greatest interest for the
use of it. I take it that if this policy
is adopted by this state, we will not
only secure our funds, but the inter
est also which will be added to the
revenue of the state. I hope that the
salary of the state treasurer will be
put at $3,000.
Mr. KIRKPATRICK. Mr. Chair
man. I hope this amendment to in
crease the salary of the state treas-

460

SALARIES OF STATE OFFICERS

Tuesday]

GRAY— STRICKLAND

July 18

urer to $3,000 will not prevail. I
think that the suggestion that the
treasurer will not be the custodian ol
the state funds at all, is a good one.
But why pay him $3,000 to do this
clerical book-keeping? I am told by
those acquainted with the duties of
this office that there is more business
done, more work done in the auditor's
office than in the treasurer's. I think
the auditor deserves the highest
¦salary. This suggestion about the
change in our financial system is a
very important one, but why this of
ficer should receive a salary of $3,000
«vhen we propose to give the audi
tor, and the superintendent of public
instruction but $2,000 each is more
than I can understand.
The CHAIRMAN. The question
recur? un inserting $2,000 instead of
J2,500. The amendment was not agreed
<o. Mr. GRAY. Mr. Chairman. I
move to strike out, in the last line
$1,500 and insert $2,000. I agree
with the remark made this morning
as to the duties of the attorney gene
ral and perhaps that amount $2,000,
would not be adequate to secure the
service of a competent lawyer. If we
are going to have this office in the
state it should be something more
than an ornament. It should be for
the performance of some important
duties and we ought to have a respon"
sible lawyer, but we will never be
able to get one for a small amount.
If you leave the salary as it is, lower
than that of any other officer, no re
sponsible man will accept it.
Mr. STRICKLAND. Mr. Chair
man. I move to "amend by striking

out $2,000 and inserting $2,500. I
think the arguments of the gentle
man are of considerable force. It
takes at least five years good study
to make a lawyer and several years
of practice before he would be compe
tent to fill such an office and I think
he is worth more than that small
amount if a lawyer is to be elected to
fill this office, who has any pride, as
a lawyer and a man ought to have, he
will necessarily have to move here
and spend most of his time here and
he could not live on less than $2,-
500. I should not wonder if the
humblest lawyer in our city but gets
that much and is it to be supposed
that a good lawyer will leave his busi
ness to come here for a less amount
than he is making at home. I am in
favor of giving more rather than less,
just to support the dignity of the of
fice. Mr. KIRKPATRICK. Mr. Chair
man. The main argument for giving
these large salaries is to support the
dignity of the office. I don't believe
we need such an office at all, but
when an attorney is needed we can
hire one.
Mr. STRICKLAND. Now we come
right to the question of dollars and
cents. Why they paid one gentleman
$500 for one night's work in getting
up the impeachment articles. Why
if we are to employ an attorney in
every special case it will cost in the
end far more than $2,500 a year, that
would be leaking at the bung hole
and saving at the spigot. Why, I
used to think the attorney general
was the mightest man on earth, and
he should be to be the legal counsel
of the state, he is the legal brains of

SALARIES OF STATE OFFICERS

461

Tuesday 1

STRICKLAND

[July 18

the governor and he ought to be a
man able to give proper legal advice.
Who should such a man be? Some
man who has no experience? No, sir.
I apprehend that the man who fills
this should have ability, for he will
have to contend with giants, in legal
intellect. He should be a man that
could take a whole corporation and
shake the rights of the state out of
it, if there be any sequestered there.
I apprehend that the state should
look well to it, that nobody should
occupy that place unless they be men
of ability and experience. Now, if it
is true as has been stated that every
thing that has been dug up nere
about the state troubles and losses is
owing to the want of proper legal
advice and I don't doubt it. Why
there is the more necessity to secure
a good man for this office, which can
only be done by paying a good salary.
I can see many things that ought to
be done by the state's attorney now.
Here is a body sitting as a delibera
tive body on the fundamental laws
of the state, that has incidentally
dug up this little matter of school
lands. It is not the duty of this con
vention to investigate this matter,
but it should be the duty of the at
torney general, and there are seve
ral other things that I could refer to
that have come under my observation
where the attorney ought to set him
self to work for the state. If we are
to wipe this office out entirely, let it
be done and then let us depend upon
hunting up some one who can attend
to this business for the state, but if
we are to have the office, let us have
the officer, who can perform the du
ties to the credit and safety of the

state. There is nobody particular to at
tend to anything, except it be a gen
tleman who is employed to prosecute
some individual case. I think the of
fice either ought to be abolished en
tirely, or else have such a salary that
some sound lawyer, who will be a
credit to the state and can handle-
these corporations will accept it.
Unless we can I am in favor of strik
ing it out entirely. $2,500 is not a
considerable sum of money for an
attorney. There is not a single gen
tleman of the bar who tends to re
spectability as an attorney, that can
live on less than that. The distin
guished honor is something, yet he
ought to be paid for his services. I
should be willing to pay the attorney
general the same I would pay the-
supreme judge or the governor, and
see that we had the best legal ability
in the state regardless of politics,.
one who will assert the rights of gov
ernment everywhere. Almost every
attorney general of the United States-
is subject to close criticism, they
work under a department learned in
law, and are served right along with
instructions in regard to their duty.
My friend Mr. Woolworth adverted to-
the fact of Mr. Poppleton getting a
salary of $10,000 a year, and I heard
one of the highest officers of that
road make the remark that they
would not lose his services for $2 5,-
00 0. Here is a corporation running
through the state, and there is no-
question affecting that road, but
what Mr. Poppleton is there with his
strength and power. You remember
one question wherein one county had
a claim of $30,000 against that road.

462

SALARIES OF STATE OFFICERS

Tuesday]

ESTABROOK

July 18

What did they do? Got a gentleman
of ability and paid him $4,000 or
$5,000. It is an actual necessity.
Let us make the attorney general a
respectable office and the people will
nominate a man who is able to fill
the bill with ability. If I had my
way I would have it $5,000.
Mr. ESTABROOK. Mr. Chairman.
I did not intend to say anything more
on the question of salaries, but I
esteem it my duty to make a remark
or two in regard to the salary of this
officer, and what I regard to be his
duties. In the first place let us see
what other officers of smaller char
acter in a somewhat similar category
have received in this state. They
used in the counties to employ, each
county for itself sometimes, for the
duties of prosecuting such offenses as
arose in the counties. They found
that did not secure the services of
very able men, in some counties
there were no lawyers at all. While
it did not secure the services of able
men, it did cost more than would pay
a liberal salary. In 1867 the legisla
ture passed a law creating the office
of district attorney whose duty it is
simply to go to the courts and prose
cute before the grand juries such of
fences as may arise, and it is his duty
to give advice to county commission
ers and the like. For that office the
state pays $1,500. The City of Oma
ha was authorized to employ a city
attorney; the duties of that officer
were somewhat of a kindred charac
ter of a district attorney. The salary
of that officer and which the city of
Omaha paid was $1,000 a year. But
for the attorney general of the state
of Nebraska you would pay but

$1,000 a year. It is suggested by the
gentleman from Cass (Mr. Kirkpat
rick) that the reason why they were
thus liberal in raising it from $1,000
to $1,500 was because of the dig
nity somewhat, but because they
were satisfied the officer had very lit
tle to do, that it was a sinecure, a fig
ure head. I think perhaps the labor
of the office has not commenced in
this 'state. This leads me to call at
tention to what I deem to be the du
ties of that officer if we provide for
him. In the first place many years
ago, in the capacity of private prac-
tioner at the bar, I was sometimes
engaged defending or prosecuting
the claims of persons who had pos
session of school lands. It is well
known that there is scarcely an im
portant town in this entire state that
is not built upon a portion of a
school section or in the immediate
vicinity. Your city (to Mr.
Campbell) is built upon a school sec
tion. A school section runs through
and into the very heart of the city
of Omaha today, which would bring
at least $50,000 to the school fund
to day as hard as times are. Per
haps some portion of Nebraska City
was settled upon before the lines
were laid. If not no man could ac
quire any kind of right to it. The
only method by which an individual
could have acquired a right to a
school section was to have lived up
on it before lines were run in the
field. The law was made so as to
extend the right to those who in
good faith went out upon the new
land, had settled down before the
lines were run, not knowing about
the school lands, thus giving them

SALARY OF ATTORNEY GENERAL

463

'Tuesday 1

ESTABROOK

[July IS

the same privilege as other land.
There is school land in the immediate
vicinity of Plattsmouth, Rock Bluff,
and indeed I think there is scarcely
an important town in the entire state
of Nebraska.
Mr. KIRKPATRICK. There is
none within three miles of Platts
mouth. Mr. ESTABROOK. The school
committee have learned that
none of these sections have been
confirmed, so that so far as the state
of Nebraska is concerned today, if
she does not own these sections she
owns nothing, and so far as the law
is concerned, unless there has been
something lost by acquiescing in the
fraud, these lands belong to the
state of Nebraska today. Now then,
is it necessary I should turn attention
to the other subject, as to what shall
be the duty of the law officer of the
state of Nebraska if inquiry is to be
made into this? If inquiry is to be
made into this question, whether all
these cases of the most valuable
lands in the state as to whether they
are still the property of the state
or not, if not, if some other sections
have been selected in lieu thereof.
Then let me call attention to one
other little matter that may by pos
sibility engage the attention of the
law officer of this state, a matter that
was developed in the legal procedure
a little while ago. That was as to the
manner in which a portion of the
500,000 acres of land appropriated to
the state was taken and given to
men from another state; and, so
far as the form of conveyance was
concerned, that land passed to a
company every one of whom resided

in the state of Iowa or some other
state. A representative of that com
pany came here and sought to take
that land, and did get it, and I think
they have it now. It is my opinion,
and as I give it for nothing it need
not be set down for a positive rule,
that that is just as much the proper
ty of the state of Nebraska today as
it ever was. If this be so, and you
make no provision concerning an at
torney general, either as to his du
ties or salary, and the proposition
should be made by this convention,
it having the power, to go out and
make an effort to secure to the state
that which, in right, belongs to it;
and you should look around to bee
who should be your representative in
the courts, what would you do? I
think you would be very careful as to
the man you would select. You would
select him on account of his qualities
as a lawyer. You would look for
the very best man that could be
found. Suppose his duties should
call him to come in contact with the
interests of the Union Pacific R. R.
Co., who do you propose to send out
to meet the man who is the lawyer
of that company; the man who is
regarded all over the United States
as a great intellectual giant? Do you
propose to go with a sling as did
David? He acted upon inspiration.
Unless' there is something of a Di
vine interposition it would take
something more than a figure to cope
with Mr. A. J. Poppleton. You set
your man to work. He goes on and
reclaims the land of this state which
has been improperly and illegally ta
ken from it. Now, the laborer is
worthy of his hire. What do you

464

SALARY OF ATTORNEY GENERAL

Tuesday]

ESTABROOK— CAMPBELL

[July 18

propose to pay him? Let it come be
fore a court and jury, and it shall
turn upon the naked question of
what has been recovered from the Io
wa railroad company, and what
would you pay him? And you call
upon the entire bar of the state to
give their idea. I undertake to say
the sum shall not fall a dollar short
of $5,000. You may call upon every
lawyer in the whole northwestern
territory, and if we pay him for his
services it shall not be a cent less
than $5,000. Well, then, if he shall
contend against all these giants, and
bring all his legal power and knowl
edge to bear, and he is successful,
why it is cheap at $10,000 when you
get through. And if you fix his sala
ry below that of any other state of
ficer you do an injustice, unless you
insert, in some other place a provis
ion to furnish him assistance. Hav
ing thus briefly alluded to these
things, I will only simply suggest
what there should be for this officer
to do besides his other duties, and
prosecuting in every criminal case
which should come before the su
preme court. You could not hire any
lawyer to go out from his ordinary
practice finding his authorities in or
dinary law books and prosecute these
cases and it should not be less than
$1,000. Mr. CAMPBELL. I was rather in
clined to think at first that this sal
ary should be raised, but since the
two last gentlemen spoke I am sat
isfied now that we should have no
attorney general at all. Listen at
the history of the attorney generals
in this state and territory. To be sure
Gen. Estabrook talks about these

things very liberally; and he came
down to our town (Nebraska City)
and instigated some private indi
vidual to file a caveat against forty
acres of land I had the title to; and
instead of prosecuting it through to-
its completion the state had to em
ploy a Mr. Washington of Washing
ton City, and pay him, I think $500
to get that forty acres back. Our at
torney general did not do us any
good then and I would like to know
what good our attorney generals have
done us since that time. They have
let land be taken from us by the
hundreds of sections at a time; did
not even inform the legislature last
winter that the land office had no
right to fees in entering this 90,000
acres of land, which was to go to the
Agricultural college. It seems that
the whole legislature was ignorant of
that fact; must have been, because
they appropriated $800 to pay for en
tering. I am satisfied Mr. Chairman,
that we do not need this fellow at all,
never did, and never expect to. Now,
when a man has anything to do in the
law he selects a good lawyer and
pays him well; and when he has no
use for him he don't have anything
to pay. I move that wherever the
words "attorney general" appears it
shall be stricken out.
Mr. ESTABROOK. I second the
motion. It is the best idea yet.
Mr. LAKE. Mr. Chairman. I
hope that the motion will not pre
vail. We have seen the result of
leaving the constitution without pro
viding for this office. Notwithstand
ing it has been left out of the consti
tution the legislature has provided
for one. I prefer it should be an

SALARY OF ATTORNEY GENERAL

465

Tuesday]

LAKE-HASCALL

[July 18

office recognized by the constitution,
and with those safe guards thrown
around it that it requires. The of
fice should be created and provision
made for the election of a suitable
person and every reasonable compen
sation for performing the duties of
that office. I do not altogether agree
to the ideas that have been advanced
in respect to the amount of the sala
ry. It is well understood that the at
torney general often has the power
to earn through his profession quite
a sum of money aside from that
which he gets from the state. That is,
if he be a lawyer of sufficient reputa
tion to fill the office as he ought to
fill it. Now it is said that you must
pay a man so as to completely make
good for the losses to him sustained,
perchance in breaking up his busi
ness in another portion of the state
and removing to the capital. I do
not subscribe to that proposition. He
will willingly come to the capital,
where there is much business con
stantly accumulating; and it will be a
good thing for him. He will neces
sarily accumulate quite an amount
of professional business. Many an
attorney, who has acquired perhaps
quite a competence at the bar, who
is in good standing at the bar, would
be willing, for the sake of the honors
of the position, together with a reas
onable compensation he receives from
the state together with the amount
he can make in the legitimate prose
cution of the business of his profes
sion, will willingly come to the capi
tal for the time being, and perhaps
make it his permanent home. But the
state can be relieved of that em-
barassment by selecting gentlemen in
30

the immediate vicinity of the capital.
There are plenty of gentlemen here
to fill the positions, who will not have
to remove to the state capital. So
gentlemen, of the committee, and Mr.
Chairman, let us provide for this of
ficer, which we are certain the legis
lature will secure. It will be one
of the first things the legislature will
do on their first assembling here to
elect that officer and provide for his"
maintenance. I trust he will be re
tained as one of the state officers'.
Mr. HASCALL. Mr. Chairman. I
am in favor of retaining the attorney
general, and think we ought to pay
him at least $2,000 per year. I think
if the state has legal business to tran
sact, it is more proper for it to be pro
secuted by the attorney general of
the state than for advice to be given
by some man hired by the state, and
I certainly am opposed to paying an
inadequate compensation. I am very
glad we are to pay our governor a
reasonable compensation. I am will
ing to pursue the same course in
regard to all the other state officers.
I am aware that this official might be
dispensed with and a states attorney
hired, as occasion might require.
This office under the present man
agement is not a constitutional pro
vision and there is not the dignity
and responsibility connected with it
which might be desired and the com
pensation is such that it belittles the
position. We propose now to place
the state upon a higher position. My
friend from Otoe (Mr. Campbell)
was in favor of the office of attorney
general being retained until refer
ence was made to the state securing
certain school lands, and from that.

466

OFFICE OF ATTORNEY GENERAL

Tuesday]

TOWLE

[July 18

time he has opposed it because he
was afraid that some of these lands
might be secured to the state. I
don't say that my friend lives upon
school land, but it looks very strange
that he should change just at this
suggestion. I will not judge the gen
tleman harshly, for I think he wants
the state to get its dues. He refers
to the "Solons" in the last legisla
ture. I don't know that we had any
"Solons" in the last legislature. I
have not discovered any "Solons" in
this convention. Perhaps the "So"
Ions" were in that territorial legis
lature, (and perhaps my friend, from
Otoe (Mr. Campbell) was a member)
in which they passed an act relating
to a mule and its owner. They got
the business somewhat mixed and fi
nally got the mule where the man
should have been, and vice versa.
(Laughter.) I supposed that the
men composing our last legislature
were a fair average sample of the
men of this state. The fact that we
made an appropriation to secure the
state's title to our agricultural lands
has been alluded to. The matter
came up about the last of the session
and as the appropriation called for
less than $1,000, and the object
was to secure our title to these lands,
in the hurry of closing up the busi
ness of the session, the matter was
not inquired into as closely as it
would have been under other circum
stances, and we made provision that
only so much of the appropriation
as would be required, should be
used. I think this question with regard
to the salaries of our officers has
been ably discussed. I think $3,000

is a reasonable compensation to pay
these officers and I think the state
will receive about three times that
amount each year, if we secure able
and competent men.
Mr. ¦ TOWLE. Mr. Chairman. I
believe we have already created
two boards, in which the attorney
general is made a member. Now if
we dispense with the services of the
attorney general, we shall disarrange
to a considerable extent, the arrang-
ments already made. It has been
stated here that the value of our
state lands amounts to $50,000,000.
Now, Mr. Chairman if you owned all
the real and personal property within ¦
the limits of the state of Nebraska
— if you owned ninety thousand
acres of land in the best portion of
the state, would you not secure the
best legal talent to be had to look
after and protect your rights? The
gentleman. from Otoe moves to strike
out the position altogether the ques
tion then is, how shall we employ a
lawyer to look after our rights, and
business of the state? If it is left
in the hands of the governor, some
political hack will be employed. I
tell you, Mr. Chairman, it is my
opinion we should pay a high salary
and then we will find a good man
who will take the position. You will
find the very best legal talent in the
state seeking the position. I be
lieve there are questions arising in
the departments here, which daily
and hourly require the advice and
opinion of an attorney general. It
requires a man who will be able to
give an opinion upon the spur of the
moment. It is the duty of the attorney gene

SALARY OF ATTORNEY GENERAL

467

Tuesday]

MASON

[July 18

ral to furnish to the several state of
ficers legal counsel on points aris
ing in the performance of their duties
so as tp prevent difficulties, and pro
pose such remedies as are necessary
for difficulties. For these reasons I
am not in favor of abolishing the of
fice, but I am in favor of raising the
salary. Mr. MASON. Mr. Cnarrman. I
regret exceedingly that it should be
deemed necessary to reflect? upon the
action of any department that has
preceded us, and I regret further,
that it should be deemed necessary to
defend the public acts of any one;
public acts should stand as their own
defenders. The immediate question
before the committee is that we
strike out all contained in the section
relative to the office of attorney gener
al, to that question I propose to ad
dress myself for a single moment.
The true question is then, what is the
best way to provide for the state that
legal counsel which is necessary?
Shall we leave it open to the legisla
ture or shall we provide a depart
ment, and an attorney general for the
[eye] on the business of ihe state for
state who shall have charge of that
department, and keep track of its
business and watchful and diligent
all times? My opinion is that we
need an attorney not for every par
ticular case, but for every day. The
different departments need legal ad
vice every day. Think* for a single
moment of the condition of leaving
the state without a law officer. I
differ from my colleague Mr. Camp
bell. I think from the state of facts
referred to by the gentleman from
Douglas (Mr. Estabrook) that the

state needs the best of lawyers to
look after her interests. Not so
much for correcting the faults after
they occur, as for giving that advice
which will save the state from those
difficulties. An attorney for this
state such as we ought to have, would
save to the state not less than $60,-
000 and not over- work himself then,
not so much in digging up what has
been lost, as in giving wise counsel
to the various departments of the
state, and establishing wise forms so
as to secure for the future as well as
correcting the faults of the past,
then , sir, I may conclude that the
motion to strike out should not pre
vail. Then, sir, as to the salary I
will say that I don't think $2,000 is
enough, but $2,500 might be suffici
ent, and for these reasons, Mr. Chair
man, I hope the motion to strike out
will not prevail, and I hope the com
mittee may agree upon $2,500. And
as I took occasion to say this morn
ing, if gentlemen will reflect for
a single moment, whoever made a
cent by hiring cheap help. If he is
here, I would like to have him rise
and tell it. I have had something to
do with employing men for taking
care of my own affairs. I never hired
a cheap man but what I paid double
what it would cost to pay. a faithful,
trustworthy man. This thing of ca
pacity is an article of merchandise
in the market, it is for sale, for hire
and the biggest price takes it and in
this day and age of the world, a day
and age which may be characterized
as a money age of the world. Most
emphatically men no longer work for
glory. The statesman is no longer
heard in the halls of legislature

468

READJUSTMENT OF SALARIES

-Tuesday]

BOYE— ESTABROOK— MASON

[July 18

leading onward in the pathway of
progress simply for glory, and, the
philosopher is no longer found in his
study simply for the glory of it. It
is emphatically an age of money, be
cause in this age money is power, and
if we have competent, energetic,
faithful and trustworthy officers
we must pay them. I think
the amendment proposed is within
reasonable bounds and for that reas
on I trust the proposition to strike
out will not prevail, and that the
amendment proposed will prevail.
The motion to strike out was not
agreed to.
The CHAIRMAN. The question re
curs on the motion to insert $2,500
instead of $1,500.
The motion was agreed to.
Mr. BOYD. Mr. Chairman: I
offer as an amendment to the section
to follow at the close of the section,
"provided at the expiration of
five years, and every five years there
after the legislature may by general
law, readjust the said salaries, but
the salaries of the officers named in
the section shall not be increased or
diminished during their official
term." I am not in favor of putting a
clause in the constitution fixing the
salaries as long as this constitution
shall last. I do not think we know
what the salaries should be in five or
ten years. I hope the amendment
.will prevail.
Mr. ESTABROOK. It seems to
me that the last clause is needless. I
move to strike out the last clause.
The object is that one individual may
not so manipulate a legislative body

as to secure a higher salary for him
self. Mr. BOYD. Mr. Chairman. The
reason I worded it as I did is, that
the end of five years may come when
some of these officers are just elect
ee! and it would be hard for them to-
have their salaries diminished.
Mr. MASON. Mr. Chairman. It
seems to me the amendment to the
amendment ought not to prevail, for
the very cogent reason suggested by
the gentleman from Douglas (Mr.
Boyd), that this readjustment might
take place in the middle of a term
of the various officers, or at the com
mencement. The readjustment takes
"place every five years, but does not
apply to those in office, nor during
their term of office but to their suc
cessors who may be [elected] there
after, and I think that after a little
reflection the gentleman from Doug
las (Mr. Estabrook) will withdraw
his amendment for . this reason. It
then makes the salary the same that
is provided by law, without the pow
er of the legislature to change.
Mr. ESTABROOK. It is not a
matter I am captious about. It seems
to present the idea that the legisla
tive bodies which come hereafter, are
those who can be worked upon to
raise the salaries of officers. I think
we will not have such.
Mr. WOOLWORTH. Mr. Chair
man. This is the very amendment to
which I referred in some of my re
marks this morning. There might be
fluctuations in the value of money
which we cannot foresee. I think
the proviso presented by Mr. Boyd
will be adopted as it was presented

OATH OF OFFICE

469

Tuesday]

HASC ALL-ROBINSON- WOOLWORTH

[July 18

hy him.
The CHAIRMAN. The question is
on the amendment of Mr. Estabrook.
The amendment was not agreed to.
Mr. MOORE. Mr. Chairman. I
think it would be well to amend the
first line of the proviso. I move to
add after the words "expiration of
five years" the words "from the adop
tion of this constitution."
The motion was agreed to.
The CHAIRMAN. The question
now is on the motion of the gentle
man from Douglas (Mr. Boyd).
The motion was agreed to.
Mr. HASCALL. Now that we have
stricken out $1,500 and inserted $2,-
500 in the case of the attorney gener
al, we can embody the two sections
in one. I move to make it read as
follows: "The salary of the treas
urer and attorney general shall each
be $2,500."
Mr. ROBINSON. I move to strike
out the second word "salary" in
seventh line and make it "salaries."
The CHAIRMAN. I will make
that alteration. The question is on
the motion of the gentleman from
Douglas (Mr. Hascall).
The motion was agreed to.
Mr. WOOLWORTH. Mr. Chair
man. I move the adoption of the
section. The motion was agreed to.
Next the Chairman read the sec
tion as follows: a
Sec. 24. An office is a public
position created by the constitution
or law, continuing during the pleas
ure of the appointing power, or for a
fixed time, with a successor elected or
appo'nted. An employment is an
agency, for a temporary purpose,

which ceases when that purpose is
accomplished. The 2 4th section was adopted.
The Chairman read the next sec
tion as follows:
Sec. 25. All civil officers, except
members of the general assembly
and such inferior officers as may be
by law exempted, shall, before they
enter the duties of their respective
offices, take and subscribe the follow
ing oath or affirmation:
"I do solemnly swear (or affirm)
that I will support the Constitution of
the United States and the Constitu
tion of the state of Nebraska and
will faithfully discharge the duties of
senator (or representative) accord
ing to the best of my ability; and that
I have not, knowingly or intentional
ly, paid or contributed anything, or
made any promise in the nature of a
bribe, to directly or indirectly influ
ence any vote at the election at which
I was chosen to fill the said office,
and have not accepted, nor will I ac
cept or receive, directly or indirectly,
any money or other valuable thing,
from any corporation, company or
person, for any vote or influence I
may give or withhold on any bill, reso
lution or appropriation, or for any
other official act."
Th's oath shall be administered by
a judge of the supreme or district
court, and the secretary of state shall
file and record the oath, subscribed
by each officer. Any officer who shall
refuse to take the oath herein pre
scribed, shall forfeit his office and
after conviction of having sworn
falsely to, or of violating his said
oath, shall forfeit his office, and
shall be disqualified from holding
any office of trust or profit in this
state. No other oath, declaration or test
shall be required as a qualification.
Mr. KIRKPATRICK.' It seems to
me there is something muddling in
this section, which I would call the
attention of the Chairman of the
committee to. "All civil officers.

470

OATH OF OFFICE

' Tuesday]

WOOLWORTH— ESTABROOK

[July 18

except members of the general as
sembly and such . inferior officers as
may be by law exempted, shall, be
fore they enter on the duties of their
respective offices, take and subscribe
the following oath or affirmation,
etc." I would like the gentleman to
explain. Mr. WOOLWORTH. The three
words "senator or representative"
should be stricken out, and a blank
left there for whatever office it may
be required. I therefore move that
the section be amended by striking
out the words "senator or representa
tive" in the fifth line, or the second
line of the oath, leaving a blank in
the place for thereof.
Mr. TOWLE. I would suggest to
the Chairman that that is not the
difficulty. It says "all civil officers"
and then goes on, and this. oath ap
plies directly to them as well as
others. Mr. WOOLWORTH. Yes, that is
very true. Nevertheless, I believe in
leaving the oath just as it stands. I-
believe the last clause of the oath is
just as necessary as any other part
of it. That is to say, I would make
these state officers so that they would
not use their influence in any way to
affect the action of the legislature in
passing a bill, resolution or appro
priation. Those state officers would
not be induced by any consideration
to bring their official influence to
bear upon the legislature at all, and
I would simply leave these words as
;they stand. "And for any other of
ficial act" is certainly broad enough
to cover all.
Mr. ROBINSON. I move to, strike

out the words "senator or representa
tive" and insert "of the office to
which I have been chosen."
Mr. ESTABROOK. Mr. Chairman.
The latter part of this oath com
mends itself to me. It is something
new. I like many things where they
offer any good or benefit. But there
is this objection to it at least — it is
not germane to the article in which
it is found. I would ask you, sir, as
the chairman of the committee of leg
islation whether the oath prescribed
for the members of the legislature is
not prescribed in the article on the
is prescribed.The CHAIRMAN. It is. •
Mr. ESTABROOK. It is proposed
that in the executive article the oath
is prescribed.
Mr. WOOLWORTH. It says "ex
cept members of the legislature."
Mr. ESTABROOK. I think it has
application to members of the legis
lature and anything else. Commenc
ing at the third line it says, "and that
I have not knowingly or intentionally
paid or contributed anything, or
made any promise in the nature of a
bribe, to directly or indirectly influ
ence any vote at the election at which
I was chosen to fill the said office, and
have not accepted, nor will I accept
or receive, directly or indirectly, any
money or other valuable thing, from
any corporation, company or person,
for any vote or influence I may give
or withhold on any bill, resolution or
appropriation" — that has reference
directly to the action of a member of
the legislature — "or for any other
official act;" and that seems to be the
whole point there is in it. Now,,l

OATH OF OFFICE

471

Tuesday]

MANDERSON— ESTABROOK— KIRKPATRICK

[July 18

will ask the Chairman of the com
mittee if it does not refer exclusively
to the action of the legislature?
Mr. WOOLWORTH. I should say
it did, as it stands. If you will
amend but one thing at a time you
will reach that question after a while.
If you will adopt the motion I have
made to strike out the words "sena
tor or representative" and leave a
blank. Then go down to the bottom
part of the oath and strike out the
word "vote or."
Mr. MANDERSON. Allow me to
suggest that these civil officers, are
members of the different boards or
will be, and as members of such
boards they will have some appropri
ations. Therefore, it seems to me it
is better the words "vote or" should
he left in. ,
Mr. ROBINSON. The lieutenant-
governor has a vote.
Mr. ESTABROOK. Let me en
quire if it is a proposition that the
auditor shall swear before he enters
upon his office, that" he will take no
bribe, etc., for any vote he may give.
Mr. WOOLWORTH. Yes, Because
he is a member of some board and
will be required to vote.
Mr. ESTABROOK. Mr. Chairman.
If the committee will indulge me a
moment, I think it is the oath pre
scribed in the Illinois constitution.
"I do solemly swear, or affirm, as
the case may be) that I will support
the constitution of the United States,
and the constitution of the state of
Illinois, and that I will faithfully dis
charge the duties of the office of —

 according to the best of my
ability." That is the way the Illinois consti
tution reads. I move that this oath
be substituted for the oath in the
printed bill.
Mr. PHILPOTT. Mr. Chairman. I
would ask the gentleman if he will
insert the words "and impartially"
after thfe word "faithfully".
Mr. ESTABROOK. Yes sir.
The CHAIRMAN. Gentlemen.
The question is upon the adoption of
the substitute. The committee di
vided and the substitute was agreed
to. Mr. KIRKPATRICK. Mr. Chair
man. I desire to call the attention
of the. committee to another matter.
In the fourth line, it is provided that
this oath shall be administered by
the judge of the supreme and district
courts, I think any officer qualified
to administer an oath, should admin
ister this oath.
Mr. STRICKLAND. I move that
we strike out the words "a judge of
the supreme or district court," and
substitute the words, "any person
authorized to administer an oath."
Mr. ESTABROOK. Mr. Chairman.
I move to strike out the 4th, 5th, 6th,
7th and 8th lines. That leaves it just
as it is in the Illinois constitution.
Mr. WOOLWORTH. Mr. Chair
man. These five lines are certainly
of no further use.
Mr. STRICKLAND. I withdraw
my motion.
Mr. LAKE. I would like to know
of the chairman of the executive
committee whether it is intended to
leave the article without any provis-

472

OATH OF OFFICE

Tuesday]

ROBINSON— LAKE— NE WSOM

[July 18

ion for the filing and recording of
the oath. If this is the case, per
haps it is well enough to strike this
out entirely.
Mr. WOOLWORTH. Perhaps it is
well enough to leave that.
Mr. ROBINSON. Mr. Chairman. 1
move that all that portion of the 4th,
5th, 6th 7th and 8th lines be strick
en out except from the word "court"
in the fourth line to the word "any"
in the 5th line. It will then read,
"And the secretary of state shall file
and record the oath subscribed to by
each officer."
Mr, LAKE. As I understand it,
Sec. 25 relates to all civil officers ex
cept members of the legislature. Now
is it intended by this committee to re
quire every civil officer in this state
to keep a record of the oaths admin
istered by them and send to the capi
tal of the state? If this relates to all
civil officers in the state then I am
opposed to it; because there are a
great many civil officers whose oath
of office should be kept on record in
the county where they hold their of
fice. If the section can be so modi
fied as to relate only to the officers
provided for in this constitution,
then I am in favor of it.
Mr. ESTABROOK. I think it is
safe to leave it as it is left in the
Illinois constitution.
Mr. PRICE. Mr. Chairman. I
will make a motion that the commit
tee do now rise, and report this sec
tion twenty-five, with the recommen
dation that it be referred to its ap
propriate committee.
Mr. ESTABROOK. Mr. Chairman.
I presume the only object in the com

mittee making this report and de
parting from the original article in
the Illinois constitution is to engraft
this additional oath, otherwise I pre
sume that they would be content to
allow the whole matter to remain
just as it was in the Illinois constitu
tion. Mr. ROBINSON. Mr. Chairman.
I would like to amend my amend
ment by adding after the word "offi
cer" the words "named in the first
section of this article."
Mr. LAKE. Mr. Chairman. I
would prefer myself to leave this
matter entirely to the legislature to
provide where this shall be recorded.
If we make no provision of this kind
it will be left there as it is in the
Illinois constitution. We have pre
scribed the oath as in the Illinois
constitution and why not strike out
the rest of the section.
Mr. ROBINSON. I withdraw my
amendment. The CHAIRMAN. The question is
on striking out all from the beginn
ing of the fourth line to the end of •
the eighth line.
The motion was agreed to.
Mr. NEWSOM. Mr. Chairman. I
desire to amend the oath as follows:
by adding the words "and that I
have not directly or indirectly paid
or contributed anything or made any
promise in the nature of a bribe, to
directly or indirectly influence any
vote at the election at which I was
chosen to fill said office, and I have
not accepted nor will I accept or re
ceive directly or indirectly any mon
ey or other valuable thing, from

OATH OF OFFICE

473

Tuesday]

HASCALL— MANDERSON— MASON

[July 18

any corporation, company or person,
for any official act."
Mr HASCALL. Mr. Chairman. It
seems to me we have passed upon
this question. I raise that as a point
of order.
Mr. WOOLWORTH. Mr. Chair
man. I think the committee has ex
pressed itself that they think the
•oath should be the usual oath of of
fice. Mr. NEWSOM. Mr. Chairman. I
have spoken to the mover of that
amendment —
Mr. HASCALL. I call the gentle
man to order. I have raised a point
-of order on which I ask a ruling of
the chair.
The CHAIRMAN. The chair is of
the opinion that the change in the
-phraseology makes it a different
-motion and that it is in order.
Mr. WOOLWORTH. If we add
that, Mr. Chairman, I shall be in fa
vor of restoring that part of the
•section which has just been strick
en out.
Mr. MANDERSON. Mr. Chairman.
I think that many who voted for the
¦substitute offered by my colleague
(Mr. Estabrook), voted for the pur
pose of striking it out because there
was something in it objectionable,
the amendment as' I understand it
leaves out that objectionable part in
the last line, leaving only the word
"any official act." this motion re
ceives my hearty support. It may be
-objected that you cannot make a
man honest by administering an
-oath to him. My reply would be that
you cannot hurt him. I think in re-
:gard to that like the old man in the

south, when he was called upon by a
union officer to take the oath to sup
port the government. "Well," said
he, "I have taken it about fifty times
already, but I can take it again for
I feel better every time I take it."
Mr. ESTABROOK. Mr. Chairman.
I have an amendment to the amend
ment. I will state before you read it,
that if we are now approaching the
millennium we ought to make this
perfect in every particular.
The Chairman read the amend
ment as follows: To add to the
amendment the words "nor have I,
to my knowledge, committed a breach
of any of the provisions of the crimi
nal code; nor broken any of the ten
commandments." (Laughter.)
Mr. MASON. In the consideration
of the amendment, I propose to con
sider the original as well as the
amendment offered by the gentleman
from Douglas (Mr. Estabrook.) It
sometimes becomes necessary, when
one stands paralyzed in the presence
of a just proposition, to attempt to
avoid its effects hy heaping upon it
ridicule. Now I will not do this in the
amendment proposed by the gentle
man from Otoe (Mr. Newsom) and
had my attention been directed to this
matter when the motion to strike out
was made I should have resisted it,
and why? Not sir, that I believe the
millennium is here, but for the reason
that this original amendment is
sought to obviate the evil that perme
ates society; every gentleman in
this convention is cognizant of, and it
is useless to shut our eyes to the fact
that in elections as they are ordinari
ly conducted, there are means used

474

OATH OF OFFICE

Tuesday]

MASON

[July 18

directly or indirectly, either by call
ing into requisition the grog-shops,
or some other questionable means to
secure a larger vote. It was against
this evil I apprehend that the com
mittee prepared this amendment, and
as has been well said by the gentle
man from Douglas who sustains the
amendment offered by Mr. Newsom,
"Who is to be hurt by it?" Let me
inquire of the gentlemen of this con
vention if it is safe, if it is just to
this state, to turn the keeping of its
ark and covenant over to those, who,
by the questionable means of bribery
or fraud have secured the custody
and keeping of this sacred trust? All
that this oath says it that this con
vention and the people when they
adopt this constitution say that we
will not vote this sacred trust to the
keeping of one who to secure the po
sition is willing to exert all the ques
tionable means of influencing voters
by money or promises. Why sir, in
the consideration of a question that
came before this convention the oth
er day, I am not sure but it was the
gentleman from Douglas who alluded
to the matter of the election of va
rious officers through the power and
patronage of those in office and the
securing to their supporters official
position; and it is at this growing
evil that permeates and ramifies the
whole body politic, that this or
iginal amendment was offered, and
that the original report of the com
mittee was made. I am not particu
lar what language is used to cover
this case, I care not whether it be
the language used in the report of the
committee, or whether it be that
suggested by the gentleman who

¦ moves the amendment. But sir,
while there may be among the ten
commandments some that my friend
in his earlier day may have trespass
ed upon a little, it is not too much
to ask him to say that he has not by
any means suggested in this oath
the words "debauched or attempted
to debauch any electors at the polls."
It is for these reasons I regret that
by ridicule it was sought to paralyze-
those who in good faith, would so
far as in them lie, redeem this state
and the body politic from this ques
tionable mode of electioneering. Now
let us consider this oath in detail.
I desire to call the attention of the
committee to the amendment, and
then I desire to ask of this commit
tee what there is in it that should
cause any right-minded man to shud
der at retaining this oath. "And
that I have not, directly or indirectly
influenced any vote at the election
at which I was chosen to fill said of
fice." This is the first proposition.
Now is it just, is it right to entrust
the keeping of the sacred treasury of
the school fund, the keeping of the
ark and covenant of justice, or in
vest the chief executive with his au
thority if he in procuring the position-
has debauched electors by corrupt
promises or money?
By voting down this amendment
we negative the idea, and say, it
is right to resort to these means. The
first oath simply is "that I have not
directly or indirectly used money or
promises to secure the position to
which I am elected." Why sir, I
have often thought that we might be
approaching the millennium in gov-

OATH OF OFFICE

475

Tuesday]

MASON

[July 18

ernment affairs if this provision was
faithfully carried out and written up
on the hearts of men that participate
in the elective franchise. Would it
not do much to bring about the day
when corruption should cease, and
men meet in deliberative bodies
qualified from their culture, from
their character, their adherence to
principle, instead of taking those
whose capacity was greatest in ful
filling promises to find places for ap
plicants for office? It seems to me
this ought to commend itself to the
judgment of my friend from Douglas
who offered the amendment to the
amendment. The one sir, who
has stood on the very watch-
towers of the state sounding the
alarm of danger to other men.
How is it today? He will let a man
use these corrupt influences to obtain
position, The second clause of the other is,
"And I have not accepted, nor will
I accept or receive directly or indi
rectly any money or any valuable
thing from any corporation, company
or person for any official act." When
we were considering the pardoning
power, some gentleman on my
right suggested several cases in other
states where pardons were bought
and sold. What do we say? We
simply require the office holder to
swear that he will do no such thing,
and is this an unreasonable requisi
tion? It seems to me it is founded
in the very principles of Christianity,
as well as those of free government.
It seems to me it takes its root and
gathers its whole strength and vital
ity in the principles of christian so
ciety. These are only two points to

which the office holder is required
to swear in the original amendment.
Now let us consider the additional.
"Nor have I to my knowledge, com
mitted a breach of any provision of
the criminal code, nor broken any
one of the ten commandments." Now
sir, I do not know that I am very
much opposed to this addition as a
matter of principle, except that I
apprehend there are but few men
that run for office, but that may mis
represent the truth if they do not
tell a lie, and it might be going
rather too far to require such
persons to take that oath. The reas
on I oppose the provision of the
amendment to the amendment is
that it is seemingly to cast a slur at
the original. Now sir, I dislike to
take up the time of the committee,
but I simply call attention to the var
ious cases cited when this provision
was incorporated in the Illinois con
stitution; and when we come to the
legislative article I hope this oath
will be required of every legislator.
If required of every legislator, why
not require it of every other officer?
Why sir, when it is said in this day
that legislators are susceptible of
corruption, why not take this precau
tion? I have heard it said that an
ounce of preventative is worth more
than a pound of cure, that a warning
to flee from danger is worth all you
can do after the injuries fasten them
selves on the body politic. It is not
that I desire to be at all captious in
this matter, but it is that I believe
that the proposed oath would accom
plish much good. Yes sir, it is
the terrors of the law that do more
to protect society than its punish-

476

OATH OF OFFICE

Tuesday]

STRICKLAND-ESTABROOK

[July 18

ment. If it was only a vindictatory
penalty that enforced its mission,
great indeed would be the number of
its violators, but most men see and
have learned to see in America, (and
that is why it is said we have the
"best government in the world,) be
cause the people inquire what is the
law, and by the law abide. And if
this provission passes, men running
for office will see it written in the
constitution and will stop short of a
resort to means that they have here
tofore used to accomplish these ends.
It seems to me that we ought to
adopt one or the other of these pro
visions. For my own part I like the
language and the provision report
ed by the committee best, and had
I not been absent and my attention
diverted to some other matter, I
should have presented these views
much sooner. I trust gentlemen you
will reflect and simply see that the
person is required only to swear he
has not bribed an elector and not
used his position corruptly. What is
there here that we should not incor
porate in the fundamental law of
the state? It seems to me we ought
in justice to ourselves, to incorporate
this amendment, and I hope it may
prevail, or if not the amendment it
self, then the original words in
some modified form.
Mr. STRICKLAND. I am in fa
vor of the amendment of the gentle
man from Otoe (Mr. Newsom) be
cause it is better worded. I think
any gentleman could take that oath.
What would 'a man be worth that
would not take it?
Mr. ESTABROOK. If an indivi

dual sufficiently corrupt to use brib
ery to commit breaches of the crimi
nal code as a means by which he
could acquire the tenure of his office,
do you think for a moment he would
hesitate to take that oath? Now as
a point laid down in the law books,
it is deemed impolitic and wrong in
practice to multiply oaths where
there is no necessity for it. And I
would respond to the interrogatory of
my friend on my left (Mr. Mander
son), and the gentleman from Otoe
— what harm it would do. I reply
that it does very much harm;" and
that to require an individual to take
an oath where there is no need, a
mere matter of form, it is wrong.
Why, sir, are bribery and the little
matters brought under the provision
of this oath, the only corrupt meth
ods by which a party gains office?
No, sir. I mean to say the most cor
rupt method is that which is the
subornation of the multitude of whis
key sellers that are brought into use.
Now I ask my friend from Otoe, have
you grown so degenerate as to have
an individual stand up and swear he
has not broken the ten command
ments? Well, advocate the measure
which shall let a person come in un
der a suspicion simply.
Mr. MASON. Suppose that latter
clause were added, would I simply
vote for you for attorney general?
Mr. ESTABROOK. It would an
swer very well for a guide board in
the road to morality. But I fear he
would not stop to enquire into the
means used for his election. Nor do
I think to say that he would^hesitate
to take the oath. He would find
some place in his conscience to hide

OATH OF OFFICE

477

Tuesday]

TOWLE— WOOLWORTH

[July 18

behind, some mental reservation, to
enable him to take the oath. Here
is my objection, that it multiplies
needlessly the oaths to be taken, and
the official oath is nothing at all. If
you want a public sentiment that
shall -regard the oath as a small
affair, make provision that it shall
only he administered in the mere
transactions of life. Not to multi
ply it at every corner; but have it
only in such cases where it is abso
lutely necessary and the importance
and magnitude of the occasion shall
demand it. But if it must pass, let
us, for God's sake, have the entire
criminal code embraced.
Mr. TOWLE. Will the gentleman
inform us what the ten command
ments are?
Mr. WOOLWORTH. The oath in
the Illinois constitution met my ap
proval in the committee. I did not
at that time say anything in the de
fense of the oath as reported; nor
would I give anything for the oath
as now proposed. I would not give
anything for it at all, unless the com
mittee and the convention will give
back and restore the five lines follow
ing. That is to say, I do not think
the oath will have any particular val
ue unless it shall be recorded in the
proper office of the state, where it
can be examined by all men, and the
person who takes it falsely and cor
ruptly shall be chargeable with the
consequence of the commission of
the crime of perjury. If we can go
back and restore the oath reported
by the committee, modified, perhaps
wisely and very appropriately as now
proposed, and it has attached to it

the consequences that are prescribed
in the five following lines, then I am
think, we will do just right. As far
as this appendix goes, something:
about the ten commandments. I sup
pose the gentleman meant that for a
joke. I do not suppose he ever meant
it as a serious matter. It is too ab
surd to be worthy of talk. Let us see
what is the argument he puts to-
us against attaching to the usual
oath of office, the words proposed
by the gentleman from Otoe. He
says it is because he does not want to
have oaths taken upon every trivial
occasion. Now that argument proves-
too much. If that is sound strike
the Whole oath out, if it be a frivol
ous occasion when the chief execu
tive of this state stands up before the
representatives of the people in the
legislature and before the people of
the state, and takes an oath faithful
ly to discharge the duties of his of
fice, and swears also that he has not
obtained this position by corrupt
measures, and that he will not use
the power entrusted to him, corrupt
ly; if that is a trivial occasion then,
tell me what a grave and solemn oc
casion is. If the day that comes
around every two years, when the
representatives are assembled in this
building, and the officers are to take
their oath of office is a trivial oc
casion, then dispense with all the
usual oaths of office as well as the-
words intended to be added. If that
is a trivial occasion,, why then let
these men come up and take posses
sion of their offices without ceremony,
without oath of anybody to mark the
event and the occasion. No, gentle
men we all know that it is not a.

478

OATH OF OFFICE

Tuesday]

GRIGGS— SPRAGUE

[July 18

trivial thing. We all know that the
oath is a solemn oath resting upon
and binding upon the conscience;
and that the man who takes it, and
knowingly perverts and violates it
is morally guilty of perjury — I was
going to say guilty of treason. And
well I may say guilty of high treas
on. Now, strike the whole thing
out, or accept the proposition that
it is not a trivial thing. Then, when
he does swear he has not got his po
sition by corrupt measures, and that
he will not pervert the power en
trusted to him, let the oath be re
garded. And if he shall violate that
oath hereafter let him be excluded
longer from the seat he is not wor
thy to occupy. Then something
worthy of the occasion, then some
thing worthy of the man will occur.
I, am in favor of the amendment.
It relieves the oath as separated by
the committee from some trivial ob
jections made to it. It restores the
substance of it. Then I hope the
committee will restore the other
sentences. Mr. GRIGGS. Mr. Chairman. I
am opposed to the amendment. I
don't expect to make a speech upon
this question, but simply state my
views, believing that the oath, as
found in the Illinois constitution is
sufficient. I believe if a man stand
up and hold up his hand and sol
emnly swear to discharge the duties
of his office to the best of his abili
ty, I believe that is all he could
do if he takes all the "iron clad"
oaths, any gentleman in this con
vention could make. I don't believe
that honest men will be any the more
honest after the taking of such an

oath, nor will a dishonest man be
made honest by it. I believe if he is
corrupt enough to bribe, he will
find some way to escape the penalties
of the oath you propose. I don't
believe that the addition to the
amendment as proposed by the gen
tleman from Otoe (Mr. Mason) will
secure honest officers. I am opposed
to this amendment because I don't
believe that will accomplish any
good. Mr. SPRAGUE. Mr. Chairman. If
we were to make a choice between
these two alone, then I don't know
that I can make much of a choice,
but if we re-consider what we have
stricken out. so that the section
might be different, then I would be
in favor of the amendment. If the
amendment is adopted, and we rein
state what we have stricken out, then
I can see that a man violating the
oath, would forfeit his office and be
disqualified from holding office in
this state for all time to come.
Hence I hope that the amendment
will prevail, and that the portion
we have stricken out will be rein
stated. Mr. ESTABROOK. Mr. Chairman.
I am afraid, sir, that if the amend
ment should prevail , we would
have no officers. I ask leave to
withdraw my motion.
The CHAIRMAN. The question
now is upon the original amendment.
Mr. THOMAS. Mr. Chairman. I
desire to say only a few words. A
short time ago, I voted against the
section as originally reported. I am
in favor of the section the gentle
man from Otoe has proposed, because
I believe it fills the bill. As now quali-

OATH OF OFFICE

479

Tuesday]

THOMAS-LAKE— WOOLWORTH

[July IK

fled by the gentleman from Otoe, the
oath is also proper for the officers
of the state. I don't see any impro
priety of having the executive take
an oath that he will not bribe voters,
If it is good that the members of the
legislature should take this oath,
why should not the executive officers
of the state take it also. I agree
with the chairman of^the committee,
that if this oath is reconsidered it
would be useless to have the execu
tive take this oath unless there is a
penalty attached.
Mr. PHILPOTT. Mr. Chairman. I
vote for the amendment which has
been adopted by this convention. I
think that the oath offered by the
gentleman from Otoe (Mr. Mason) is
a good one. It is an oath that any
one can take. I think that the origi
nal was bad in form.
Mr. GRIGGS. I call for a divi
sion of the question.
The CHAIRMAN. The question is
upon the amendment.
The amendment was agreed to.
Mr. LAKE. Mr. Chairman. I
move to amend by inserting after the
word "officers" in the first line, the
words "provided for in this consti
tution." My object Mr. Chairman, is
that this very long and peculiar oath
shall not be required to be taken by
inferior officers but the legislature
may in all cases of inferior officers
prescribe what oath shall be taken.
It would obviate any question to pro
vide that all officers created by the
constitution shall take the oath pre
scribed in the constitution. It seems
to me that it so provides, but it
would seem that the legislature must
first pass an act relative to it. And

my amendment would go further and
strike out the words in the first and
second lines, "and such inferior of
ficers as may be by law exempted."
Mr. WOOLWORTH. Mr. Chair
man I don't like the amendment of
my colleague from Douglas (Mr.
Lake.) In the first place no civil of
ficer of the state would be obliged to
take this oath. Now, as was said
when we were considering another
part of this article there may be of
ficers of the state created by the leg
islature, then these officers would
not be required to take this oath,
while it may be just as important
as that the officers named in this ar
ticle should take it. So I think it is
better to leave it as it is. Again, I
would have to apply to the officers
of the county just as well as to
the officers of the state, and as the
section stands it will not be very
hard for the legislature to pass a
law covering all they may wish to ex
empt, but if I was in the legislature
and a bill was brought up to exempt
county officers, I would not vote for it
at all. It is for these officers as well
as officers of the state, that their oath
should be prescribed. I don't know
but what they are more likely to pro
cure their election by corrupt meas
ures than officers of the state. I must
say that I like the section as it stands.
Mr. LAKE. Mr. Chairman. I am
in favor of the amendment for sever
al reasons other than those which
I have mentioned. In the first place
I don't believe that county officers
should be compelled to hunt up a
judge of the supreme or district court
when he has to take an oath of office,
and have to file that oath in the of-

480

OATH OF OFFICE

Tuesday]

LAKE— PHILPOTT— ROBINSON

[Julyl8.

fice of the secretary of state; it is
requiring too much of these officers;
and that is just what is required by
this section as it now stands with the
amendments that have been made
to it.
My colleague (Mr. Woolworth)
says the legislature may create other
state officers not named in this arti
cle. Well, when they are created it
will be time enough to provide what
oath they shall take. Why, unless
the legislature should exempt the
constable in a remote precinct he
would be compelled to hunt up a
judge of one of these courts before
he could take this oath and then
he would have to have that oath
filed with the secretary of state here
at the capitol.
I would leave it to the legislature
in the first instance, to provide what
shall be done in respect to them,
what oath shall be employed, which
shall secure the people of the state,
counties and precincts faithful of
ficers. I do not think in an article ot
this kind which relates to the exe
cutive of the state, that we ought to
travel outside of that so far as to
enter into the minutes of the others
which shall be administered to road
supervisors, constables, and justices
of the peace of the various precincts
in our state, that should be left to the
legislature. I must insist upon my
amendment. Mr. PHILPOTT. Mr. Chairman. I
offer the following substitute to the
amendment proposed by the gentle
man from Douglas (Mr. Lake):
"This oath shall be administered by
a judge of the supreme or District
court to each of the state officers,

and the secretary of state shall file
and record the oath so taken and
subscribed by such officers, provid
ed that all other officers take the
oath of office prescribed before some
one authorized to administer oaths
in the county where he resides."
Mr. BOYD. Mr. Chairman. I
move the committee rise, report pro
gress and ask leave to sit again.
Mr. ROBINSON. Will the gentle
man withdraw his motion a moment.
Mr. BOYD. I will withdraw it.
Mr. ROBINSON. Mr. Chairman. I
think when the legislature passes a
law creating an office such as con
stable they may provide he shall
subscribe the oath provided for here,
I think a matter of that kind should
be left to future legislatures. I move
to strike out the following:
"This oath shall be administered
by a judge of the supreme or district
court, and the secretary of state shall
file and record the oath subscribed
to by each officer."
Mr. MASON. Mr. Chairman. I
second the motion to strike out. This
would leave the whole matter for the
legislature to say before whom the
oath shall be taken, with whom the
bonds shall be filed, and require
every city officer to take this oath
"that he will support the constitu
tion of the United States and the con
stitution of the state of Nebraska,
and that he has not contributed any
thing or done anything to -influence
the electors." I think that obviates
all the difficulty suggested by the
gentleman from Douglas (Mr. Lake)

OFFICIAL BONDS

481

Wednesday J

WEAVER— PHILPOTT

[July 19

and leaves the whole section harmo
nious. Mr. PHILPOTT. Mr. Chairman. I
withdraw my amendment.
The motion of Mr. Robinson was
agreed to.
Mr. WEAVER. I move the adop
tion of the section as amended.
The motion was agreed to.
The chairman read section twenty-
six as follows:
26. The officers mentioned in this
article shall give bonds in double the
amount of money which may come
into their hands, with such provis
ions as to sureties, and the approval
thereof, and for the increase of the
penalty of such bonds as may be pre
scribed by law.
Mi. PHILPOTT. Mr. Chairman. I
move the adoption of the section.
The motion was agreed to.
Mr. BOYD. Mr. Chairman. I re
new my motion that the committee
rise, report progress and ask leave
to sit again.
The motion was agreed to.
Mr. MYERS. Mr. President. The
committee of the whole have had
under consideration the article en
titled "Executive," and have in
structed their chairman to report the
same with sundry amendments. I
make a motion that the report be ac
cepted and the committee discharg
ed from further consideration of the
subject. The motion was agreed to.
Adjournment.
Mr. WILSON. I move the conven
tion adjourn until nine tomorrow
morning. The motion was agreed to, so the
31

convention (at six o'clock and ten
minutes) adjourned.

TWENTY-THIRD DAY.
(The manuscript package which
contains the debates of the 23rd day's
proceedings of the convention of 1871
cannot be found. Just when and how
it disappeared from the filing cas
es which contained the debates is a
mystery. In default of the com
plete reports of the debates for that
day the editor inserts the newspaper
report of two of .the leading news
papers of that time, — The Omaha
Tribune and Republican and the
Omaha Herald. The flies of the Lin
coln State Journal and Omaha Bee
for this period are missing.)
Omaha Tribune and Republican Re
port.
Wednesday, July 19, 1871.
Convention met at 9 o'clock a. m.
Prayer by Chaplain.
Minutes of the proceedings read
and approved.
On motion the convention went in
to Committee of the Whole on report
of Committee on Bill of Rights. Mr.
Griggs in the chair.
The substitute of Mr. Manderson
to section 13 was considered, which
reads as follows:
"Private property shall be held in
violate, but subservient to the public
welfare; when taken or damaged in
time of war or other public exigency,
imperatively requiring its immediate
seizure, or for the purpose of making
or repairing roads, which shall be
open to the public without charge a
compensation shall be made to the
owners in money, and in all other
cases compensation shall be first

482

EMINENT DOMAIN— AMENDMENTS

Wednesday]

WAKELEY— LAKE

[July 19

made in money, or first secured
by a deposit of money. Such compen
sation for property taken shall in
every case be assessed by a jury in
such manner as shall be prescribed by
law. The fee of land taken for rail
road trccks without consent of the
owners thereof, shall remain in such
owners subject to the use for which
it was taken."
Mr. Thomas moved that the word
"general" be inserted before the
word "benefits", which was lost by
a vote of 15 to 28.
Mr. WAKELEY moved to amend
the substitute, by inserting the word
"other" before the word "property,"
which was lost.
The substitute was adopted.
On motion the committee rose, re
ported the article "Bill of Rights,"
to the convention, with amendments
and recommended its adoption • as
amended. The report was received and com
mittee discharged from further con
sideration of the subject matter —
which was adopted.
On motion of Mr. Ballard the con
vention went into Committee of the
Whole on future amendments.
Pending discussion upon this sub
ject, the committee rose, reported
progress and asked leave to sit again
at 2 o'clock p. m.
After Recess.
Convention went into Committee of
the Whole on future amendments,
Mr. Reynolds in the chair.
The motion pending was upon the
substitute of Mr. Lake, of section 2
of the article of the Illinois constitu
tion upon the subject.
A point of order having been made

a vote of order was taken upon the
motion to strike out the latter clause
of the section which was adopted.
Mr. Lake withdrew his substitute,
and offered the following:
Propositions for the amendment of
th s constitution may be made by
either house of the legislature, if
two-thirds of all the members elected
to each house shall concur therein;
such proposed amendments, together
with the yeas and nays, shall be. en
tered on the journal, and the Secre
tary of State shall cause same to be
published in at least one newspaper
in er.ch county of the state where a
newspaper is published, for three
months preceding the next election
for representatives at which time the
same shall be submitted to the elec
tors for their approval or rejection,
and if a majority of the electors vot-
ng on said amendment at such elec
tion shall adopt the amendments, the
same shall become a part of the con
stitution. Where more than one
amendment shall be submitted at
the same time, they shall be so sub
mitted as to enable the electors to
vote on each amendment separately,
and not more than three propositions
to amend shall be submitted at the
same election.
The substitute was lost.
Mr. Robinson moved to amend the
section by inserting the word "for"
before the words "three months," and
the words "immediately preceding" ,
before the word "months" and the
words "the next general election."
Mr. Lake moved to insert the
word "weekly" before the word "for"
which amendment was accepted by
Mr. Robinson.
The section as amended was adopt
ed. The second section was taken up
which read as follows:
Sec. 2. Upon the expiration of

AMENDMENTS— SUFFRAGE

483

Wednesday!

1BALLARD— MASON— BOYD

[July 19

twenty-five years from the adoption
of this constitution, or any years
thereafter, the legislature may pro
vide by law for the submission of
this question: "Shall there be a con
vention to revise or amend the consti
tution?' and should a majority of
the legally qualified electors voting
thereon decide in favor of calling a
convention for such purpose, then
the legislature at its next meeting
shall provide by law for the election,
qualification and pay of delegates to
such convention."
Mr. Ballard moved to strike out
the section which was lost.
Mr. Mason moved that all before
the words "the legislature may pro
vide," etc., be stricken out, and in
sert the words "at a general elec
tion," after the word "question."
Mr. Towle offered a substitute for
the section which was lost.
Mr. Boyd moved to strike out the
whole section and adopt a substitute,
as follows:
"Whenever two-thirds of the mem
bers elected to each house of the leg
islature shall by a vote entered on the
journal thereof, concur that a con
vention is necessary to revise, alter or
amend the constitution, the question
shall be submitted to the electors at
the next general election. If a mo-
jority voting thereon at the election
vote for a convention, the legislature
shall at the next session provide
for a convention, and shall, in
the Act calling the convention,
designate the day, hour, and
place of its meetings, and fix the
pay of its members and officers, and
provide for the payment of the same,
together with the expenses necessari
ly incurred by the performance of
its duties. The law submitting the
question shall be published for the
time and in the manner provided in
the preceding section, as to the pro
posed amendment."
The substitute was adopted.

The committee rose, reported the
article back, and recommended its
adoption. The convention went into Commit
tee of the Whole on "Rights of Suf
frage." Sec. 1 which read as follows:
"Every male person of the age of
twenty-one or upwards, belonging to
either of the following classes who
shall have resided in the State, coun
ty, precinct, and ward for the time
provided by law shall be an elector:
First. Citizens of the United
States. Second. Persons of foreign birth
who shall have declared their inten
tion of becoming oitizens conforma
bly to the laws of the United States on
the subject of naturalization.
Mr. Philpott moved to strike out
the word "male" which was lost.
The section was adopted.
Section two was taken up which
reads as follows:
"The legislature may extend by
law, the right of suffrage to persons
not herein enumerated, but no such
law shall be in force until the same
shall have been submitted to a vote
of the people at a general election
and approved by a majority of all
votes cast on that question at such
election." Mr. Robinson moved to strike out
the section.
Pending the question, on motion
the committee rose, reported progress
and ask leave to sit again.
Adjourned till 9 o'clock tomorrow.

Omaha Herald Report.
Wednesday, July 19, 1871.
Convention met at 9 o'clock a. m.
Prayer by the Chaplain.
Minutes of the proceedings read

484

BILL OF RIGHTS

Wednesday 1

MA NDERS ON— B ALL ARD

[July 19

and approved.
On motion the convention went in
to Committee of the Whole on re
port of committee on Bill of Rights,
Mr. Griggs in the chair.
The substitute of Mr. Manderson to
section 13 was considered, which
reads as follows:
"Private property shall ever be in
violate, but subservient to the public
welfare, when taken or damaged in
time of war or other public exigency
imperatively requiring its immediate
seizure, or for the purpose of making
or repairing roads, which shall be
open to the public without charge, a
compensation shall be made to the
owners in money, and in all other
cases a compensation shall be first
made in money or first secured by a
deposit of money; such compensation
for property taken shall in every
case be assessed by a jury in such
manner as shall be prescribed by law.
The fee of land taken for railroad
tracks without the consent of the
owners thereof, shall remain in such
owners subject to the use for which
it was taken."
Mr. Thomas moved the word
"general" be inserted before the word
"benefits," which was lost by a vote
of 15 to 28.
Mr. Wakeley moved to amend the
substitute, by inserting the word
"other" before the word "property,"
which was lost.
The substitute was adopted.
On motion, the committee rose,
reported the article "Bill of Rights"
to the convention, for amendments,
and recommended its adoption as
amended. Report received and com
mittee discharged from further con
sideration of the subject matter,
which was adopted.
On motion cf Mr. Ballard the con
vention went into the committee of

the whole on future amendments.
Sec. 1st, which reads as follows:
"Any amendment or amendments
to this constitution may be proposed
in the senate or house of representa
tives, and if the same shall be agread
to by a majority of the members:
elected to each house, such proposed
amendment or amendments shall bo
entered upon their journals, with the
yeas and nays taken thereon, and the
Secretary of State shall cause the
same to be published three months
before the next election in at least
one newspaper in every county in
which a newspaper shall bo published
and if in the legislature next after
wards chosen such proposed amend
ment or amendments shall be agreed
to by a majority of the members
elected to each house, the Secretary
of State shall cause the same to be
published in the manner aforesaid,
and such proposed amendment or
amendments shall be submitted to
the people in such manner and 'in
such time (at least three months af
ter being agreed to by both
houses) ?.s the legislature shall pre
scribe: and if the people shall ap
prove and ratify such amendment
or amendments by a majority of the
qualified voters of this state, voting
thereon, such amendment or amend
ments shall become a part of the con
stitution; but no amendment or
amendments shall be submitted to the-
people oftener than once in five
years; provided, that if more than
one amendment be submitted they
shall be submitted in such manner
and form that the people may vote-
for or against each amendment sep
arately and distinctly.
Mr. Moore moved to strike out
"five years" and insert "three years. '*
Mr. Kirkpatrick offered an amend
ment to the amendment, striking out
all after the words "shall become a
part of the constitution," which wa*
accepted by Mr. Moore.

AMENDMENTS

485

Wednesday!

ESTABROOK-LAKE

[July 16

Mr. Sprague offered a substitute to
the amendment, striking out the
words "but no amendment or amend
ments shall be submitted to the peo
ple oftener than once in live years."
Mr. Estabrook offered a substi
tute for the section, "The legislature
(two-thirds of both houses concur
ring) may at any time propose amend
ments to this constitution, which
shall be valid to all intents and pur
poses as part of this constitution,
when ratified by a majority of two-
thirds of all the votes cast on that
subject at a general election."
Mr. Towle moved to amend the
substitute by striking out the words
"two-thirds" where they last occur.
Mr. Lake offered as a substitute for
the section, the article of the Illinois
constitution upon the subject of
amendments, which was accepted by
Mr. Estabrook, who withdrew his
substitute. Pending discussion on this question
the committee rose, reported progress
and asked leave to sit again.
Adjourned till 2 o'clock p. m.
After Recess.
Convention went into Committee of
the Whole on Future Amendments,
Mr. Reynolds in the chair.
The motion pending was on the
substitute of Mr. Lake, on section 2
of the article of the Illinois constitu
tion upon the subject.
A point of order having been made,
a vote was taken upon the motion to
strike out the latter clause of the sec
tion, which was adopted.
Mr. Lake withdrew his motion and
offered the following:

"Propositions for the amendment
of this constitution may be made by
either house of the legislature if two-
thirds of all the members elected to
each house shall concur therein; such
proposed amendments together with
the yeas and nays, shall be entered
on the journal and the Secretary of
State shall cause the same to be pub
lished in at least one newspaper in
each county of the state in which a
newspaper is published for three
months preceding the next election
for representatives, at which time
the same shall be submitted to the
electors for their approval or rejec
tion, and if a majority of the elec
tors voting on said amendments at
such election shall adopt the amend
ments, the same shall become a part
of the constitution. Where more
than one amendment shall be submit
ted at the same time, they shall be so
submitted as to enable the electors
to vote on each amendment separate
ly, and not more than three proposi
tions to amend shall be submitted at
the same election.
The substitute was lost.
Mr. Robinson moved to amend the
section by inserting the word "for"
before the words "three months,"
and the words "immediately preced
ing" between the word "months" and
the words "the next general elec
tion." Mr. Lake moved to insert the word
"weekly" before the word "for,"
which amendment was accepted by
Mr. Robinson.
The section as amended was
adopted. The second section was taken up
which read as follows:
Sec. 2. Upon the expiration of
twenty-five years from the adoption
of this constitution, or any years
thereafter, the legislature may pro
vide by law for the submission of
this question: 'Shall there be a con-

486

AMENDMENTS— SUFFRAGE

Thursday]

MASON— BOYD-PHILPOTT

[July 20

vention to revise or amend the consti
tution?' and should a majority of
the legally qualified electors voting
thereon decide in favor of calling a
convention for such purpose, then
the legislature at its next meeting
shall provide by law for the election,
qualification and pay of delegates to
such convention.
Mr. Ballard moved to strike out
the section which was lost.
Mr. Mason moved that all before
the words "the legislature may pro
vide," etc., be stricken out, and in
sert the words "at a general elec
tion," after the word "question."
Mr. Towle offered a substitute for
the section which was lost.
Mr. Boyd moved to strike out the
whole section and adopt a substitute,
as follows:
"Whenever two-thirds of the mem
bers elected to each house of the leg
islature shall hy a vote entered on the
journal thereof, concur that a con
vention is necessary to revise, alter or
amend the constitution, the question
shall be submitted to the electors at
the next general election. If a ma
jority voting thereon at the election
vote for a convention and shall in the
Act calling for a convention designate
the day, hour, and place of its
meeting, and fix the pay of its
members and officers, and provide
for the payment of the same, to
gether with the expenses necessari
ly incurred by the performance of
its duties. The law submitting the
question shall be published for the
time and in the manner provided in
the preceding; section, as to the pro
posed amendment."
The substitute was adopted.
The committee rose, reported the
article back, and recommended its
adoption. The convention went into Commit
tee of the Whole on "Rights of Suf
frage."

Sec. 1 which read as follows:
"Every male person of the age of
twenty-one or upwards, belonging to
either of the following classes who|
shall have resided in the State, coun
ty, precinct, and ward for the time
provided by law shall be an elector:
First. Citizens of the United
States. Second. Persons of foreign birth
who shall have declared their inten
tion of becoming citizens conforma
bly to the laws of the United States on
the subject of naturalization.
Mr. Philpott moved to strike out
the word "male" which was lost.
The section was adopted.
Section two was taken up which
reads as follows:
"The legislature may extend by
law, the right of suffrage to persons
not herein enumerated, but no such
law shall be in force until the same
shall have been submitted to a vote
of the people at a general election
and approved by a majority of all
votes cast on that question at such
election." Mr. Robinson moved to strike out
the section.
Pending the question, on motion
the committee rose, reported progress
and ask leave to sit again.
Adjourned till 9 o'clock tomorrow.

TWENTY-FOURTH DAY.
Thursday, July 20, 1871.
The convention met at nine o'clock
and was called to order by the presi
dent. Prayer.
Prayer was offered by the chap
lain as follows:
Almighty God, our Heavenly Fa
ther, Maker of Heaven and of Earth,
remember us this day. Keep us from
vanity. Show Thy preserving care

IRISH PATRIOTS— RAILROAD INVESTIGATION 487

Thursday]

MYERS— VIFQUAIN- CAMPBELL

[July 20

unto this generation. Hide not Thy
face from us, but reveal Thyself unto
us in great mercy and in great love,
we pray now and forever, through
Jesus Christ our Lord. Amen.
Reading of Journal.
The Journal of the preceding day
was read and approved.
Leave of Absence.
Mr. WILSON. Mr. President. Mr.
Parker has been called home and de
sires me to ask leave of absence for
him for five days.
Leave granted. NEM. COM.
Special Orders.
Mr. MYERS. Mr. President. I
present an order.
The secretary read the order as
follows: Ordered that the Bill of Rights and
thp hill entitled "TTntnrp Amend
ments" shall be the special orders for
2 o'clock every day until they are
disposed of
Mr. MYERS. Mr. President. I
move its adoption.
Motion agreed to.
Reports of Standing Committees.
Mr. THOMAS. Mr. President.
Your committee on municipal corpo
rations desires to submit a report
Mr. MANDERSON. Mr. President.
I move that the reading of the report
be dispensed with; that it be read
twice by its title, ordered print
ed, and referred to the committee of
the whole House.
Motion agreed to.
The PRESIDENT. One hundred
and fifty copies of the report will be
printed and it will be referred to the
committee of the whole House.
Mr. NELIGH. Mr. President

Your committee number eleven is
ready to report.
Mr. BOYD. Mr. President. I move
that the reading of the report be
dispensed with, the report read twice
by its title, 150 copies be printed,
and the report referred to the com
mittee of the whole.
Motion was agreed to, and the bill
read twice by title and ordered print
ed. Resolutions.
Mr. VIFQUAIN. Mr. President. I
desire to offer a resolution.
The secretary read as follows:
Resolved, That this convention
takes pleasure in granting the privi
leges of the floor to the Irish Patri
ots, Thomas Francis Burke and Clark
Luby. Mr. VIFQUAIN. Mr. President. I
move the adoption of the resolution.
The motion was agreed to.
Mr. CAMPBELL. Mr. President. I
desire to offer a resolution.
The secretary read as follows:
Whereas, The last legislature ap
pointed a committee to investigate the
frauds on railroads to which was
paid $710.60, and another committee
called "The Joint Investigating Com
mittee," to which was paid $796.00;
Therefore Resolved: That a pro
vision be incorporated in the consti
tution now being prepared, providing
that all accounts of whatever nature,
presented to the legislature shall be
itemized before said accounts shall be
allowed. Mr. CAMPBELL. Mr. President.
These railroad and investigating
committees were appointed last win
ter, with the Hon. James Doom as
chairman of the railroad —
Mr. CASSELL. Mr. President. I

488

RAILROAD INVESTIGATION

Thursday]

CAMPBELL— CASSELL-MASON

[July 20

rise to a point of order. Is there a
question before the House?
The PRESIDENT. The gentleman
from Otoe (Mr. Campbell) has the
flooy, and is speaking by leave. Does
the gentleman from Lancaster (Mr.
Cassell) object.
(Leave! Leave!)
Mr. CAMPBELL. The gentleman
from Lancaster (Mr. Cassell) has
always been allowed to speak when
ever he wishes. He is one of those
long haired men whom we have to
treat tenderly —
Mr. CASSELL. Mr. Chairman. I
rise to explain. I have had my hair
cut lately, and I am not now " a long
haired man." (Laughter)
Mr. CAMPBELL. Mr. Chairman,
As I said before, these gentlemen of
the railroad committee, with James
Doom as chairman, went down the
Omaha & Southwestern R. R., the
Omaha & Northwestern R. R., and
the Midland & Pacific road. They
were gone a few days and came back
here and presented a bill for $710.
Now what good has this done the
state. I think we should protect
ourselves against these swindles in
the future.
Mr. McCANN. Mr. President. I
think the wording of the proposition
should be corrected. It reads
"frauds on Railroads." I think it
should read "frauds of railroads."
Mr. MYERS. Mr. President. The
is an itemized account of the railroad
bill for $710.60, in the secretary's of
fice which the gentleman can see.
Mr. MASON. Mr. President. I
hope all before the word "resolved"
will be stricken out. I move to strike

out all of the resolutions preceding
the word "resolved." I desire it to
read: "Resolved, that the commit
tee take into consideration the pro
priety of requiring all bills against
the state to be itemized." I deem
that resolution a very wise one, but
I regret that my colleague should
think it necessary to reflect against
any committee or legislative action.
The PRESIDENT. The motion is
to strike out all preceding the word
"resolved" in the resolution.
The motion was agreed to.
Mr. THOMAS. Mr. President. I
suppose the mover of this resolution
supposed these two bills were not
itemized. I know that the Investi
gating committee bill is itemized.
Mr. MYERS. I know of my own
knowledge, that the R. R. bill is item*
ized. The gentleman can see it in
the secretary's office.
The motion to strike out was
agreed to.
MR. MASON. I move to refer the
resolution to the Committee on Fi
nance. The motion was agreed to.
MR. WOOLWORTH. Mr. Presi
dent. I move that the report of the
Committee on the rights of Suffrage
be made the special order for Mon
day evening at seven o'clock, and
that we devote to the discussion on
female suffrage the evenings of next
week. MR. STEVENSON. Mr. President,
I move to amend so as to fix the first
discussion on Tuesday evening,
Mr. MAXWELL. Mr. President.
It is very desirable to get through as
soon as we can and I move that the

ORDER OF BUSINESS

489

Thursday]

ESTABROOK— ROBINSON— McCANN

[July 20

second section be recommitted.
Mr. ESTABROOK. Mr. President.
I am in hopes the whole subject may
be recommitted, so that a proposi
tion on female suffrage may be sub
mitted to bring the question before
the people.
The PRESIDENT. The question
is on recommitting the second sec
tion. Mr. ROBINSON. I would like to
amend by instructing the committer
to report a separate section on fe
male suffrage.
Mr. WOOLWORTH. Mr. Presi
dent. I hope the motion to strike
out will be withdrawn in order to
allow this matter to be recommitted.
Mr. ROBINSON. I will withdraw
it. Mr. WOOLWORTH. I will with
draw my motion for special order.
Mr. MYERS. Mr. President. I
move we now go into the committee
of the whole on the Legislative Arti
cle. Mr. WAKELEY. The considera
tion of the article on Suffrage was
not completed as the second section
only is recommitted. I think we
should finish the remaining sections
-of the article.
Mr. MOORE. If it be in order I
would amend the motion of Mr. My
ers by substituting the remainder of
the Article on Suffrage.
Mr. MYERS. I accept the substi
tute. Mr. ESTABROOK. I move that
the whole article be recommitted.
The Convention divided and the
motion was agreed to.

Mr. MYERS. Mr. President. I re
new my motion that the Convention
do now resolve itself into the Com
mittee of the Whole on the Legisla
tive Article.
Mr. ROBINSON. Mr. President.
For my part, I am not prepared on
that article and I will move to amend
to substitute report of Judiciary
Committee. The Convention divided and the
amendment was not agreed to.
Mr. ROBINSON. Mr. President. I
move to amend by substituting report
of Committee on State, County, and
Municipal Indebtedness.
Mr. ESTABROOK. Mr. President.
I move to amend by inserting report
of Committee No. 7 (State Institu
tions and Public Buildings).
Mr. HASCALL. Mr. President. I
hope the Article on Legislative may
be taken up and considered so that
the Committee on Apportionment
may commence its work.
Mr. McCANN. Mr. President.
There is another reason why the
Article on Legislative should be
taken up and considered and that is
that the Committee on Revenue and
Finance would have inserted in their
report a section relative to the appro
priation of public moneys had they
not supposed that matter would have
been considered by the Legislative
Committee. It is necessary therefore
to consider this article in order that
we may know what will be in it and
that the two may not conflict.
Mr. WOOLWORTH. Mr. Presi
dent. I wish to say as to the Execu
tive Article that it should not be gone
through with in the convention until

490

BOARD OF PUBLIC BUILDINGS

Thursday]

WOOL WORTH -ROBINSON

[July 20

this report of the Legislative Com
mittee and of other Committees be
acted upon in the Committee of the
Whole. It will be a very serious
question before we get through
whether we will create new officers
or not. I hope therefore that we
will take up these articles one by one
and dispose of them in the Com
mittee of the Whole.
Mr. ROBINSON. Mr. President. I
will withdraw my motion in favor of
the motion of the gentleman from
Douglas (Mr. Estabrook) to go into
the Committee of the Whole on the
report of the Committee on State
Institutions and Public Buildings.
Mr. CASSELL. Mr. President.
The Committee on State Institutions
reported it. I would like to have it
come up at the present time.
The CHAIRMAN. The question is
on going into committee of the whole
to consider the report of the Com
mittee on State Institutions and Pub
lic Buildings.
The Convention divided and the
motion was agreed to.
Committee of the Whole.
The convention resolved itself into
committee of the whole, Mr. Myers
in the chair.
The secretary read the article as
follows: fll. That a board of commis
sioners, consisting of  , to be
called commissioners of state insti
tutions and public buildings, shall be
elected at the first general election
provided for in this constitution,
whose duty it shall be to have the
general supervision and control of
all state institutions and public build
ings. ?-nd the care and sale of all
lands appropriated for and belong

ing thereto.
fl2. Said board of commissioners
shall let all contracts for the erec
tion of new state buildings, additions,
repairs and supplies for the same to
the lowest bidder, after duly adver
tising the same, and shall perform
such other duties as the legislature
shall hereafter provide.
state institutions and public build-
3fl. The board of commissioners of
ings shall perform the duties of the
normal school board of education,
and shall be regents of the state uni
versity and agricultural college. The
governor as member ex-officio md
chairman shall complete said board
of regents.
fl4. The term of office of said com
missioners shall be for three years,
excepting the first, which shall be for
one, two or three years, and there
shall be elected one in each judicial
district of the state.
The electors in each district shall
vote for one commissioner to be a
member of said board, and for one
only. Before they enter upon the
discharge of the duties of their office,
they shall each take the oath of of
fice prescribed for the state officers,
and shall each execute a good
and sufficient bond to the state for
the faithful performance of the du
ties of the office, in double the sum
of monies that is liable to come into
their hands during their term of oL-
fice. fl5. Said board of commissioners
shall receive such compensation as
the legislature shall hereafter pro
vide. Article.
ffl. The state institutions and
public buildings shall be located and
built at the capital of the state.
S\2. The capital or seat of govern
ment of this state shall remain at
the city of Lincoln. All of which is
respectfully submitted.
The secretary read the additional

GOV. BUTLER'S MANSION

491

Thursday]

CASSELL— KIRKPATRICK

[July 20

report as follows:
Your committee on State Institu
tions and Public Buildings, to whom
was referred the resolution "To in
quire into the expediency and ex
pense of purchasing an executive
mansion," beg leave to submit the
following report:
We have conferred with Gov. But
ler, and ascertained the cost of his
property, which he will sell at cost.
Cost of mansion  $22,000
" Furniture  10 000
" " Barn and Outbuild
ings  3,000
" " Fence and Painting 2,000
" " Trees, Grapes, Shrub- >
bery, etc  1,000
" " Eight Acres grounds . 2,000
Total, 8 acres and improve
ments  $40,000
Total, 40 acres and improve
ments  50,000
Total, 120 acres and improve- -
ments  60,000
Will take what he owes the state
for part pay, and state warrants for
the balance. J. N. CASSELL, Chairman.
The CHAIRMAN. The secretary
will read the first section of the ar
ticle. The secretary read the first section
as follows:
1. That a board of commission
ers, consisting of  , to be called
commissioners of state institutions
and public buildings, shall be elected
at the first general election provided
for in this constitution whose duty
it shall be to have the general super
vision and control of all state insti
tutions and public buildings, and the
care and sale of all lands appropriat
ed for and belonging thereto.
Mr. BOYD. Mr. Chairman. I
move to strike out all after the word
building in fourth line.
Mr. CASSELL. Mr. Chairman. I

am not very particular about this
amendment. One of the Commission
ers referred to might be selected as a
Land Commissioner and save the
salary of a separate one to the
state. At the present time we have
three commissioners of the Peniten
tiary who are receiving pay; we
have also three appointed to superin
tend the building of the asylum, com
missioners for the Deaf and Dumh
Institute to be erected at Omaha,
also a Board of Regents for
the Normal School. I presume
they receive more or less pay.
We have also nine regents of
the University receiving pay. There
are over twenty individuals receiving
pay from the state, performing du
ties which the committee thought
three or four competent gentlemen
might perform just as well who
ought to be held responsible by the
state. The amount of pay received bv
the penitentiary commissioners al
ready amounts to something like $2,-
000 each. I think it will be econo
my on the part of the state to have
its business performed in a more suit
able manner.
Mr. CAMPBELL. It is not necessary
for all this Board of commissioners
to be under pay from the state every
day. They can receive pay only
when it is necessary to meet. I think
it would be necessary for one to re
ceive a yearly salary.
Mr. KIRKPATRICK. In answer I
would state that I believe the peni
tentiary is under contract and will
be completed before this con
stitution shall take effect; and also
that the three commissioners have
been appointed to secure another

492 BOARD OF PUBLIC LANDS AND BUILDINGS

Thursdayl

SPRAGUE— WOOLWORTH

[July 30

lunatic asylum and that will be very
probably completed. Now, with re
gard to the Board of Regents of the
University, I think they will, by no
means, be a building committee.
They are appointed to take charge of
the educational interests of the
;state. The CHAIRMAN. The argument
is going farther than the motion, and
gentlemen will confine themselves to
the question which is submitted.
Mr. STRICKLAND. Gentlemen, as
the Chairman has an interest in this
discussion, and desires to be heard
on the subject, I will, with the per
mission of the convention, ask Gene
ral Manderson to take the chair.
Mr. Manderson then took thp
chair. The CHAIRMAN. Gentlemen.
The matter before the house is the
motion of the gentleman from Doug
las, to strike out, in the fourth line,
all after the word "buildings."
Mr. SPRAGUE. Mr. Chairman. I
-am in favor of the amendment. The
management, care and sales of the
lands, is all that any one gentleman
¦can attend to. It is sufficient to oc
cupy his whole time and attention.
And the interest is of that import
ance, it strikes me, that demands
the attention of some gentleman well
qualified to fill that position; and, I
am opposed, as one individual mem
ber of this convention, to throw up
on- the individual who shall have con
trol and care of these lands, any oth
er duties whatever. It is unwise to
encumber him with the performance
¦of any other duties, which would be
the case as this section now stands.

Mr. WOOLWORTH. Mr. Chair
man. This is a very serious ques
tion. It ought not to be acted upon
by the committee hastily at all. There
is more covered by the amendment
of my colleague from Douglas than
the simple question whether we will
strike out these words, and will cre
ate," by another section of another ar
ticle, the office of land commissioner.
There is no broader and graver ques
tion lying right at the foundation of
this report. It is one which ought to
be treated as a general question, and
we ought not to confine ourselves in
the consideration of it, to mere de
tails. That question is — whether we
shall go on and multiply these state
officers, to a very great extent. Now,
it is proposed to have a board of
Commissioners, of State Institutions
and Public Buildings. I suppose to
consist of at least three, possibly
four or five. The fourth section re
quires one of these commissioners to
be elected from each judicial district
— possibly they may be four — pos
sibly they may be five. And in
addition to them there will be the
Governor. Then it is proposed to
have, at any rate, a land commis
sioner, and I do not know but it will
be proposed to have a recorder of
the land office. Then there are in
spectors of State Prison, and there
are other boards which, it is curious
ly thought by some gentlemen of this
convention, ought to be also made
members of this board. The gentle
man from Lancaster (Mr. Cassell).
went on to state to you that there
are twenty men under pay by this
state for taking charge of these two
institutions. Now, that is a great

BOARD OF PUBLIC LANDS AND BUILDINGS 493

Thursday]

WOOLWORTH

[July 20

mistake. That is a state of affairs
that in this constitution, we ought
certainly to provide against by a di
rect provision of the constitution in
that behalf. Now, I do not know
that I should strenuously oppose the
views suggested by the gentleman
from Lancaster, the chairman of this
committee.that there should be one
board, and one board only, which
should not be composed of officers of
the executive department, as men
tioned in the executive article; not
to one board composed of a limited
number of persons, that shall have
charge of all these interests, but I
am decidedly, I am firmly opposed
to the creation of this board, and
then of any other board whatever.
I do not know, I say, that I should be
so strenuously opposed to the pro
position of the gentleman from Lan
caster, as he stated it, to create one
board that shall have charge of all
of the interests of the state outside of
what would only be placed upon the
officers of the executive department;
but I shall certainly be opposed to
the creation of any other board
whatever. And, therefore, I am op
posed, if the section is to be adopted
at all, to the amendment of my col
league from Douglas.
Mr. GRAY. Let me ask whether
you would have this board also take
the place of the board of education?
Mr. WOOLWORTH. So far as
the educational interests of the state
are concerned I am not prepared to
answer the question. I am not pre
pared to say until I look more care
fully into the article on education,
whether it would not be necessary
to have a Board of Education, to

have charge of the educational inter
ests of the state separate from the
property of the state which is to be
used for the support of the schools.
I have had but little thought to be
able to state what my decision
would ultimately be. But I am in
favor of limiting this large number
of state officers, that we are likely,
unless we are careful, to create. Now,
see what you are doing. The com
mittee of the whole upon the execu
tive article, as it now stands, pro
pose to create the office of Governor.
of Secretary of state, of State Audi
tor of Public Accounts, of Treasurer,
of Superintendent of Public Instruc
tion, and an Attorney General.
There are six officers. See what
you pay them. You pay your Gover
nor $4,000. You pay each of three
of these officers $2,000 more which
makes $6,000. There is $10,000.
You pay your Treasurer $2,500, and
your Attorney General $2,500 more,
which makes $5,000. There is $15,-
000 for salaries of officers of the ex
ecutive department. Now, gentle
men, if you create this board;, you
cannot give any gentleman who is
fit to be on this board any sum less
than $2,000 per year. If you leave
it to the legislature to fix the salary
of these commissioners, you will find
they wili give them about $2,000 each
and mileage; and if you will count
up what the mileage will be going
over the state to Peru to look after
the Normal School and over here to
Lincoln, making one trip to consider
first the Capitol, then going back
home and coming back secondly to
inspect the states prison, and then
the University, and so on round

494 BOARD OF PUBLIC LANDS AND BUILDINGS

Thursday]

SPEICE— ESTABROOK

[July 20

everywhere over the state; and going
to Omaha to look after Deaf and
Dumb institution, you will find your
mileage will a good deal exceed
the salary you will give. If it is nec
essary, in order to get good men,
and in order to have these interests
fairly taken care of, that the offices
should be created, and this expense
incurred, why, all right. We will
have to do it. But if we can avoid
it, it is very important we should
do it. It is very important in a great
many ways that we should do so. I
tell the gentlemen from Lancaster,
who are especially interested in the
progress and growth of this town;
I tell the gentlemen in Lincoln, in all
candor and fairness, that it becomes
them to be exceedingly careful about
these large expenses. The day may
come when the people of this state
will become a little restive under
these large expenses, and these pub
lic buildings, in the erection of them,
will either be increased or the plans
very largely curtailed. I tell the
gentlemen of this convention, from
all parts of the state, that this mat
ter is one that deserves the most im
portant consideration at their hands.
I tell the gentlemen of this con
vention that when they go back to
their constituents, and show them
the constitution on this plan it will
be rejected.
Now, I am opposed to the amend
ment. I am in favor, if a board is
to be created, to have this board take
charge of all the property of the
state. I differ from the gentleman
from Lancaster, that it is not a very
material matter. I think is is very
material. I think we ought to make

these commissioners, three.four, five
or six in number, as we may decide
— I think they should take charge
of all the property of the state, if
we create this board at all — pay
these state officers a good salary and
then make them earn their money.
But, leaving that matter out of the
question, I am decidedly opposed to
multiplying these offices. We will
run along here until we get, not only
these six offices, provided in the ex
ecutive article, but the twenty spoken
of by the gentleman from Lancaster.
It will not do.
Mr. SPEICE. Mr. Chairman. I
move to amend by striking out all
preceding the word "whose" in the
3rd line, and substituting this:
The Secretary read the substitute
as follows:
That the Governor, Secretary of
State, and Auditor of State and the
Superintendent of Public Instruction
shall constitute a board, to be called
"Commissioners of State Institutions
and Public Buildings."
Mr. ESTABROOK. I think the
Attorney General should be included,
if the state officers are to go in.
Mr. SPEICE. I am willing, Mr.
chairman, to have the name of the
Attorney General inserted. The sec
tion will then read:
That the Governor, Secretary of
State .Auditor of State, the Superin
tendent of Public Instruction and At
torney General, shall constitute a
board to be called "Commissioners
of State Institutions and Public
Buildings," whose duty it shall
be to have the general supervision
and control of all state institutions
and public buildings, and the care
and sale of all lands appropriated for
and belonging there to.

BOARD OF PUBLIC LANDS AND BUILDINGS 495

Thursday]

NEWSOM— STRICKLAND— SPRAGUE

[July 20

If the name of the Superintendent
should not be there I am willing to
have it stricken out.
Mr. NEWSOM. Mr. Chairman. I
think there is eminent propriety in
having the name of the Superintend
ent of Public Instruction in that pro
vision. It is fit and proper he should
be there on account of his knowledge
of the business.
Mr. STRICKLAND. Mr. Chairman.
It seems to me that this board, sit
ting as a board having supervision of
the schools can deputize one indi
vidual to go and look after one in
stitution while another would be sent
to look after another; the whole
board looking after the institutions
located here. I understand that in
the past year, the Regents of the Uni
versity here, have rolled up very
large sums as claims for services ren
dered. They will come from our
town, for instance, sit here one day,
and- go back with seventy or eighty
dollars in their pockets. I think that
the proposed amendment will sub
stantially guard against this. One
member of the board can attend to
the business to a great extent, when
it comes to visiting other institutions
than those located, and, except in
special cases, avoid this great ex
pense. There was no more necessity
for the ten Regents to our University
when we don't require more than
three or four, than there is for a
wagon to have five or six wheels.
Mr. SPRAGUE. Mr. Chairman. I
am as much in favor of economy pro
posed, as any gentleman can be, but
I am opposed to this amendment,
and for this reason; the committee
on schools have already adopted a

section which provides for a board
which shall have control of the Nor
mal, University and other schools
named in this section. Now if we
adopt this, which provides for anoth
er board which shall have supervis
ion of the same schools, it will neces
sitate our doing away with one or
the other of these boards. At the
time this matter was discussed, in
connection with the report of that
committee, I presented a proposi
tion which was voted down, lt was
about the same as this, but it was
voted down; and all the committee
adopted a resolution that the state
officers and such others as the legis
lature should provide, should consti
tute that board. So far as the sale
and care of the state lands are con
cerned, this section was fully dis
cussed, and it was clearly the opin
ion of the members of tho convention
at that time, that there should be
another department for the sale and
care of these lands; and the report
was referred back to the committee
with instructions that they would
create this office. Now if we are to
review all that, when will we get
through? I don't think we had bet
ter leave the report as adopted by the
committee, and let the legislative ar
ticle remain as it is.
Mr. STEVENSON. Mr. Chairman.
I am as much in favor of economy
as any other member of this conven
tion, but I don't see how we are going
to save expenses by imposing this on
the executive officers of the state. I
think that they have their hands
full without imposing on them
these additional duties. As I under
stand it is not the intention of the

496 BOARD OF PUBLIC LANDS AND BUILDINGS

Thursday]

GRIGGS —MOORE— WAKELEY

[July 20

gentleman offering this amendment
to impose these duties without addi
tional pay, but the idea is to give
them the same pay as other men.
Now then as far as these men run
ning down here from Omaha and
collecting railroad fare, I believe
they will not be any more likely to
do so than the Governor and other
officers, in performing these duties.
I think before we adopt this amend
ment we should take all these things
into consideration. I think these of
ficers will have enough to do to at
tend to the duties of their offices, and
I think this board should be men who
could give their whole attention to
the subject of education.
Mr. GRIGGS. Mr. Chairman. I
am in favor of the amendment for
several reasons, one on account of
expense. I believe it will be much
less if we leave all the matters of the
State Institutions in the hands of the
officers named in the executive ar
ticle. We have already provided that
they shall live at the state capital,
where the most of these buildings are
and where most of this business must
be done and these being included in
the duties of their offices, they would
be already paid. I must differ from
the gentleman for Cuming (Mr.
Stevenson) when he says the salaries
of other men on this board will not
be much greater than to pay these
officers. These officers must reside
here, whereas if we elect a board of
commissioners they may reside in
any part of the state and will have to
be paid for coming here to attend to
the business.
Mr. MOORE. Mr. Chairman. I
offer a substitute for the whole

amendment. "That a Board of Commissioners
be chosen at the first general election
after the adoption of this constitu
tion, one from each judicial dis
trict, who shall have the general su
pervision and control of state in
stitutions and public buildings."
Mr. GRIGGS. Mr. Chairman. I
rise to a point of order, I believe that
the substitute is an amendment and
out of order.
The CHAIRMAN. The chair de
cides that the substitute is in order.
Mr. WAKELEY. Mr. Chairman.
This perhaps is as proper an occasion
as any for members to express their
views on the subject under consider
ation. The substitute proposes to
elect a board of commissioners. My
views are that we ought to have the
state officers to comprise that board,
the duties which it is proposed to de
volve upon this board, can in the
main be discharged by the state ot-
ficers with very little additional ex
pense to the people. In the mean
time it seems to me that there is a
property by creating a head to the
Land Department, and I calculate
to favor a plan in substance like this;
that there shall be elected one land
commissioner, and that the other
members of the board shall consist of
the whole of the other state officers.
The reason for the election of a
land commissioner is that there is a
large body of land, and there should
be one officer whose special duty
should be to have supervision of the
landed interests of the state. The
governor, auditor and secretary of
state, each has a department, and
while they could give some attention

BOARD OF PUBLIC LANDS AND BUILDINGS 497

Thursday]

McC ANN- MAJORS

[July 20

to the disposal of the land yet no
one of them by reason of the duties
of his office is charged with the care
of the land of the state. I think by
reason of the great value of these
lands we can elect one officer who
shall have these special duties placed
upon him. The gentleman from Ne
maha is preparing a section which
shall have special reference to this
matter. Again, I believe that this
board should not have the charge
of the educational interests of the
state. I believe it is improper to con
nect the two subjects of the disposal
of the lands of the state, and the edu
cational interests of the state. I
think they should be under separate
control and supervision. The care
and supervision of the public build
ings is the material property and in
terest of the state, but the manage
ment of the educational interest of
the state, all questions connected
with the method of instruction in the
different schools and educational in
stitutions is of an entirely different
nature and I think ought to be under
the charge of the Superintendent of
Public Instruction and such other
officers as the legislature may pre
scribe. I therefore am opposed to
section three of this article. I think
we ought to avoid a multiplicity of
officers, on the other hand I think
our landed interests are of sufficient
consequence to have one officer
charged with the duties connected
with that department.
Mr. McCANN. Mr- Chairman.
This whple system is surrounded with
difficulties and I do not believe the
committee are prepared to either
adopt or reject the report of the com-
32

mittee this morning. I wish to avail
myself of this opportunity to state
to the committee that I am one of
the Regents of the University, and
have been so since February last.
I have attended three meetings of
the Board and have received, not a
salary, but what the law provides
shall be paid to the Regents living
at a distance, that is twenty cents
per mile going to and returning from
such meetings. I have received
twenty-two dollars and forty cents
for such services which does not in
clude any time. The Regents are
not entitled to any greater compen
sation than this mileage. In this
connection, Mr. Chairman, I believe-
that we should so provide that the
expense of managing our educa
tional interests shall be economized,
and for the election of a Land Com
missioner who shall manage all of
the lands belonging to the school
fund and the revenue arising there
from, or provide that the educational
interests of this State shall not be
committed to a large number of indi
viduals receiving mileage or large
salaries for their services. I hope,
Mr. Chairman, that this will be re
committed to the Committee, not
with instructions as to what they
shall do. but an intimation that this
committee believes the State officers
should constitute a Board of Public
Instruction, and that a Land Com
missioner shall be provided for who
shall manage the lands and the
moneys derived from the school and
other lands of the State.
Mr. MAJORS. Mr. Chairman.
This is a question to which I have
given some thought, and whilst my

498 BOARD OF PUBLIC LANDS AND BUILDINGS

Thursday]

MAJORS

[July 20

views may not benefit anybody else,
yet I will state them. I am opposed
to all the amendments and the origi
nal article as it stands. In the first
place I am opposed to the manage
ment of the entire interests men
tioned here, by any commission that
may be brought about in this way,
and in the second place, as to the
amendment offered, I am of opin
ion that every officer of the State
should have his duty assigned him,
that he cannot in any possible way be
mistaken as to what is his duty. You
take gentlemen grouped together and
put upon them general duties to per
form, and as long as their minds run
parallel they may work smoothly,
but after a while there will be diff
erences of opinion come up, and they
get a disposition to oppose each
other, thereby injuring the interests
of the people committed to them.
Human nature is human nature. As
has been justly remarked, we are
men and not angels. The best of
men who may be grouped together
would be something out of the nat
ural way of business if they should
all be pure minded. Obviate this
difficulty, and prevent our people
from getting into such trouble as
this. Let us fix definitely the du
ties of the officers of the State, and
if we make provision for a Land
Commissioner, let us hold him in
dividually responsible to us for his
work, and not distribute the respon
sibility among several State officers,
without having any one directly
bound to the people. Now, Mr.
Chairman, as to the public build
ings, instead of having the multipli
city of minds we have now, let us

provide in this Constitution for one
individual to attend to that work,
put him under such bonds as shall
make it safe to the building interest
of the State, that he shall perform
his duty. So far as the educational
interests are concerned, I think it
would be wise to leave this matter
to the Legislature in a great measure,
to provide by law. So far as the
workings of the Normal School is
concerned, I will say that I am very
familiar with its workings. I have
been fortunate, or unfortunate, in
being a member of the Board of Edu
cation of the Normal School from
its organization to the present time,
and if there has been any fault found
by any gentleman of the State in re
gard to its workings, I have not
heard it. We are authorized by law
— five of us in number — to hold four
meetings in a year. We can draw
if we choose, three dollars per day.
The Board never has spent more than
one day at each meeting, which you
can multiply by three, and see what
the Board can draw in the aggre
gate according to law. I believe
there has been no disposition to ask
or receive a cent beyond that, and
I will say right here, Mr. Chairman,
that there are interests arising in
the conducting and management of
the Normal School in particular, that
demand the attention of the Board
of Education. And I have spent
days, and I know otners nave done
the same, and we have never thought
of bringing a cents' charge against
the State for the extra services out
side the four days. We have man
aged the interests of that Normal
School in such a manner as that the

BOARD OF PUBLIC LANDS AND BUILDINGS 499

Thursday]

CASSELL

[July 20

entire appropriation of the State is
given to our work. And last win
ter, when the members of the Legis
lature were engaged in investigating
the wrongs which had been done the
State, they mentioned, as an honor
able exception, the State Normal
School. And, since this has worked
so much good to the educational
interests of our State in the hands
of the present system of manage
ment, why should we take it away
and place it in the Executive officers
of the state? I ask, gentlemen, to
consider this question carefully; to
act dispassionately, and cast their
vote on the side they believe is right.
And I believe that right economy
will be observed, and the interests
of the State better cared for, by hav
ing each particular branch placed in
a particular body of men than by
placing the whole upon one body.
Mr. CASSELL. Mr. Chairman. I
will just state to the gentleman that
no reflections were intended to be
cast upon the managers of the
Normal School, or others who have
performed various duties in the State.
The gentleman thought it would be
hetter to leave it to the Legislature.
Now this is what we want to avoid.
And why? Simply because the mat
ter heretofore has been left to the
Legislature, and instead of having
one board created to attend to these
duties we have four or five separate
hoards of commissioners. I think
this body is just as competent to re
gulate this matter here and now, as
the Legislature next winter will be.
And it is that we may regulate these
matters that we wish to create this
single board. The gentleman spoke

of one person as a commissioner. I
think this in itself is objectionable;
and that we ought to have several
individuals- to attend to the letting
of contracts instead of one. It has
been said here that if parties are
desirous to corrupt one is much
easier corrupted than half-a-dozen.
And for that reason I argue that sev
eral persons, and not one, should
have this in their charge, and be re
sponsible to the state for the money
placed in their hands. The gen
tleman from Douglas said he was
desirous that their servants should
earn their money. That is why we
ask so many duties to be performed
by this board. We cannot see why
five persons cannot perform all the
various duties required in this sec
tion; and we do not expect there
is too much for them to perform.
We expect them to have work to do
for their salary; and lt is in order to
save expense that we ask for them to
do! so much. It is my desire, if this
section is carried through, that no
other board shall be created. We
do not wish another board. We wish
this to take the place of all other
commissioners. Some may argue
that the Superintendent of Public
Instruction will come in the way. Mr.
Chairman, I wish that officer to be
one of this Board of State Commiss
ioners. The same objection is argued
in regard to others — the Land Com
missioner for instance. If we have
such an officer, why not let him be
a member of this board? Such is my
desire. We have saved the salary of
two Commissioners whom we desire
to include in this section. So far as
the Board of Education is concerned,

500

BOARD OF PUBLIC LANDS AND BUILDINGS

Thursday]

HASCALL— CASSELL

[July 20-

I consider that the Superintendent of
Public Instruction is all, the board
we require. He will do it properly
and economically if we appoint a
proper man. It has been argued that
these gentlemen will not be prepared
to act as Regents of the University.
Well, we have a Chancellor and a
Board of Professors and they will
attend to the duties of that institu
tion, and they will object when the
other gentlemen attempt to interfere.
The board we propose can attend to
all matters outside, and the Regents

duties of these state officials are not
so great as to debar them from per
forming these duties. They should
have the welfare of the state at
heart, and should take pride and de
light in looking after the interests
of the state. Parties have argued
this question as though the board
would have to attend to all the de
tails relative to these various institu
tions. That is a mistake. The de
tails are to be carried out by others.
The Superintendent of Public In
struction has the management of the

atend to the finances, etc. The ob- | schools throughout the state but the
jections argued are here provided I details by others. So with the Nor-
against. I am decidedly in favor of mal school.,

a board of this kind. And while
there is nothing directly upon this
question in the Constitution of the
United States, yet it is a good plan
and will save money to the State.
Mr. HASCALL. Mr. Chairman. I
am of opinion that we have no need
of any article which contains such a
section as this, in our constitution.
On a former occasion, we adopted a
section which is adequate for the
management of our common schools
and also for the University, Agricul
tural college and Normal school.
Mr. CASSELL. I believe that sec
tion has not been adopted by this
convention . I

There is a reason why we should
create a board separate from the-
state officials. I am inclined to think
that t>is State Normal school has
been well managed but if the parties
who had charge of it had been in
clined to abuse their privileges, the
state would have suffered for the-
reason that they have had it in their
power to conceal their acts in refer
ence to it. If you make the board
transact the business at the state-
capital and have their actions a mat
ter of public record at the seat of
government, the legislature will have
access to that record so as to cor
rect abuses. This article is wrong

Mr. HASCALL. May be, Mr. Chair- in theory. It attempts to take cer-

man, that that was one of the mat
ters which was referred back to the
committee on executive; but I am de
cidedly in favor of conferring all
these duties upon the state officials.
We are making provision for five or
six state officers, expect to pay them
liberal salaries, and that they will
reside at the seat of government. The

tain matters which are under the-
control of the legislature, from out
of the control of that body. If we-
attempt to put legislative matters in
the constitution, then we must go
into detail, and our constitution is a
failure. Further than that, if we un
dertake to fix a matter in the con
stitution for all time, or until the-

BOARD OF PUBLIC LANDS AND BUILDINGS

501

Thursday]

ROBINSON— MOORE

[July 20

constitution is amended we take it
-out of the power of the legislature
to correct evils which may exist. We
propose to provide for an annual leg
islature. Why do we do this? It is
in order that the representatives of
the people may meet at the capital
once a year and look after their in
terests. There is no reason why
these state officers cannot attend to
all these duties. The Superintendent
of Public Instruction has general con
trol of the educational interests of
the state, and he acts with the board,
in order to advise with regard to his
department, and if you create a Land
Department, we have another state
officer, and he is connected with this
board and has charge of matters
relating to the department. The of
ficer who has charge of the Penitenti
ary is also a member of the board.
We may incorporate one section in
this constitution on the subject pre
sented in this article, but when we
step beyond that, we go beyond what
we ought to do in this direction.
Mr. ROBINSON. Mr. Chairman. I
am opposed to the section. I am also
¦opposed to imposing these duties up
on the state officers. I think when
we require responsiblity at all, it
should be direct responsibility. Now
if we impose this upon the state offi
cers, as this section proposes, the ex
ecutive department will be over
crowded. I believe in multiplying
these boards. I think the expense is
lessened, for one thing, I believe di
rect responsibility is attained, which
is another thing. I believe there is
enough material to create these
boards of — that there are plenty of
capable men to fill the positions who

will not ask more than their mileage.
I believe that there are gentlemen
all over the state who will be proud
to occupy these positions, and who
will feel their responsibility more
than if the board were provided in
any other way. If the board is made
up in this way, and is found to work
badly, the legislature can abolish it.
I would renew, Mr. Chairman, a mo
tion which was made here, but I be
lieve was riot seconded, to re-commit
this whole matter to the committee.
The CHAIRMAN. The chair is of
the opinion we cannot re-commit in
committee of the whole.
Mr. ESTABROOK. Mr. Chairman.
If the gentleman will change his mo
tion, I will be willing to support it.
That is that it be committed to
special committee number 5.
Mr. ROBINSON. Now make that
motion, and I will second it.
Mr. MOORE. Mr. Chairman. I
move it be referred to the 3 standing
committees on education, school funds
and lands, state institutions and
public buildings and state lands other
than school lands, numbers 22, 6,
and 18.
The CHAIRMAN. Gentlemen. The
motion is that the Committee do rise
and recommend to the convention
that this whole subject matter be re
ferred to committees number 22, 6,
and 18.
Mr. GRAY. Mr. Chairman. I
hope this motion will not prevail.
Now it is very evident that these
committees never would and never
could agree upon anything. Let
us have this referred to a special
committee of gentlemen chosen

502

STATE UNIVERSITY REGENTS

Thursday]

ROBINSON— MYERS— MctfANN

[July 20

with reference to this special mat
ter, so that they can afterwards
come in and give to this house good
reasons for their action. I hope a
motion to refer this to a special com
mittee of three or five, will prevail.
Mr. ROBINSON. Mr. Chairman. I
move that when this committee rise
and report this matter back to the
convention, that it be referred to a
special committee consisting of the
chairmen of committees 6, 18 and 22.
The CHAIRMAN. That would be
Messrs. Estabrook, Cassell and Wool-
worth.
" Mr. ESTABROOK. Mr. Chairman.
I move to add Mr. Thomas and Mr.
Woolworth. The CHAIRMAN. Does the gen
tleman from York, (Mr. Moore) ac
cept? Mr. MOORE. I do not.
The CHAIRMAN. The question is
on requesting that it be referred to
the three standing committees Nos.
22, 6 and 18.
The motion was not agreed to.
The CHAIRMAN. The question is
now upon the motion of the gentle
man from Lancaster asking that it be
referred to the chairmen of the stand
ing committees, Nos. 22. 6, and 18
Messrs. Myers, Woolworth, Thomas
and Curtis.
Mr. LAKE. Mr. Chairman. I
move to amend by inserting the
words "that we do now arise."
Mr. STRICKLAND. Mr. Chair
man. I move to amend by adding
Mr. Speice to that committee.
The amendments were accepted
and the motion was agreed to.

Mr. MANDERSON. Mr. President.
The committee of the Whole have had
under consideration the report of the
committee on State Institutions and
Public Buildings and have instructed
me to report that they recommend
that the subject matter under con
trol of that committee be referred to-
a special committee consisting of the
Chairmen of committees Nos. 22, 6,
and 18, and Messrs. Woolworth,.
tee which I will read.
Mr. MYERS. Mr. President. I
move that the report be received and
the request granted.
The motion was agreed to.
Mr. MYERS. Mr. President. I
hold in my hand a proposition which
I ask to be referred to that commit
tee which I will read:
"The Supreme Court shall appoint
five regents for the University and
Agricultural college and the same
number of Regents for every state in
stitution which Boards shall con
tinue in office for three years, or un
til their successors in office are ap
pointed: and said Boards shall report
annually to the governor, who shall
transmit the same to the legislature.
The PRESIDENT. The question is
on referring this proposition to the
special committee just raised.
The motion was agreed to.
Mr. McCANN. Mr. President. I
wish to offer the following resolution
and with the consent of the conven
tion I will read it. (Leave.)
"Resolved, That the secretary of
the Board of Regents of the State
University be, and he is hereby re
quested to inform this convention on
the following points, to-wit:
First. The amount of funds receiv
ed by him belonging to the state and
from what sources.

UNIVERSITY REGENTS' EXPENSES

503

Thursday]

McCANN— WOOLWORTH— ESTABROOK

[July 20

Second. The amount paid on ac
count of buildings.
Third. The amount paid as mile
age to members of the Bo?.rd of Re
gents and how much to each.
Fourth. The amount expended for
all other purposes."
Mr. SPEICE. Mr. President. I
move the adoption of the resolution.
Mr. McCANN. Mr. President. I
will state that I am here asking for
information which is in my own
knowledge, but I wish to come
before this convention officially. I
sir, acknowledge to have received
$22.50 for my expenses as a member
of that board. I will state that I do
not wish to sit here silent and hear
of large amounts being paid for the
services of the Board of Regents
without this convention knowing
just what those expenses are.
I undertake to say that I have
been astonished this morning that one
intelligent gentleman here, a lawyer
who says he didn't know just how to
get the information which I have
asked for. I think sir, there is a
great deal of buncomb connected with
this discussion. We all know how
how to reach these officers and know
just what funds are used.
Mr. WOOLWORTH. Mr. Presi
dent. I made the inquiry of my
friend from Otoe (Mr. McCann) be
cause at the end of the report of the
Regents of the University it was stat
ed the mileage was paid out of the
general fund of the State because
there was no funds in the treasury.
I know but little about it, but as for
buncomb, he knows that is an arti
cle I never deal in.
Mr. McCANN. I will state that I
did not refer to the gentleman on my

right (Mr. Woolworth) but did refer
to the other gentleman on my left
(Mr. Estabrook). I will state for
the information of the gentleman on
my right (Mr. Woolworth) that there
is a large fund in the hands of the
treasurer of the University.
Mr. HASCALL. Mr. President. To
make the subject of the resolution full
I would propose to amend by adding
mileage "and other expenses."
Mr. McCANN. I accept the amend
ment. Mr. ESTABROOK. John Phoenix
said in leaving California he waved
his hand and said "good-bye Colonel"
and several men said "good-bye old
fellow. "When the gentleman (Mr. Mc
Cann) remarked that a gentleman of
intelligence had remarked so and so,
several gentlemen rose to their feet
here. I inquire of a member of the
Board of Regents about the amount
of the pay, and he said to me "don't
you know the law?" I answered" no,
sir, that is just what I asked you
for." "Well," said my friend "if you
don't, it is time you did." That is
just what I thought. I said I sup
posed they were appointed by the
governor. "No sir," said he, "they
are appointed by the legislature." I
do insist still that it is a little close
corporation, and I cannot tell today
where to go to find out what the
amount of the funds are.
The PRESIDENT. The Auditor-
has informed me that the gentleman
is here who has the account of that
matter. Mr. ESTABROOK. Who is he?
Mr. PRESIDENT. A Mr. Davis I
believe, i

504

METHODIST CHURCH RESOLUTIONS

Thursday]

NE WSOM— PHILPOTT-MOORE

[July 20

Mr. McCANN. No sir, Mr. McCon-
nell, is secretary of the board.
Mr. ESTABROOK. There is anoth
er man (The President) that is ignor
ant. (Laughter.)
Mr. McCANN. We furnish infor
mation which cannot be obtained out
of Estabrook's Revised Statutes.
The PRESIDENT. The question is
on the passage of the resolution as
amended. The resolution was agreed to.
Mr. NEWSOM. Mr. President. I
have a resolution and move its refe
rence to the special committee just
appointed. The secretary read the resolution
as follows:
There shall be elected at the first
general election provided for in this
constitution and every two years
thereafter, one Superintendent of the
penitentiary, one superintendent of
the insane asylum, one land commis
sioner, and these officers together
with the governor and attorney gene
ral shall constitute a Board of Com
missioners whose duties it shall be
the general supervision and control of
all state institutions and public build
ings and the care and sale of all lands
appropriated for and belonging there
to. The motion was agreed to.
Mr. PHILPOTT. I have a commu
nication. Communication read by the secre
tary as follows:
To the Honorable, the Constitu
tional Convention of the State of Ne
braska: Gentlemen: —
The following resolutions were
adopted by the Nebraska Annual Con
ference of the Methodist Episcopal
church at its last sess'on, held in
Lincoln, April 2d, 1871.
In compliance with the fourth

resolution, we the committee appoint
ed by the Conference respectfully
present to your honorable body these
resolutions: (Signed.) H. T. DAVIS.
Chairman of Com.
Lincoln, July 15, 1871.
Resolved, First. That we are op
posed to any and all legislation for or
against the use of the Bible in the
Public Schools of the state.
Second. That we are in favor of
equal taxation of all property other
than state, county and municipal pos
sessions. Third. That we urge the members
of the Constitutional convention call
ed by the legislature of this state to
meet in June next to secure the above
provisions by proper constitutional
enactments thus removing these
matters from the control of legisla
tive action in the future.
Fourth. That a committee of
three be appointed to present to the
convention aforesaid the action and
resolutions of this Conference and if
opportunity is offered, to make a ver
bal explanation of the reasons there
for. Mr. PHILPOTT. Mr. President. I
move that resolution number two
be referred to the committee on Fi
nance, the rest to the committee
on miscellaneous.
The motion was agreed to.
Mr. MOORE. I have a petition.
The secretary read the petition as
follows: '
To the Honorable Gentlemen com
posing the Constitutional convention
of the state of Nebraska,
Gentlemen: We the citizens of York and Ham
ilton counties respectfully ask that
you engraft a clause into the con
stitution prohibiting the county com
missioners of any county in the state
from issuing bonds for the purpose
of building or assisting to build

AMENDMENTS TO CONSTITUTION

505

Thursday]

BOYD-HASCALL-MANDERSON

[July 20

railroads in the same.
Signed by G. K. Baker and 36
others. Mr. BOYD. I move it be referred
to the committee on state, county and
-municipal indebtedness.
The motion was agreed to.
Adjournment.
Mr. HASCALL. Mr. President. I
move to adjourn.
The motion was agreed to, so the
Convention at eleven o'clock and fifty
minutes adjourned. Afternoon Session.
The Convention met at two o'clock
and was called to order by the Presi
dent. Special Order.
The PRESIDENT. Gentlemen:
The special order of this hour is the
report of the committee on Bill of
Rights. Mr. MANDERSON. Mr. Presi
dent. In the same resolution that re
quired the Bill of Rights should be
a special order at two o'clock, I be
lieve the bill of the Committee on
Future Amendments was also a speci
al order. I hope the Convention will
take the latter bill first as Judge
Wakeley is detained by business of
importance for a. short time and ex
pressed a. desire to take part in the
discussion of the Bill of Rights. I
make a motion to that efect.
The motion was agreed tb.
The secretary read the first section
of the Bill of Future Amendments
;as follows:
Sec. I Any amendment or amend
ments to this constitution may be
proposed in the senate or house of

representatives, and if the same shall
be agreed to by a majority of the
members elected to each house, such
proposed amendment or amendments
shall be entered upon the journals,
with the yeas and nays taken there
on, and the Secretary of State shall
cause the same to be published week
ly for three months immediately
preceding the next election in
at least one newspaper in every coun
ty in which a newspaper shall be
published, and if in the legislature
next afterwards chosen such pro
posed amendment or amendments
shall be agreed to by a majority ot
the members elected to each house,
the Secretary of State shall cause the
same again to be published for the
time and in manner aforesaid, and
such proposed amendment or amend
ments shall be submitted to the elec
tors of this state for adoption or re
jection at the next election of mem
bers of the legislature in such man
ner as may be prescribed by law, and
if the people shall approve and ratify
such amendment or amendments
by ?. majority of the qualified voters
of the state voting thereon such
amendment or amendments shall
become a part of the constitu
tion; provided, that if more than one
amendment be submitted they shall
be submitted in such manner and
form that the people may vote for or
against each amendment separately
and distinctly.
The first section was adopted.
The secretary read the second sec
tion as follows:
Sec. 2. Whenever two-thirds of
the members elected to each house
of the legislature shall by a vote en
tered upon the journals thereof con
cur that a convention is necessary to
revise, alter, or amend the Constitu
tion the question shall be submitted
to the electors at the next general
election. If a majority voting there
on at the election vote for a conven
tion the legislature shall at the next
session provide for a convention

506

RELIGIOUS FREEDOM— PRESS

Thursday]

MYERS— GRIGGS

[July 20-

and shall in the act calling the
convention designate the day, hour
and place of its meeting, fix the
pay of its members and officers
and provide for the payment ot
the same together with the ex
penses necessarily incurred by the
convention in the performance of its
duties. The law submitting the question
shall be published for the time and
in the manner provided in the preced
ing section as to proposed amend
ments. The second section was adopted.
The PRESIDENT. It will be seen
by the 50 th rule, that after the
amendments reported by the commit
tee of the whole shall have been
acted on, it shall be open to amend
ment by the convention, and we are
at that point now.
Mr. MYERS. Mr. President. I
now move that this bill be ordered
engrossed for the third reading.
The motion was agreed to and the
bill ordered engrossed.
Mr. MYERS. . Mr. President. I
would enquire how long it will re
quire to engross that bill, and wheth
er any preparation has been made
for the engrossing of it.
The PRESIDENT. It will neces
sarily have to be engrossed by an en
grossing clerk, in a good round
hand, and it will be done immedi
ately. Mr. GRIGGS. I move that we now
proceed to the consideration of the
Bill of Rights.
The motion was agreed to.
The secretary read the first sec
tion of the article, as follows:
"All by nature are free and inde
pendent, and have certain inherent

and inalienable rights — among these
are life, liberty and the pursuit of
happiness. To secure these rights
and the protection of property, gov
ernments are instituted among men,
deriving their just power from the
consent of the governed.
The first section was adopted.
The secretary read the next sec
tion as follows:
Sec. 2. No person shall be de
prived of life, liberty or property
without due process of law.
The section was adopted.
The secretary read the next sec
tion, as follows:
Sec. 3. The free exercise and en
joyment of religious profession and
worship, without discrimination,
shall forever be guaranteed; and no
person shall be denied any civil or
political right, privilege or capacity
on account of his religious opin
ions; but the liberty of conscience
hereby secured shall not be con
strued to dispense with oaths or
affirmations, excuse acts of licen
tiousness, or justify practices incon
sistent with the peace and safe
ty of the. state. No person shall
be required to attend or support any
ministry or place of worship, nor
shall any preference be given by law
to any religious denomination or
mode of worship.
Section three was adopted.
The secretary read the next sec
tion, as follows:
Sec. 4. Every person may freely
speak, write and publish on all sub
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth, when published with good
motives and for justifiable ends, shall
be a sufficient defense.
Section four was adopted.
The secretary read the next sec
tion, as follows:
Sec. 5. The right of trial by jury
as heretofore enjoyed, shall remain
inviolate; but the trial of civil cases;

TRIAL BY JURY

507

Thursday]

ROBINSON— GRIGGS— L AKE

[July 20

before justices of the peace by a jury
of less than twelve men, may be au
thorized by law.
Mr. ROBINSON. Mr. President. I
move that the words "less than
twelve men" be stricken out and in
sert "not less than six men."
The PRESIDENT. The question is
upon the amendment offered by the
gentleman from Lancaster.
Mr. MAXWELL. Mr. President. I
trust that the amendment will not
prevail. The common law provides a jury
of 12 men, and now we provide that
a jury of less than 12 men may be
caller in inferior courts.
Mr. GRIGGS. Mr. President. I am
opposed to the amendment. I think
the original is good enough. I think
if we cannot trust the legislature to
say that it shall not exceed twelve
men, we cannot trust it with any thing.
I believe the people will be satisfied
with it, as it is. It is not often less
than six men will be called.
Mr. ROBINSON. Mr. President. In
answer to the gentleman from Cass
(Mr. Maxwell) I will say that I
don't understand the provision will
compel the party to take a jury of six
men. If the parties to a suit can
agree to take less than six, or go to
trial without a jury at all, they can do
so. What I meant is that a party may
insist he will not go to trial with a
jury of less than six. I will remind
the gentleman from Gage (Mr.
Griggs) that we are laying down
here, our rights — those rights which
we can insist upon. I don't think
that any legislature will ever dare
to change the law in that regard, but
sir, we are preparing a Bill of Rights,
in which we propose to assert what

we can claim. Let a man insist at
least upon a jury of six men, if he
desires it.
Mr. LAKE. Mr. Chairman. I
think perhaps the object desired by
the gentleman from Lancaster is a
proper one. It seems to me the lan
guage proposed would not authorize
a trial before a magistrate by a jury
composed of less than six men, even
if the parties themselves may agree
to a less number. How would it read,
"The right of trial by a jury of not
less than six men may be authorized
by the law." Now it sesms to me
this would preclude trial by a jury
of less than six. This would be pre
cluded by law. We now have a pro
vision of this kind which will give a
right to trial by a jury of less, even,
than six men, where the parties
agree. There is danger of that kind
of a construction.
Mr. ROBINSON, (to Mr. Lake)
Supposing the legislature should pass
a law in pursuance of this resolution
authorizing the right of trial by jury
would a party have a right to waive
this, and go to trial without a jury?
Mr. LAKE. Yes sir, parties, I sup
pose may agree to submit their differ
ences tb individuals; they may pro
vide various ways to settle their dif
ficulties; but the language here used
may be susceptible of more than one
construction, and if the gentleman
from Lancaster (Mr. Robinson) is
willing to leave the matter to the
legislature, why not leave it as
amended by the committee. I am
not particular as to this, but we find
there are gentlemen here upon this
floor, who differ as to what the lan
guage may contain. I am willing to
leave this to the wisdom of the leg-

508

BOARDS OF INSANITY

Thursday]

MASON

[July 20

islature. I believe public sentiment,
as reflected through the legislature
will keep this matter where it ought
to run.
Mr. ROBINSON. Mr. President. I
withdraw my amendment.
Mr. MASON. I move to amend the
section by adding the words "provid
ing that the legislature provide a
tribunal or board for the determina
tion of the plea of insanity, where-
ever interposed in a criminal case,
other than by a jury of twelve men."
Before this question is voted upon by-
the Convention, I desire to submit
briefly the reason why this appar
ently radical change is sought to be
imposed in the law. First, insanity
has been determined, generally, on
no well settled principle and to call
attention to this subject, I desire that
the gentlemen of the Convention may
know what has been the rule laid
down heretofore. I read from Ray's
Medical Jurisprudence of Insanity
commencing on page 55.
Sec. 41. Criminal trials, in which
insanity was pleaded in defense, have
"been generally so little known be
yond the place of their occurrence
that it is difficult to ascertain on what
particular principles of the common
law the decisions of American courts
have been founded, though from all
that can be gathered, it appears that
their practice., like that of the Brit
ish, has been diverse and fluctuating.
In the trial of Lawrence, at Wash
ington, in 1835, for shoooting at
President Jackson, the jury were ad
vised by the court to regulate their
verdict by the principles laid down in
the case of Hatfield, which had been
stated to them by the district attor-
, ney. In the case of Theodore Wilson,
tried in York county, Maine, in 1836,
for the murder of his wife in a parox
ysm of insanity, the court charged
the jury that if they were satisfied
the prisoner was not of sound mem

ory and discretion at the time of com
mitting the act, they were bound to
return a verdict of acquittal. This
is all that could be wished; and con
sidering that two highly respectable
physicians had given their opinion in
evidence that the prisoner had some
consciousness of right and wrong,
and that the attorney general, though
he admitted the existence of insanity
in some degree, denied that it was of
sufficient extent to exempt him from
punishment, supporting his assertion
on the authority of the leading Eng
lish cases relating to insanity, this
decision indicates an advance in
the criminal jurisprudence of insanity
that does credit to the humanity and
intelligence of that court. In the
trial of Cory, for murdering Mrs.
Nash, in New Hampshire, 1829, Chief
Justice Richardson, stated in his
charge to the jury that the only ques
tion for them to settle was, "Whe
ther ho was of the same mind when
the d^ed was done?"
Now Mr. President, I will not de
lay the time of this Convention in
reading a great number of cases, but
I desire to submit that the great num
ber of judges in laying down the rule
of law on this matter differ as wide
ly as juries themselves, and when
great judges differ where are we to
look for a legal decision?
The same language was used by
the same court on the trial of Pres-
cott, for the murder of Mrs. Coch
ran, in 1834. In State of Connecti
cut v. Abbott (1841), the jury were
instructed to acquit the prisoner if
they found "that he was insane — had
not sufficient understanding to dis
tinguish right from wrong, and did
not know that the murder of his wife
was an offense against the laws of
God and nature." In Commonwealth
of Massachusetts v. Rogers (1843),
the court Chief Justice Shaw, thus
stated the rule of law. "A man is

INSANITY OF CRIMINALS

509-

Thursday]

MASON

[July 20

not to be excused from responsibility
if he has capacity and reason suffi
cient to enable him to distingush be
tween right and wrong, as to the par
ticular act he is then doing, and a
knowledge and consciousness that the
act he is doing is wrong and criminal,
and will subject him to punishment.
In order to.be responsible, he must
have sufficient power of memory to
recollect the relation in which he
stands to others, and in which others
stand to him; that the act he is
doing is contrary to the plain dictates
of justice and right, injurious to
others, and a violation of the dictates
of duty." "The question is whether
the disease existed to so high a de-
agree, that for the time being, it over
whelmed the reason, conscience, and
judgment, and whether the prisoner
in committing the homicide acted
from an irresistible and uncontrollable
impulse." In People v. Kleim, New
York, (1846), the court, Judge Ed
monds, said that, to establish a def
ense on the ground of insanity, it
must be clearly proved that the party
accused was laboring under such a
defect of reason from disease of the
mind as not to know the nature and
quality of the act he was doing, or
if he did know it, that he did not
knqw he was doing what was wrong.
Also, if he have not intelligence and
capacity enough to have a criminal
intent and purpose, and if his moral
or intellectual powers are either so
deficient that he has not sufficient
will, conscious, or controlling men
tal power, or if, through the over
whelming violence of mental desire,
his intellectual power is for the time
obliterated, he is not a responsible

agent. In State v. Spencer, New
Jersey, (1846), the court, Chief
Justice Hornblower, declared that "if
the prisoner, at the time of commit
ting the act, was conscious that he
ought not to do it, the law holds
him responsible, and he cannot be
exculpated on the ground of insanity,
although on some subjects he may
have been insane at the time." In
People v. Freeman, New York,
(1847), it was held that the prisoner
was responsible if capable of perceiv
ing that the act was contrary to law.
In State v. Bender, Pennsylvania,
(1850), the court said that the pris
oner, to be acquitted on the ground
of insanity, should have been so de
ranged that he could not appreciate
the nature or consequence of the act
he was committing; his mind must
have been disturbed by disease or
other natural cause, to an extent to
deprive him of the power of reason
ing on the subject of the act he was
about to commit; and had not mind
enough to reflect, think and know
the difference between right and
wrong. In State v. Knepley, Penn
sylvania, (1850), the court said, that
before any man can be exempted or
relieved from responsibility for
crime, he must have such alienation
of mind as to entirely destroy his
perception of right and wrong in re
gard to the particular act, or be
laboring under such delusions or hal
lucination as controls his will and
renders the commission of his offence,
in his opinion a matter of duty or
necessity. In State v. Windsor, Dela
ware, (1851), the court instructed
the jury that the question before
them was, whether the prisoner was

510

DETERMINATION OF INSANITY

Thursday]

MASON

[July 20

under the influence of a diseased
mind, and was really unconscious at
the time he was committing the act
that it was a crime. In State v.
Clark, Connecticut, (1855), it was
held that the prisoner was not ac
countable, if he had not capacity and
reason enough to enable him to dis
tinguish between right and wrong in
this instance, to understand the nat
ure, character, and consequence of
the act, and to apply his knowledge
to this case, not being overcome by
an irresistible impulse arising from
disease. In State v. Smith, Pennsyl
vania, (1858), the court held that
the prisoner was irresponsible, if he
were governed by an uncontrollable
impulse, his will were no longer in
subjection to his reason, owing to
the excited and continued impetuosity
of his thoughts, and the confusion of
a mind impelled by disease and goad
ed by a sense of grievous wrongs. In
People v. Thurston, New York,
(1851), People v. Fyler, New York,
(1855), State v. Shoo, Illinois,
(1857), United States v. Holmes,
Maine, (1858), the law as expounded
by Chief Justice Shaw in Common
wealth v. Rogers, was adopted. In
State v. Mosler, Pennsylvania,
(1846), the court. Chief Justice Gib
son, said that insanity, in order to
exempt a person from punishment
for criminal acts, must be so great in
its extent or degree, as to be blind to
the nature and consequence of his
moral duty, and entirely destroy his
perception of right and wrong. In
United States v. McGlue, Massachus
etts, (1851), the court, Mr. Justice
Curtis, instructed the jury that the
question for them to settle was, whe

ther the prisoner understood the nat
ure of the act, and knew he was do
ing wrong and deserved punshment.
The loose, vague, and contradict-
tory tests of that kind of insanity
which alone can be regarded as a
sufficient excuse for criminal acts, are
strongly illustrated in this summary
of American decisions. The cause
of this curious fact will be sufficient
ly apparent on a little reflection. If
metaphysicians who have made the
rational mind their special study,
widely differ in their accounts of its
operations, could it be expected that
men who have given little or no at
tention to the phenomena of insan
ity, should be more successful in
ascertaining the character and con
nection of the thoughts and emotions
which occupy the irrational mind?
It is not strange that every step in
their analysis of motives and impul
ses should be marked by hesitation
and distrust and that tests of re
sponsibility once set up with
the strongest confidence, should
be either utterly abandoned, one after
the other, or limited by some indefi
nite qualifications. To this course
our courts have been driven, more
easily perhaps, than the English, be
cause their sense of justice has been
less controlled by authority and pre
scription. They see the miserable victim of
disease before them; they hear the
story of his freaks and fancies from
the lips of friends and neighbors, and
the testimony in his favor of disinter
ested experts, with whom perhaps
they may be personally acquainted.
Thus the conviction of his insanity
becomes irresistible, and they feel

TESTS OF INSANITY

511

Thursday]

MASON

[July 20

constrained to construe the law in
such a manner as afford him its pro
tection; and yet such a construction
might not have been thought of had
the general features only of the case
been presented to them in their
chambers. In this country as in
England, the insufficiency of the old
tests of responsibility has been gener
ally recognized, and here all harmony
of opinion ends. What the true test
really is, remains as far from being
settled as ever. The actual question
in such cases is, how the various ele
ments of responsibility have been af
fected by the presence of disease. To
answer it correctly, there is implied,
not only some knowledge of the con
stitution of the mind in its normal
condition, but also a thorough and
accurate knowledge of its manifesta
tions while under the influence of
disease. The former might be ex
pected, in some degree, at least, in
most men of a liberal culture, but the
latter must necessarily be confined
to persons who have made insanity
their special study. It is, in fact, as
strictly a professional matter as the
effect of malaria on the nervous sys
tem; and equally unfit to be present
ed for investigation to a bench of
judges. Here lies the foundation
error of the courts, in supposing that
the question of responsibility may be
settled -without the aid of scientific
research and observation, — in sup
posing that men who never in their
lives, perhaps observe very closely a
single case of insanity; who know
nothing of its various forms, nor of
the laws which govern their origin
and progress, are qualified to lay
down general principles touching the

measure of responsiblity which is left
after reason has been driven from her
throne, or reduced to share a divided
empire with the caprices and impul
ses of disease. The results of this
error are painfully exhibited in the
summary of decisions given in the
preceding sections. The loose and
indefinite phraseology where terms
should be precise anu well defined;
the frequent recurrence to the same
point, as if fearful of saying too
much or too little; the conflicting
tests and the qualifications attached
to them, — all this inspires no confi
dence, and consequently, leads to no
uniformity of opinion. It is a truth
which no assumption of superior
wisdom, no blind conservatism can
destroy, that with hardly a single ex
ception, these "rules of law" on the
subject of insanity, are in conflict
with the well settled facts of mental
disease. They would never have
been made, we are quite sure, by per
sons practically acquainted with the
operations of the insane mind. To
such it is well known, that in every
hospital for the insane all patients
capable of distinguishing between
right and wrong, knowing well
enough how to appreciate the nature
and legal consequence of their act
acknowledging the sanctions of reli
gion, and never acting from unstable
impulses but deliberately and shrewd
ly. Is all this to be utterly ignored
in courts of justice?
Sec. 43. The frequency with
which insanity is pleaded in defense
of crime, the magnitude of its conse
quence to the parties concerned and
the perplexity in which the discus
sions it occasions involve the minds

512

EUROPEAN CODES ON INSANITY

Thursday]

MASON

[July 20

of judges and jurors, are ample reas
ons why the law relative to insanity
should be ample and easily under
stood — a result that can only be ob
tained by direct legislative enact
ments. It is time for the legisla
ture to determine what, amid the
mass of conflicting opinions on this
subject shall be the law of the land;
and thus no longer permit- the lives
and liberties of people to be suspend
ed on the dicta of men, whose knowl
edge of insanity was exceedingly im
perfect, and which have not even the
merit of uniformity and consisten
cy. It may be well, therefore, to see
what has been the legislation of vari
ous enlightened nations, in reference
to this subject, inasmuch as it may
furnish valuable hints for our own.
In some the legislator has been
contented with indicating, by some
popular, general phrase, that condi
tion of mind which the judge may
consider as freeing from responsi
bility. The Bavarian code (1813) follows
this course, as well as the eode of
Basle, promulgated in 1835. In the
latter we find the following words:
"Minors and those laboring under
general mania, or hallucinations, can
not be punished as criminals, nor,
generally speaking, can any others be
punished, who have committed a
crime while deprived of the use of
their minds." Art. 2. Very nearly
the same language is used in describ
ing suicides as are exempted from
punishment by reason of mental dis
orders, in the code of Turin (1835),
Art. 6 3, and in the proposed Hanover
ian code. Art. 8 3. In other codes,
general terms alone are used in de

scribing the mental condition of such
as are irresponsible. Thus, in the
Saxon code we find these words:
"Responsibility is annulled in persons
who are deprived of the use of reason
by mental disease." Art. 65. It is
sufficient objection to such enactment
that, in any particular trial, no two
persons could be found to agree re
specting the practical application of
such terms as, deprived of the use of
reason, bereft of understanding, etc.,
and how many judges and juries
would see in the unfortunate mono
maniac before them, who, though
stained with the blood of a fellow
man whom some wild delusion has
prompted him to kill, is still correct
and coherent in his discourse, staid
and dignified in his demeanor, ready
and shrewd in his replies', a being de
prived of the use of his reason, or be
reft of his understanding? We have
seen too often the deplorable failure
of such general terms to protect the
miserable subject of disease, under
the operation of English common law,
to recommend their use to the legisla
ture. In some codes an attempt is
made to avoid this objection to gene
ral terms, by mentioning various
mental diseases as illustrations of the
meaning they are to convey. Thus,
the proposed Wurtemburg code con
tains the following provisions: "An
illegal act is exempt from punishment
if committed in a state of mind
in which the use of reason is
taken away; to this state be
long, chiefly general mania, gene
ral and partial hallucination, en
tire imbecility, and complete confu
sion of the senses or understanding."
Art. 91. In the code of the grand-

EUROPEAN CODES ON INSANITY

513

Thursday]

MASON

[July 20

duchy of Hesse, proposed in 1863, we
find the following provisions: "By
reason of their impaired responsibili
ty, punishment cannot be inflicted on
those who commit fiendish acts in a
state of sleep, of somnambulism, of
general mania, of hallucination, of
imbecility, or of any other mental
disorder, which either takes away all
consciousness respecting the act gen
erally and its relation to penal law, or
in conjunction with some peculiar
bodily condition, irresistibly impels
him while completely unconscious, to
violent acts." Art. 29 in the code of
the grand-duchy of Baden, it is en
acted as follows: "Responsibility is
annulled in that condition, as the
former, for the difficulty will be as
great in the one as in the other, of
settling the exact meaning of the par
ticular term."
Many a case will occur that will
not be unanimously referred to some
one of the above mentioned affec
tions. To avoid the difficulties in
cumbent on the use of such terms,
and to bring the wretched subjects
of mental disease under the protec
tion of the law, without discrimina
tion, in which, either a conciousness
of the criminality of the offense, or
the free will of the offender is taken
away. Art. 65. "To the condition which
annuls responsibility on the strength
of the 65th Art. belong chiefly im
becility, hallucination, general ma
nia, distraction,, and complete confu
sion of the senses or understanding."
Art. 67. Some what similar is the
phraseology used by the code of Lu
cerne, in Switzerland. This method
is liable to precisely, the same objec-
33

tion, the legislator has in some in
stances, made the single fact of the
presence of disease, sufficient to an
nul criminal responsibility. In Liv
ingston's code, it is provided that —
"No act done by a person in a state
of insanity can be punished as an
offense." The revised statutes of the
state of New York contain the same
words. The revised statutes of Arkan
sas provides that a lunatic or insane
persons without lucid intervals, shall
not be found guilty of any crime or
misdemeanor with which he may be
charged. The French penal code is
equally simple. There can be no
crime nor offense if the accused were
in a state of madness at the time of
the act. If we insert after the word
insanity, the following words, "or any
other condition of mind in which the
person is involuntarily deprived of
the consciousness of the true nature
of his act," in order to protect him
from the consequences of acts com
mitted in a state of sleep or somnam
bulism, it may be doubted whether
any other provision would better pro
mote the purpose of justice, than
that of Livingston's code. Under
this law, when strictly applied, if the
existence of insanity is once estab
lished, the responsibility of the party
is taken away, and all nice discus
sions concerning the effect of this or
that kind of degree of mental derange
ment, and the exact measure of reas
on that has been left or taken away,
are thus effectually precluded. It
cannot bedeemed that an insane
person may be actually guilty of a
crimnal act, his insanity being very
partial, and the act not being within
the range of its operation, while by

514

EUROPEAN CODES ON INSANITY

Thursday]

MASON

[July 20

the letter of the law, he m.ust be ac
quitted. The only way of avoiding
this evil, would be to add something
like the following: "Unless, it can
be proved that the act was not the
offspring of the insanity." True, the
fact of insanity would be left, as it
now is, with the jury to decide, but
as they would no longer be puzzled
with metaphysical distinctions be
tween total and partial insanity, and
engaged in nice estimates of the
knowledge of good and evil, of rights
and wrongs, of the power of design
possessed by the accused, their in
quiries would be narrowed down to
the single fact of mental impairment
on a certain point — a duty much less
remote from the train of their ordi
nary habits and pursuits. Thus a
great object would be gained, for the
more that is provided by statute and
the less that is left to judicial discre
tion, the greater is the benefit afford
ed by law.
Sec. 44. As the conclusions of
the jury relative to the existence of
insanity must necessarily be founded
on the testimony afforded by the
parties, it is a subject of the utmost
Importance, by whom and in what
manner this testimony shall be giv
en. If the decision of this point were
purely a matter of facts, the only
duty of the jury would be to see that
they were sufficient for the purpose,
and proceeded from authentic sources
but on the contrary, it is a matter of
inference to be drawn from certain
data, and this is a duty for which
our juries, as at present constituted,
are manifestly unfit. That a body of
men taken promiscuously from the
common walks of life should be re

quired to decide whether or not cer
tain opinions and facts in evidence
prove derangement of mind, or in
other words, to decide a. professional
question of a most delicate nature
and involving some of the highest in
terest of man, is an idea so prepos
terous that one finds it difficult at
first sight to believe that it ever was
seriously entertained. Such however,
is made their business and in the
performance of it, there is but one
alternative for them to follow 
either to receive with the utmost
deference the opinions of those who
have a professional acquaintance with
the subject, or to slight them alto
gether, and rely solely on their own
judgment of the facts. The latter
course has some times been adopt
ed, though no one, probably, person
ally concerned in the issue of the
case would congratulate himself on
their choice, unless especially anxious
to become a victim of ignorance and
obstinacy. But in a large proportion
of cases the medical testimony which
is given in the shape of opinions,
though rather an anomaly in evidence
that courts have been sorely puzzled
at times whether to admit or reject,,
is mostly relied upon, and deter-"
mines the verdict of the jury. It is,
perhaps, of little consequence, who
testifies to a simple fact, that it re
quires only eyes to see, or ears to
hear; but it is all very different with
the delivery of opinions that are to
shape the final decision. As this re
quires an exercise of judgment as
well as observation, there ought to be
some kind of qualification on the part
of those who render such opinions,
not required of one who testifies to

BOARDS OF INSANITY

515

ThursdayJ

MASON— MYERS

[July 20

mere facts. The understanding cer
tainly is, that their habits, pursuits,
and talents have rendered them pe
culiarly competent for this high du
ty, for, in spite of the power of cross-
examinations, these constitute the
only pledge that can be had of its
correct and faithful performance.
But as the law makes no exclusion,
and the witness stand is open to any
one whom the parties may choose to
call, it frequently happens, that the
witness has nothing but his opinions
and the authority they ought to pos
sess. And even when he may have been
preceded by the shadow of a great
reputation, the jury may not know,
nor be able to discover how much of
that reputation is factitious; and in
consequence may be induced to con
fide in opinions which, from a differ
ent quarter, they would have listened
to with feelings of doubt and dis
trust. It is true the law requires
that such opinions should be founded
on facts, but who is to decide whether
the fact is a sufficient foundation for
the opinion, or, indeed, has any rela
tion to it at all?"
In each of these states as well as
in France is established a physician
to whom the custody of the individu
al is committed and they determine
the question of his insanity, and it is
not left for this uncertain determi
nation by a jury who are not skilled
in this matter. I appreciate the fact
that a man may be insane when the
act was committed and sane the day
he is put upon trial, but how much
greater would be the satisfaction to
civil society if the individual who
sets up this plea was committed to
the custody of those who had charge

of the insane if you please, with elev
en other learned physicians, there to
be retained a sufficient length of time
for them to satisfy their scientific
minds whether he was insane or not.
I move this amendment for several
reasons. I have been requested to do
so by the medical society of this
state, I have been requested to do so
by several distinguished medical men
of this state. Second, it meets with
my own judgment and approval,
Lastly, because I think society would
be more secure, crime more easily de
tected and the specious plea of in
sanity less frequently interposed.
Mr. MYERS. Mr. Chairman. I
had flattered myself we would be
able to get the Bill of Rights through
without having any more radical
amendments offered, least of all by the
honorable Chairman of the commit
tee who had it in charge, and who
has presented to this convention a
bill that has received less amend
ments than any other of which I have
any knowledge. I did not suppose
that at the heel of its passage at this
late day, that a motion of this im
portance would be thrust upon the
Convention, that no debate would be
provoked which had not been dis
posed of by the Committee of the
Whole. Now this is a very great in
novation upon the practice of courts,
establishing a new court for the trial
of individuals charged with crimes,
supposed to be insane, that they eith
er have an ordinary affliction of lu
nacy, or what has recently been dis
covered in New York as kleptomania,
a partial degree of lunacy to get some
murderer from the gallows. I do not
think the records can furnish a

516

COURTS OF INSANITY

Thursday 1

MYERS— GRAY

[July 20-

case where an insane man has been
executed for a capital offense, but I
believe the records will show that
many murderers who were sane have
been dragged from the gallows on the
score of insanity. Mr. Chairman, I
am opposed to an increase of courts.
The whole jurisprudence of England
is done by about twenty-five or thir
ty judges, and we are told that the
roll of her drum is heard in the four
quarters of the earth, and that the
sun never sets on her vast possessions
yet that great Empire, England, has
only about twenty-five or thirty
judges to transact its business, and
her courts have neither been increas
ed or diminished to a time "when the
memory of man runneth not to the
contrary." When William the Con
queror came, when the Battle of the
Boyne was fought in Ireland, when
the bloody Jeffrey sat upon the bench
down to the present day there have

trial of a new disability that will pre
vent a man from atoning to the laws
of his country for the commission of
crimes. I am not in favor of opening
a door for their escape. Let it be
referred to three gentlemen of the
medical profession, let them investi
gate that individual philosophically
and I believe truly.
Mr. GRAY. Mr. Chairman. I rise
not for the purpose of debating this
question which has been suddenly
sprung, but rather to call the atten
tion of the Convention to a few facts
or principles, whichever they may be
called. It seems to me to create a
court for the determination of this
particular issue which may arise in
criminal cases is in fact, curtailing
the right of trial by jury, qualifying
that right which has been handed
down to us from time immemorial.
The principles upon which the right
of trial by jury rests,, as I under-

ganized courts of that great Em
pire. Why can we not pursue the
same steadfast old practice of law in
the courts that we have? Why don't
they do as they did in New York in
the case of Ruloff the learned mur
derer? Why don't they pursue the
course adopted in Massachusetts
when Prof. Webster, another learned
murderer, assumed the protecting
cloak of lunacy, for the brutal mur
der of Dr. Parker. I believe the emi
nent and learned gentleman who
brought this forward did so in the
interest of humanity, and I do not
apply these remarks to him as a re
flection upon his judgment, but I
differ with him as to the propriety
of instituting a new court for the

been no additions to the regularly or- ¦ stand it, is that every man shall be
tried by his peers, hence he' is not
to be tried by a learned lawyer pre
siding upon the bench, nor by a num
ber of them, nor should he in pursu
ance of that principle be tried as to
any one of these issues by a learned
physician. The jurors have the as
sistance of experts upon every
branch. If questions of insanity
rise, they may and do have the as
sistance of experts, the learned phy
sicians upon that branch, they have
the assistance of the court itself up
on every question that arises and
more especially, upon questions of
law. Now then if the jury, with the
assistance they have, is incompetent
to determine upon the issue of in
sanity, so they are incompetent to de-

BOARDS OF INSANITY

517

Thursday]

A BBOTT-TOWLE-GRIGG S

[July 20

termine upon an ordinary question of
law that may arise in the case. Mr.
President, I have said enough to call
to the recollection of the members of
this Convention this particular ques
tion, and therefore I am disposed to
leave it. The question has been
sprung upon us so suddenly that I
am unprepared. But I hope gentle
men will stop and reflect before they
make this innovation.
Mr. ABBOTT. I rather hope this
thing will prevail because no matter
how frivolous a case I have I inter
pose a plea of insanity and get it.
Mr. TOWLE. I hardly know
whether to vote for this amendment
or not. Why, it seems to me that
the views of the gentleman from
Dodge (Mr. Gray) should not deter
us from voting as we please. When
a plea of insanity is interposed we
may have the most scientific men
from all over the state; men who
have made it a life-long study; men
who are familiar with every phase
of insanity. Well, they are congre
gated together, they take careful at
tention and make a direct enquiry
into the particulars of this case; and
if they find that the person who is
accused is not insane, he is thrown
back to tho court again and tried by
an ordinary jury of twelve men.
Many criminals in late years, have
escaped the meshes of the law under
the plea of insanity. I believe, Mr.
Chairman, that this is an innova
tion; but it is not for the best. It
is not making a new court as the gen
tleman from Douglas says, because
it will be tried in our district courts
and other courts already established.
But the jury will be composed of men

who are calculated and presume to
know every particular, and every
phase of insanity. It is in fact, giv
ing the prisoner another chance of
his life, and giving him trial before a
jury. Mr. MANDERSON. Will the gen
tleman inform us whether he is for
or against the amendment?
Mr. TOWLE. It is not particularly
necessary that I should say that if
the tendency of my remarks was fa
vorable to the amendment I naturally
should be in favor myself.
Mr. GRIGGS. Will the gentleman
from Otoe (Mr. Mason) answer one
question? Will the jury of physi
cians supplant the ordinary jury, or
would they, after the trial by this ju
ry, go back to a trial by a common
jury? Mr. MASON. If the article is
adopted without the amendment. If
the amendment prevail, the same rule
would apply unless the legislature in
their wisdom, should see fit to estab
lish a board for a determination. It
would be a latent power, invested in '
them by virtue of the constitution.
I do not urge this upon the conven
tion. That is, I do not wish to in
fluence the judgment of anybody be
cause it is an innovation. I offered
this amendment out of respect for the
teaching and ability of the gentleman
who proposed it and sent it here with
the authorities, but few of which I
have submitted on this question. And
while I think it is a step in the right
direction and this plea of insanity
should always be determined by skill
ed physicians, I am like my friend
Mr. Myers, from Douglas, generally
opposed to change — rather abiding

518

JURIES— SEARCH WARRANTS

Thursday]

MASON— ESTABROOK— MYERS

[July 20

by the evils that are than taking the
advantage of fleeing to evils we
know not of. It is sent here from a
very respectable authority. While I
think it would be well, yet I have
doubts whether it would work well
in practice.
Mr. ESTABROOK. I shall vote
with the gentleman from Otoe then,
simply for the reason that it is new.
Mr. MYERS. I now rise to the
previous question. I move the pre
vious question.
The motion was agreed to.
The PRESIDENT. The question
now is upon the adoption of the
amendment of the gentleman from
Otoe. The. ayes and nays were demanded
and the secretary proceeded to call
the roll.
The President announced the re
sult, — Ayes, 18; noes, 29; as follows:

Thomas, Weaver,
Thummel, Wilson,
Vifquain, , Woolworth.-
Wakeley,

—29.

Absent and Not Voting.

Grenell Parker,
Hinman, Tisdel.

Mr,

Leave of Absence.
MANDERSON. Mr. President.

Campbell,
Cassell,Estabrook,Gibbs,Granger,
Hascall, Kilburn, Mason, Moore,

Abbott,
Ballard,
Boyd,
Curtis,
Eaton,Gray,
Griggs,
Kenaston,Kirkpatrick,
Lake, Ley,

AYES Newsom, Philpott,
Robinson,
Stevenson,Stewart,
Sprague,
S piece-)
Shaff,
Towle. — 18.
NAYS Lyon,
Majors, Manderson,
Maxwell,
Myers,
McCann,
Neligh, Parchin,
Price,
Reynolds',Scofield,

If I may be permitted, I will state
that I promised Mr. Tisdel I would
ask leave of absence until Monday
next. Leave granted.
Special Order Resumed.
The PRESIDENT. The question
now is upon the adoption of the fifth
section. The Secretary read the next section
as follows:
Sec. 5. The right of trial by jury
as heretofore enjoyed, shall remain
inviolate; but the trial of civil cases
and misdemeanors before justices of
the peace and inferior magistrates by
a jury of less than 12 men, may be
authorized by law.
Section five adopted.
The Secretary read the next section
as follows:
Sec. 6. The right of the people
to be secure in their persons, houses,
papers and effects against unreason
able searches and seizures shall not
be violated, and no warrant shall is
sue without probable cause, support
ed by affidavit, particularly describ
ing the place to be searched and the
persons or things to be seized.
Section six adopted.
The Secretary read the next section
as follows:
Sec. 7. All persons shall be bail
able by sufficient securities, except for

BAIL— CRIMINAL PUNISHMENT

519

Thursday]

ROBINSON

[July 20

treason and murder, where the proof
is evident or the presufnption great;
and the privilege of the writ of ha
beas corpus shall not be suspended,
unless when in case of rebellion or
invasion, the public safety may re
quire it.
Section seven adopted.
The Secretary read the next section
as follows:
Sec. 8. No person shall be held
to answer for criminal offense, except
in cases in which the punishment is
by fine, or imprisonment otherwise
than in the penitentiary, in
cases of impeachment, and in cases
arising in the army and navy, or in
the militia when in actual service in
time of war or public danger unless
on a presentment of indictment of a
grand jury on information of a public
prosecutor, and provision shall be
made by law for the empanelling of
grand juries whenever the respective
courts or judges shall order.
Section eight adopted.
The Secretary read the next section
as follows:
Sec. 9. In all criminal prosecu
tions the accused shall have the right
to appear and defend in person and
hy counsel, to demand the nature and
cause of the accusation, and to have
a copy thereof; to meet the witnesses
face to face, and to have process to
compel the attendance of witnesses in
his behalf, and a speedy public trial
by an impartial jury of the county or
district in which the offense is alleged
to have been committed.
Section nine adopted.
The Secretary read the next section
as follows:
Sec. 10. No person shall be com
pelled in any criminal case to give
evidence against himself, or twice
put in jeopardy for the same offense.
Mr. SPRAGUE. Mr. President. I
move to amend by inserting the word
"be" before the word "twice," in the

second line.
Amendment agreed to and the sec
tion as amended adopted.
The Secretary read the next section
as follows:
Sec. 11. All penalties shall be pro
portioned to the nature of the of
fense; and no conviction shall work
corruption of blood or forfeiture of
estate; nor shall any person be trans
ported out of the state for any offense
committed within the same; nor shall
cruel and unusual punishment be in
flicted. Mr. ROBINSON. Mr. President. I
move to amend the section by mak
ing the word "punishment" in the 4th
line "punishments".
Amendment agreed to, and the sec
tion as amended adopted.
The Secretary read the next section
as follows:
Sec. 12. No person shall be im
prisoned for debt, arising out of, or
founded on a contract express or im
plied, except in cases where there is
strong presumption of fraud.
Section twelve adopted.
The Secretary read the next section
as follows:
Sec. 13. Private property shall
ever be held inviolate, but subservent
to the public welfare. When taken,
or damaged in time of war, or other
public exigency imperatively re
quiring its immediate seizure, or for
the purpose of making or repairing
roads which shall be open to the pub
lic without charge, a compensation
shall be made to the owners in money
and in all other cases a compensa
tion shall be first made in money or
first secured by a deposit of money.
Such compensation shall in every case
be without deduction for benefits to
any property of the owner and when
not made by the state shall be assess
ed by jury in such manner as shall be
prescribed by law. The fee of lands
taken for railroad tracks without the

520

DAMAGE— COMPEN SATION

Thursday]

LAKE— ROBINSON-MAS ON

[July 20

consent of the owner thereof shall re
main in such owners subject to the
-use for which it was taken.
Mr. LAKE. Mr. President. I move
to amend Sec. 13, by inserting in
the phrase "without deductions for
¦benefits" the word "general" before
the word "benefits."
The PRESIDENT. Gentlemen,
The question is upon the amendment.
The ayes and nays being demanded
the Secretary proceeded to call the
roll. The President announced the re
sult. Ayes, 16; nays, 30, as follows:
AYES.

Boyd,

Myers, —

Estabrook,

Neligh.

Griggs,

Reynolds,

Hascall,

Spiece,

Lake,

Stewart,

Ley,

Thummel,

Lyon,

Thomas,

Manderson,

Wakeley. — 16.

NAYS,

Abbott,

Maxwell,

Ballard,

Moore,

Campbell,

Newsom,

Cassell,

Philpott,

Curtis,

Price,

Eaton,

Rob nson,

Gibbs,

Scofield,

Granger,

Shaft,

Grenell,

Sprague,

Gray,

Stevenson,

Kenaston,

Towle,

Kilburn.

Vifquain,

Kirkpatrick,

Weaver,

McCann,

Wilson,

Majors,

Woolworth. — 30.

ABSENT

NOT VOTING.

Hinman,

Parker,

Mason,

Tisdel,

Parchin,

Mr. President. — 6

So the amendment was not agreed
to. Mr. ROBINSON. Mr. President. I
move to strike out the words "shall
be," in the fourth line, and insert the

word "are."
Mr. HASCALL. Mr. President. I am
satisfied that it is right as it is. It
relates to roads which, in the future
shall be opened.
The PRESIDENT. The question is
upon the amendment of the gentle
man from Lancaster (Mr. Robinson.)
Mr. GRIGGS. Mr. President. I
think this relates to roads which shall
be opened in the future. I think it la
right. Mr. MASON. Mr. President. I
have just returned to the chamber,
having been absent when the last
vote was taken, in which the ayes
and nays were demanded. I desire
to vote against the word "general"
being inserted before the word "bene
fits" in the section last read.
('"Can't vote. Can't vote!")
The PRESIDENT. It seems the
gentleman is not granted leave. The
question is on the amendment offered
by the gentleman from Lancaster,
(Mr. Robinson.)
The amendment was not agreed to.
The PRESIDENT. The question
is on the adoption of section thir
teen. Section thirteen was adopted.
The Secretary read the next section
as follows: '
Sec. 14. No ex post facto law, or
law impairing the obligation of con
tracts, or making any irrevocable
grant of special privileges or immu
nities, shall be passed.
The PRESIDENT. The question is
on the adoption of section fourteen.
Section fourteen was adopted.
The Secretary read the next section
as follows:

BILL OF RIGHTS

>'21

Thursday]

PRESIDENT- STRICKLAND— WAKELEY

July 20

Sec. 15. The military shall be in
-strict subordination to the civil pow
er. The PRESIDENT. The question is
on the adoption of section fifteen.
Section fifteen was adopted.
The Secretary read the next section
as follows:
Sec. 16. No soldier shall in time of
peace be quartered in any house with
out the consent of the owner; nor in
time of war except in the manner pre
scribed by law.
The PRESIDENT. The question is
upon the adoption of section sixteen.
Section sixteen was adopted.
The Secretary read the next section
-as follows:
Sec. 17. The people have a right
to assemble in a peaceable manner to
consult for the common good, to
make known their opinions to their
representatives, and to apply for a re
dress of grievances.
The PRESIDENT. The question is
-on the adoption of section seventeen.
Section seventeen was adopted.
The Secretary read the next section
;as follows:
Sec. 18. All elections shall be free
and there shall be no hindrance or
impediment to the right of a quali
fied voter to exercise the elective
franchise. The PRESIDENT. The question is
'On the adoption of section eighteen.
Section eighteen was adopted.
The Secretary read the next section
-as follows:
Sec. 19. Treason against the state
shall consist only of levying war
-against the state, or in adhering to its
enemies, giving them aid and comfort.
No person shall be convicted of treas
on unless on the testimony of two
witnessed of the same overt act, or on

confession in open court.
The PRESIDENT. The question is
on the adoption of section nineteen.
Section nineteen was adopted.
The Secretary read the next section
as follows:
Sec. 20. The writ of error shall
be a writ of right in all cases of fel
ony, and in all capital cases shall ope
rate as a supersedes to stay the
execution of the sentence of death un
til the further order of the supreme
court in the premises.
The PRESIDENT. The question is
on the adoption of section twenty.
Section twenty was adopted.
The Secretary read the next section
as follows:
Sec. 21. The privilege of the debt
or to enjoy the necessary comforts of
life shall be recognized by wholesome
laws, exempting a reasonable amount
of property from seizure or sale for
the payment of any debts or liability.
Mr. WAKELEY. Mr. President. I
move to amend this section by strik
ing out the letter "s" from the word
"debts." The Convention was divided and
the amendment was agreed to.
The PRESIDENT. The question is
on the adoption of section twenty-one
as amended.
Section twenty-one was adopted.
The Secretary read the next section
as follows:
Sec. 2 2. Aliens who are, or may
hereafter become bonafide residents
of this state, shall enjoy the same
rights in respect to possession, enjoy
ment and inheritance of property as
native born citizens.
The PRESIDENT. The question is
on the adoption of section twenty-
two. Section twenty-two was adopted.

522

GOD IN THE CONSTITUTION

Thursday]

PRESIDENT-STRICKLAND-GRIGGS

[July 20--'

The Secretary read the next section
as follows:
Sec. 2 3. All courts shall be open
and every person for an injury done
him in his land, goods, person or repu
tation shall have remedy by due
course of law, and justice adminis
tered without denial or delay.
The PRESIDENT. The question is
upon the adoption of section twenty-
three. Section twenty-three was adopted.
The Secretary read the next section
as follows:
Sec. 2 4. A frequent recurrence
to the fundamental principles of civ
il government is absolutely neces
sary to preserve the blessings of
liberty. The PRESIDENT. The question is
on the adoption of section twenty-
four. Section twenty-four was adopted.
The Secretary read the next section
as follows:
Sec. 25. The powers of the govern
ment of this state are divided into
three distinct departments, the leg
islative, executive and judicial; and
no person or collection of persons,
being one of these departments, shall
exercise any power properly belong
ing to either of the others, except as
hereinafter expressly directed or per
mitted. The PRESIDENT. The question is
on the adoption of section twenty-
five. Section twenty-five was adopted.
The Secretary read the next section
as follows:
Sec. 26. This enumeration of
rights shall not be construed to im
pair or deny others retained by the
people, and all powers not herein

delegated remain with the people.
The PRESIDENT. The question is^
upon the adoption of section twenty-
six. Section twenty-six was adopted.
The Secretary read the preamble-
as follows: PREAMBLE.
We. the people of the state of Ne
braska — grateful to Almighty God
for the civil, political and religious
liberty which He hath so long permit
ted us to enjoy, and looking to Him
for a blessing upon our endeavor to-
secure and transmit the same unim
paired to succeeding generations —
in order to form a more perfect gov
ernment, establish justice, insure do
mestic tranquility, provide for the
common defense, promote the general
welfare and secure the blessings of
liberty to ourselves and posterity, do-
odain and establish this constitution
for the state of Nebraska.
Mr. ROBINSON. Mr. President, r
move to strike out all the parenthesis,.
that is, commencing with the word'
"grateful" to and including the word
"generations." It is a mere repeti
tion and I desire to have it struck
out notwithstanding the example of"
the great state of Illinois.
Mr. GRIGGS. Mr. President. I"
am not in favor of striking that out.
When the people of Nebraska cannot
be thankful to Almighty God for his-
blessings, I think they are pretty
hard up.
The PRESIDENT. The question
is on the motion to strike out.
The "ayes" and "nays" were de
manded, the vote was taken and the-
result was announced. — "Ayes," 2 ;_
"nays," 44, as follows:

FUTURE AMENDMENTS

523

Thursday]

GRIGGS-STEY

AYES.

Estabrook,

Robinson,

NAYS.

Abbott,

Moore,

Ballard,

Myers,

Boyd,

Neligh,

Campbell,

Newsom,

Cassell

Parchin,

Curtis,

Philpott,

Eaton,

Price,

Gibbs,

Reynolds,

Granger,

Scofield,

Gray

Shaft,

Griggs,

Sprague,

Hascall,

Spiece,

Kenaston,

Stevenson,

Kilburn,

Stewart,

Kirkpatrick,

Thummel,

Lake,

Thomas,

Ley,

Towle,

Lyon,

Vifquain,

McCann,

Wakeley,

Mason,

Weaver,

Manderson,

Wilson,

Maxwell,

Woolworth. — 44.

[July 20

ABSENT OR NOT VOTING.
Grenell, Parker,
Hinman, Tisdel,
Majors, Mr. President. — 6.
Mr. GRIGGS. Mr. President. I
move to insert "a" before the word
"blessing" in fourth line.
The motion was agreed to.
The PRESIDENT. The question is
on the adoption of the Preamble.
The Preamble was agreed to.
Mr. STEWART. Mr. President.
I move the article be engrossed for a
third reading.
The motion was agreed to.
Mr. MAXWELL. I move that the
Convention now go into Committee of
the Whole on the report of the Judici
ary committee.
The PRESIDENT. The bill on
Future Amendments has been en

grossed and is ready to be passed.
Mr. MAXWELL. I will withdraw
my motion.
The secretary read the article as
follows: ARTICLE.
Sec. 1. Any amendment or amend
ments to this constitution may be
proposed in the senate or house of
representatives and if the same shall
be agreed to by a majority of the
members elected to each house, such
proposed amendment or amendment?
shall be entered upon their journals
with the yeas and nays taken thereon,
and the Secretary of State shall cause
the same to be published weekly for
three months immedUleiv preceding
next election in at least one newspa
per in every county in which a news
paper shall be published, and if in
the legislature next afterwards chos
en such proposed amendment or
amendments shall be agreed to by a
majority of the members elected to
each house, the Secretary of State
shall cause the same again to be
published for the time and in the
manner aforesaid, and such proposed
amendment or amendments shall be
submitted to the electors of this
state for adoption or rejection at
the next election for members of the
legislature, in such manner as may
be prescribed by law, and if the peo
ple shall approve and ratify such
amendment or amendments by a ma
jority of qualified voters of this state
voting thereon, such amendment or
amendments shall become a part of
the constitution; provided, that if
more than one amendment be submit
ted they shall be submitted in such
manner and form that the people may
vote for or against each amendment
separately and distinctly.
Sec. 2. Whenever two-thirds of
the members elected to each house
of the legislature shall by a vote en-
tereduponthe journals thereof concur
that p convention is necessary to re
vise alter or amend the constitution,

-524

ENROLLING AND ENGROSSING

Thursday 1

ESTABROOK— McCANN— MASON

[July 20

the question shall be submitted to the
electors at the next general election.
If a majority voting thereon at the
election vote for a convention, the
legislature shall at the next session
provide for a convention and shall
in the act calling the convention des
ignate the day, hour and place of its
meeting, fix the pay of its members
and officers, and provide for the pay
ment of the same together with the
expenses necessarily incurred by the
convention in the performance of its
duties. The . law submitting the question
shall be published for the time and in
the manner provided in the preceding
section as to proposed amendments.
Mr. ROBINSON. Mr. President. I
move to strike out the word "the"
"before "state" in fourth line.
Mr. ESTABROOK. Mr. President.
I object for one reason, that is for the
purpose of making a motion that this
lay on the table for the present until
we can have a committee on enrolled
bills. No one knows whether it is
correctly enrolled or not.
Mr. McCANN. Mr. President.
This committee on enrolled bills was
intentionally left out. In the Illinois
convention, bills were referred to the
Committee on Revision and Adjust
ment. I therefore move that the
engrossing and enrolling be referred
to that committee.
The PRESIDENT. The bill hav
ing been engrossed and read a third
time, the question is on its passage.
Mr. MASON. I suggest the import
ance of having an engrossing and en
rolling committee. I move to raise
such committee, and I would just say
that I do not want to be on that com
mittee. I wish it could consist of
printers and proof readers so far as
there are any such in the convention,

and charge them with the special
duty of seeing that all amendments
made in the committee of the whole
are properly engrossed; and I have
found, in legislative bodies that this
class of individuals will detect an er
ror quicker than I can myself. There
fore I move that when the President
raise this committee he appoint this
class of men. I would say three.
Mr. MYERS. Mr. President. I
call for the order of the day. Unless
gentlemen go on regularly, we never
will get through. The motion of the
gentleman from Otoe, I understand,
is to lay this bill on one side in order
to appoint the committee.
Mr. MASON. It is proper now to
enroll or engross this bill before pass
ing. The PRESIDENT. It has been en
rolled and is on its passage.
Mr. MASON. Then I would insist.
Mr. MYERS. Mr. President. I
make a]. motion that I think will reach
the gentleman's object. That this
bill be laid aside now for the pur
pose of allowing the gentleman from
Otoe to make his motion for the ap
pointment ofj a committee on enroll
ment. Mr. GRIGGS. It is my under
standing that this bill has already
been engrossed, and that it could not
now go to an enrolling and engross
ing committee, and I do not see how
that committee could have anything
to do with it.
Mr. MASON. Who knows it? I
can't say it is properly engrossed. I
want the committee to take this re
port and carefully compare with the
amendments of the committee of the

LEGISLATIVE ARTICLE

525

Thursday]

MASON— ESTABROOK— MYERS

[July 20-

whole. The motion of Mr. Myers was
agreed to.
Mr. MASON. Now I move that the
chair appoint a standing committee
to be called "The Engrossing and
Comparing Committee," to consist of
three. Mr. ESTABROOK. I would sug
gest that the committee be called En
grossing and Enrollment Committee.
Mr. MASON. I accept that.
The motion was agreed to.
The PRESIDENT. The question is
upon referring this Article to the
committee named.
The motion was agreed to.
Committee of the Whole.
Mr. MYERS. Mr. President. I
move we now go into committee of
the whole to consider the report of
the Legislative committee.
The motion was agreed to.
So the convention went into the
committee of the whole upon the
Legislative Article, with Mr. Sco
field in the chair. ARTICLE.
Legislative Authority and Election.
Sec. 1. The legislative authority
of the state shall be vested in the
senate and house of representatives,
both to be elected by the people. The
senate shall not exceed thirty-three
senators, nor the house of representa
tives more than one hundred mem
bers. The representatives shall be
chosen annually, by the citizens of
each county respectively, on the Tues
day succeeding the first Monday in
November. Senators shall be elected
for the term of three years, and rep

resentatives for the term of one year
from the day next after their general
election. Enacting Clause.
Sec. 2. The enacting clause of all
bills shall be: "Be it enacted by the
legislature of the state of Nebraska;"
and no law shall be enacted except
by bill.
No bill shall be passed unless by
the assent of a majority of all mem
bers elected to each branch of the
legislature, and the question upon the
final passage shall be taken immedi
ately upon its last reading, and the
yeas and nays entered upon the
journal. No bill which may be passed by the
legislature shall embrace more than
one subject, and that shall be ex
pressed plainly and clearly in the
title. Enumeration and Apportionment.
Sec. 3. An enumeration of the in
habitants of the state shall be taken
under the direction of the legislature
in the year one thousand eight hun
dred and seventy-five, and at the end
of every ten years thereafter, and the
districts shall be so altered by the
legislature at the first session after
the return of every enumeration that
each senatorial district shall contain.
as nearly as may be, an equal number
of inhabitants excluding aliens and
Indians not taxed, and shall remain
unaltered until the return of another
enumeration, and shall at all times
consist of contiguous territory, and
no county shall be divided in the for
mation of a senate district.
The members of the house of rep
resentatives shall be apportioned
among the several counties of the
state by the legislature, as nearly as
may be, according to the number of
their respective inhabitants, exclud
ing aliens and Indians not taxed, and
shall be chosen by districts.
The number of representatives
shall, at the several periods of mak-

526

LEGISLATIVE ARTICLE

Thursday]

[July 20

ing such enumeration, be fixed by the
legislature and apportioned among
the several counties according to the
number of inhabitants in each.
Election of Senators.
Sec. 4. The senators shall be chos
en for three years, by the citizens of
the several senatorial districts, at
the same time, in the same manner,
and at the same place, where they
shall vote for representatives.
Sec. 5. The number of senators
shall, at the several periods of mak
ing the enumeration before mention
ed, be fixed by the legislature, and
apportioned among the districts
formed as hereinafter directed, ac
cording to the number of inhabitants
in each as shown by the United States
or state enumeration, and shall never
be less than one-fourth nor greater
than one-third of the number of rep
resentatives. Sec. 6. The senators shall be chos
en in districts to be formed by the
legislature, each district containing
such a number of inhabitants as shall
be entitled to elect not more than
three senators. When a district shall
be composed of two or more coun
ties they shall be adjoining. No
city or county shall be divided in
forming a district.
Who are Eligible.
Sec. 7. No person shall be a sena
tor who shall not have attained the
age of twenty-five years, and have
been a citizen and inhabitant of the
state three years next before his elec
tion, and the last year thereof an in
habitant of the district for which he
shall be chosen, unless he shall have
been absent on the public business of
the United States or of this state, and
no person elected as aforesaid, shall
hold said office after he shall have
removed from such district.
Senatorial Glasses.
Sec. 8. Immediately after the
senators shall be assembled in conse

quence of the first election, subse
quent to the first enumeration, they
shall be divided by lot, as equally as
may be, into three classes. The seats
of the senators of the first class shall
be vacated at the expiration of the
first year; of the second class at the
expiration) of the second year; and of
the third class at the expiration of the
third year. Time of Meeting.
Sec. 9. The general assembly
shall meet in the capitol on the first
Tuesday of January in every year,
unless sooner convened by the gov
ernor.
Legislative Officers and Contested
Elections.
Sec. 10. Each house shall choose its
president and speaker* and other of
ficers. Each house shall judge of the
qualifications of its members. Con
tested elections shall be determined
by a committee to be selected, formed
and regulated in such manner as shall
be directed by law. A majority of
each house shall constitute a quo
rum to do business,; but a less num
ber may adjourn from day to day
and be authorized by law to compel
the attendance of absent members, in
such manner and under such penal
ties as may be provided.
Disqualification of Senators and Mem
bers.
Sec. 11. No person being a mem
ber of congress, or holding any judici
al or military office under the United
States, shall hold a seat in the legis
lature. If any person shall, after his elec
tion as a member of the legislature,
be elected to congress, or appointed
to any office civil, or military, under
the government of the United States,
his acceptance thereof shall vacate
his seat. Disqualification for Office.
Sec. 12. No member of the legis-

LEGISLATIVE ARTICLE

527

Thursday]

[July 20

lature shall receive any civil appoint
ment within this state, or to the senate
•of the United States, from the governor
the governor and senate, or from the
legislature, during the time for which
he shall have been elected; and all
such appointments, and all votes giv
en for any such member for any such
office or appointment, shall be void.
Pay and Mileage of Members of the
Legislature.
Sec. 13. The members of the leg
islature shall receive for their ser
vices a sum not exceeding four dol
lars per dayi from the commencement
of the session; but such pay shall not
exceed in the aggregate four hundred
dollars for per diem allowance, ex
cept in proceedings for impeachment.
When convened in extra session by
the governor they shall receive four
dollars per day. They shall receive
the sum of one dollar for every ten
miles they shall travel in going to
and returning from the state capital,
on the most usual route.
The president of the senate and
speaker of the house of representa
tives shall, in virtue of their offices,
receive an additional compensation
equal to one-third of their per diem
allowance respectively.
Persons Ineligible as Members of the
Legislature.
Sec. 14. No person liable for pub
lic monies unaccounted for shall be
eligible to a seat in either house of
the legislature, or to any office of
profit or trust until he shall have ac
counted for and paid over all sums
for which he may have been liable.
Crime and Disqualification.
Sec. 15. No person shall be eli
gible to any office of profit or trust,
nor shall be permitted to exercise
the right of suffrage within this state,
who shall have been convicted of
bribery, perjury, or other infamous
crime.

Impeachment.
Sec. 16. The house of representa
tives shall have the sole power of
impeachment, but a majority of all
the members elected must concur
therein. All impeachments shall be tried by
the senate, and when sitting for that
purpose, the senators shall be upon
oath or affirmation to do justice ac
cording to law and evidence.
When the governor of the state is
tried the chief justice shall preside.
No person shall be convicted with
out the concurrence of two-thirds of
the senators elected, but judgment in
cases of impeachment shall not ex
tend further than to removal from
office and disqualification to hold and
enjoy any office of honor, profit, or
trust under this state; but the im
peached shall nevertheless be liable
to indictment and punishment accord
ing to law. No officer shall exercise
his office after he shall have been im
peached, until he shall have been ac
quitted. Sec. 17. The governor, secretary
of state, auditor, treasurer, judges
of the supreme and districts courts,
and all other elective state officers
shall be liable to impeachment for
any misdemeanor in office.
Oath of Office.
Sec. 18. Members of the legisla
ture, and all other officers elective
and judicial, except such inferior offi
cers as may be by law exempted,
shall, before they enter on the dut
ies of their respective offices, take
and subscribe the following oath or
affirmation: "I do solemnly swear (or affirm,
as the case may be) that I will sup
port the constitution of the United
States, and the constitution of the
state of Nebraska, and that I will
faithfully discharge the duties of the
office of  with fidelity, and ac
cording to the best of my ability."

528

LEGISLATIVE ARTICLE

Thursday]

[July 20

Bills for Governor and Objections.
Sec. 19. Every bill which shall
have passed both houses shall be pre
sented to the governor. If he ap-
urovp hn shall sien it, but if he shall
not approve he shall return it, with
his objections, to the house in which
it shall have originated, who shall
enter the objections at large upon
their journal, and proceed to recon
sider it. If, after such re-considera
tion, two-thirds of that house shall
agree to pass tho bill, it shall be sent,
with the objections, to the other
house, by which likewise; it shall be
reconsidered, and if approved by two-
thirds of that house, it shall become
a law; but in such cases the votes of
both houses shall be determined by
yeas and nays, and the names of the
persons voting for or against the bill
shall be entered on the journals of
each houso respectively. If any bill
shall not be returned by the governor
within ten days (Sundays excepted)
after it shall have been presented to
him, it shall be a law in like man
ner as if he had signed it unless the
legislature, by their adjournment.
prevented its return, in which case
it shall be a law unless sent back
within three days after their next
meeting. Sec. 20. Every order, resolution
or vote to which the concurrence of
both houses may be necessary (ex
cept on a question of adjournment)
shall be presented to the governor,
and before it shall take effect be ap
proved by him, or, being disapproved,
shall be re-passed by two thirds of
both houses, according to tho rules
and limitations prescribed in case of
a bill. Sec. 21. Any bill may originate
in either house of the legislature, ex
cept bills appropriating money, which
shall originate only in the house of
representatives, and all bills passed
by one house may be amended by the
other.
Saltlands Vested Forever in the State.
Sec. 22. The legislature shall

never sell or dispose of the saline
lands belonging to this state, but may
authorize the purchase of contiguous
lands thereto by authority of law, as
may be necessary for the convenience
and interest of the state.
Quorum for Each House.
Sec. 2 3. A majority of each
house shall constitute a quorum to
do business, (except in cases of im
peachment.) Each house shall de
termine the rules of its own proceed
ings, and be the judges of the elec
tions, returns and qualifications of
its own members and shall choose its
own officers.
Senate and House May Expel.
Sec. 2 4. Each house may deter
mine the rules of its proceedings,
punish its members for disorderly be
havior, and with the concurrence of
two-thirds, expel a member, but not
a second time for the same cause;
and shall have all other powers neces
sary for a branch of the legislature
of a free state.
Journal and Manner of Voting.
Sec. 2 5. Each house shall keep a
journal of its proceedings, and pub
lish them, (except such parts as may
require secrecy) and the yeas and
nays of the members on any question
shall, at the desire of any two of them
be entered on the journal. All votes
in either house shall be "viva voce."
The doors of each house, and com
mittees of the whole, shall be open,
unless when the business shall he
such as ought to be kept secret
Neither house shall, without the con
sent of the other, adjourn for more
than three days.
Freedom of Debate.
Sec. 2 6. For any speech or debate
in either house of the legislature the
members shall not be questioned in
any other place.
Sec. 27. The legislature shall pro-

LEGISLATIVE ARTICLE

529

Thursday]

[July 20

vide by law that all stationery re
quired for the use of the state, and
all printing authorized and required
by them, to be done for their use or
for the state, shall be let by contract
to the lowest bidder; but the legis
lature may establish a maximum
price. No member of the legislature or
other state officer shall be interested,
either directly or indirectly, in any
such contract.
Sec. 28. The mode of organiz
ing the house of representatives at
the commencement of each regular
session, shall be prescribed by law.
Sec. 2 9. Each bill and concurrent
resolution, shall be read at large in
three different days in each house,
and the bill, and all amendments
thereto, shall be printed before the
vote is taken on the final passage.
The presiding officer of each house,
shall sign, in the presence of the
house over which he presides^ while
the same is in session, and capable of
transacting business, all bills and
concurrent resolutions passed by the
legislature. Indebtedness due the State.
Sec. 30. The legislature shall have
no power to release or relinquish in
whole or in part, the indebtedness,
liability or obligation of any corporar
tion or individual to this state, or to
any municipal corporation therein.
Sec. 31. Any person holding of
fice under or by virtue of the laws of
the state, who, except in payment of
salary, fees, or perquisites, receives,
directly or indirectly, anything what
ever of value, or of personal advant
age, or the promise thereof, for per
forming or omitting to perform any
official act or, with the express or im
plied understanding that his official
action or inaction is to be in some
manner or degree influenced thereby,
shall be deemed guilty of a felony.
and on conviction shall be punished
as the legislature may provide.
Sec. 32. Any person or persons
34.

offering a bribe, if the same shall be
accepted, shall not be liable to civil
or criminal prosecution therefor.
But any person who offers or prom
ises such bribe, if the same shall be
rejected by the officer to whom it is
tendered, shall be deemed guilty of
an attempt to bribe, which is hereby
declared to be a felony, and on con
viction shall be punished as provid
ed by this article.
Sec. 33. Any person charged
with receiving a bribe, or with offer
ing or promising a bribe that is re
jected, shall be permitted to testify
in his own behalf in any civil or
criminal prosecution thereof.
Privileges of Senators and Members.
Sec. 3 4. Members of the legisla
ture shall in all cases except treason,
felony or breach of the peace, be pri
vileged from arrest, nor shall they
be subject to any civil process during
the session of the legislature, nor for
fifteen days next before the com>-
mencement, and after the termina
tion of each session. Divorce.
Sec. 35. The legislature shall not
have power to enact laws annulling
the contract of marriage in any case
where by law the courts of the state
are, or hereafter may he empowered
to decree a divorce. Vacancies.
Sec. 36. When vacancies occur in
either house the president of the
senate or speaker of the house in
which the vacancy may occur, shall
issue writs of election to fill such va
cancies. Revenue.
Sec. 37. All bills for raising revenue
shall originate in the house of repre
sentatives, but the senate may pro
pose amendments, as in other bills.
No money shall be drawn from the
treasury but in consequence of ap
propriations made by law.

530

LEGISLATIVE ARTICLE

Thursday]

[July 20

Vice and Immorality.
Sec. 38. The legislature shall pro
vide by law for the suppression of
vice and immorality in this state, and
shall never authorize any games of
chance, lottery or gift enterprise, un
der any pretense or for any purpose
whatever. Public Money and Appropriations.
Sec. 3 9. The legislature shall
make no appropriations of money out
of the treasury in any private law.
Bills making appropriations for the
pay of members and officers of the
legislature and for the salaries of the
officers of the government, shall con
tain no provision on any other sub
ject. The salary of any officer shall
not be increased for any term for
which he may have been appointed
or elected.
Sec. 40. No money shall be
drawn from the treasury except in
pursuance of an appropriation made
by law, and on the presentation of
a warrant issued by the auditor
thereon; and no money shall be di
verted from any appropriation made
for any purpose, or taken from any
fund whatever, either by joint or
separate resolution. The auditor
shall, within sixty days after ad
journment of each session of the leg
islature, prepare and publish a full
statement of all money expended at
such session, specifying the amount
of each item, and to whom and for
what paid.
Sec. 41. Each legislature shall pro
vide for all the appropriations nec
essary for the ordinary and contin
gent expenses of the government until
the expiration of the first fiscal quar
ter after the adjournment of the next
regular session the aggregate amount
of which shall not be increased with
out a vote of two-thirds of the mem-
hers elected to each house, nor exceed
the amount of revenue authorized by
law to be raised in such time; and all
appropriations, general and special,
requiring money to be paid out of the
state treasury from the funds belong

ing to the state, shall end with such
fiscal quarter: Provided, that the state
may, to meet casual deficits or fail
ures in revenues, contract debts never
to exceed in the aggregate $2 50 000;
and monies thus borrowed shall be
applied to the purpose for which they
were obtained, or to pay the debt
thus created, and to no other pur
pose; and no other debt but for the
purpose of repelling invasion, sup
pressing insurrection or defending
the state in war, (for payment of
which the faith of the state shall be
pledged) shall be contracted unless
the law authorizing the same shall,
at a general election, have been sub
mitted to the people, and ha ye re
ceived a majority of the votes cast
for the members of the legislature at
such election. The legislature shall
provide for the publication of sad
law for three months at least, before
the vote of the people shall be taken
upon the same; and provision shall
be made at the time for the payment
of the interest annually as it shall
accrue, by a tax levied for the pur
pose, or from other sources of reve
nue, which law providing for the
payment of such interest by such tax
shall be irrepealable until such debt
be paid. And provided, further, that
the law levying the tax shall be sub
mitted to the people with the law
authorizing the debt to be contracted.
Sec. 42. The legislature shall nev
er grant or authorize extra compensa
tion, fee or allowance to any public
officer, agent, servant or contractor,
after service has been rendered or a
contract made, nor authorize the pay
ment of any claim or part thereof,
hereafter created against the state,
under any agreement or contract
made without express authority of
law; and all such unauthorized agree
ments or contracts shall be null and
void. Provided the legislature may
make appropriations for expenditures
incurred in suppressing insurrection
or repelling invasion.
Sec. 43. The state shall never pay,
assume or become responsible for the
debts or liabilities of or in any man-

REPRESENTATIVE DISTRICTS

531

Thursday]

HASCALL— MASON

[July 20

ner give, loan or extend its credit to
or in aid of any public or other cor
poration, association or individual.
Miscellaneous.
Sec. 44. The legislature shall
provide by law that the fuel, station
ery and printing paper furnished for
the use of the state, the copying,
printing, binding and distributing the
laws and journals, and all other
printing ordered by the legislature,
shall be let by contract to the low
est responsible bidder; but the legis
lature shall fix a maximum price; and
no member thereof, or other officer
of the state, shall be interested, di
rectly or indirectly, in such contract.
But all such contracts shall be subject
to the approval of the governor, and
if he disapproves of the same there
shall be a re-letting of the contract
in such manner as shall be prescrib
ed by law.
Sec. 45. The State of Nebraska
shall never be made defendant in any
court of law or equity.
Sec. 46. No law shall be passed
which shall operate to extend the
term of any public officer after his
election or appointment.
Sec. 47. It shall be the duty of
the legislature to pass such laws as
may be necessary for the protection
of operative miners, by providing for
ventilation when the same may be
required, and the construction of es
capement shafts, or such other appli
ances as may secure safety in all coal
mines, and to provide for the enforce
ment of said laws by such penalties
and punishments as may be deemed
proper. Sec. 48. The legislature shall pro
vide for the establishing and opening
roads and cart ways connected with a
public road for private and public use.
Sec. 49. The legislature may pass
laws permitting the owners or oc
cupants of lands to construct drains
and ditches for agricultural and sani
tary purposes across the lands of
others.

Sec. 50. The legislature shall pass
liberal homestead laws and exemp
tion laws.
The secretary read the first section
as follows:
Sec. 1. The legislative authority
of the state shall be vested in the sen
ate and house of representatives, both
to be elected by the people. The
senate shall not exceed thirty-three
senators, nor the house of represen
tatives more than one hundred mem
bers. The representatives shall be
chosen annually, by the citizens of
each county respectively, on the Tues
day succeeding the first Monday in
November. Senators shall be elected for the
term of three years, and representa
tives for the term of one year from
the day next after their general elec
tion. Mr. HASCALL. Mr. Chairman. I
move to strike out the word "county"
in the 5th line and insert "repre
sentative district."
The committee divided and the
amendment was not agreed to.
Mr. MASON. Mr. Chairman. It.
is well for us to consider the lan
guage we put in our constitution.
Certainly representation should bear
some relation to population. Let me
say that I, for one, would be in favor
of giving western counties a larger
representation than their present
population would entitle them to,
in view of their rapid increase in
the number of their inhabitants. But
I am not in favor of giving repre
sentation to, every county. I might
illustrate the result by citing a case
in Iowa, where every strip of land
of a certain size made a school dis
trict. In one there was but one man
lived, and he elected himself school
director; voted for a school house,
worth $3,000; carried the election;

532

REPRESENTATIVE DISTRICTS

Thursday]

GRIGGS— MYERS

[July 20

got his money; built the house and
had his wife appointed teacher, using
part of the school house for a resi
dence, (laughter). Are counties to
furnish the basis for districts here?
Take my own county, for instance.
We have a town in it, which if it sees
fit, can take to itself the entire rep
resentation of the county. Now shall
we say that the constitution shall give
a representation to each county?
Soon there will be a large town in the
county, which will control the whole
county. Then the counties will say
"we prefer to have the county set off
in districts." If I am correctly inform
ed, there are some counties in this
state, in which there is not a man.
I hope this amendment offered by the
gentleman from Douglas (Mr. Has
call) may not be so summarily dealt
with. It is worth while to pause be
fore you vote it down. If the gentle
men desire to say that every coun
ty of a certain population, shall have
a certain representation, that will do.
Now while I don't live in the immedi
ate confines of that city which con
trols our county. I am not one of
those who say that all the learning,
all the ability, all the talent concen
trates in the large towns. There
fore I ask the gentlemen to pause and
consider, before the amendment of
fered by the gentleman from Doug
las (Mr. Hascall) is thus summarily
dealt with. I hope the amendment
will prevail. If the legislature shall
see fit to district up counties, they
will so order, if they see fit to district
in some other way, they will so order.
Mr. GRIGGS. Mr. Chairman. I
am in favor of this amendment. I
can say that although I represent
Cage county in this convention, I al

so represent other counties that are
sparsely settled I cannot vote nor
will I vote to have all the power of
carrying the elections left with the
large towns. Suppose in our county
we have three representatives, Be
atrice would get all three, and the
other parts of the county would get
nothing. I don't believe that because
there are 150 men living in the town
that they shall have the three repre
sentatives and the 100 men who live
in the country shall have nothing. I
am in favor of representative dis
tricts, leaving it in the hands of the
legislature to say what those districts
shall be.
I don't believe that there is any
gentleman oh this floor believes that
this is fair or just. I hope that the
amendment will prevail, I believe
that when it prevails that justice
thereby prevails and we will avoid
these swindlers and cheats. Suppose
that if we have a representative dis
trict composed of two counties, one
populous and the other weak. We all
know that this will leave the sparsely
populated county whose votes amount
to almost nothing — without a repre
sentative. I hope the friends of the
welfare of the unpopulated part of
of our country, will vote for this
amendment. /
Mr. MYERS. Mr. Chairman. I
do not concur in the objections that
have been made to this section. We
must have a starting point, and we
cannot recognize precincts, city, town
or parts of towns. We must have the
section state how the legislature may
have the representatives chosen by
the people. It certainly must be done
by counties first, by apportioning the
number of legislators to each coun-

REPRESENTATIVE DISTRICTS

533

Thursday]

WEAVER— MASON

[July 20

ty. In a subsequent portion of this
Article it is provided that the several
members of the legislature shall be
apportioned by that body according
to the number of inhabitants of each
district. That is in harmony with
the declaration in the 1st section. I
don't know as to the propriety of
forming the single representative dis
trict of our state. It is true that
the county of Douglas has a large
city with in it, which is also the case
with Otoe county, and that they ab
sorb all but one of the members from
those counties. Douglas county has
eight members. Now would you di
vide that city into eight parts and
the county into as many? If you do
that part of the city would still con
trol the portion outside of the city.
I think it is better to get one member
from the rural districts. Why not
have the voice of the people of the
whole - county centered upon the
number of delegates that they are
entitled to have. Let the whole
people of the county vote for the
whole numbHr of their representa
tives. It is not too big a cherry for
the inhabitants of any town to swal
low. I therefore hope, unless this
convention should agree to have lit
tle representative districts, that this
section may be adopted as reported
by the committee.
' Mr. WEAVER. Mr. Chairman. I
cannot see the force of the objections
that are expressed against the adop
tion of this section. I think the two
fears of the gentlemain from Otoe
(Mr. Mason) are not consistent,. He
first fears that the county would get
all and in the next place he fears the
city would get all the representation.
I can see no reason why this amend

ment should prevail.
Mr. MASON. Mr. Chairman. I
failed to make myself understood. I
would strike out the word citizens in
the fourth line and insert the words
"electors of the state." I am not one
of those who believe in exclusive rep
resentative districts, I would have
some elected from the whole state at
large; and why? It is a principle of
our nature that we look first to the
interests of those who are nearest to
us, our families, town, city or coun
ty which we represent. When we
reach that matter I shall favor the
election of a limited number of rep
resentatives from the whole state.
Let no gentleman misunderstand me
and think that I advocate single rep
resentative districts, or that I a'd-
vocate a representative from a county
whether it has a population or not.
This section will meet my views if we
strike out the words "of each citizen"
in 4th line and "county respectively"
in fifth line, and insert the words
"electors of the state." I have look
ed over the bill and see in every step
such barriers in the way of carrying
out the views here foreshadowed
that it is impossible for me to amend
it so as to meet these views if they
should receive the approbation of the
committee of the whole, and sooner
or later we must reach a point where
I trust it may be committed to the
smaller committee from whence it
came to make certain corrections.
Now sir, why should you elect your
senators for three years instead of
two? I believe that the law making
power should come first from the
fountain of all power, fresh from the
people, and your senators should be
elected for two years and your rep-

534

'ELECTORS" AND "CITIZENS"

Thursday]

MYERS

[July 20

resentatives for one year if you are
to have annual sessions of the legis
lature. There are other objections
which in the present state of this bill
I do not care to urge. I object to
that word "citizen" there. The new
born babe is a citizen; the maniac is
a citizen; the criminal in the peniten
tiary is a citizen; all are citizens, yes
sir, and woman is a citizen, and
when we are making constitutions let
us use language that has a specific
meaning. It is not every citizen
that is an elector, or ought to be an
elector; the word "citizen" should be
stricken out and the word "elector"
substituted in its stead. You have
defined what makes an elector in
one other provision that has been un
der consideration', hence I would not
say that the new born babe, resting
on the mother's bosom should help
elect these representatives, I would
not say that the maniacs in the insane
asylum should elect these represen
tatives, and for this reason I would
strike out the word "citizen" and
say "electors," and I would say elec
tors of the state, so as to fix it that
the election should be held on the
same day in all the counties. It seems
to me this obviates this difficulty.
Mr. MYERS. Mr. Chairman. The
gentleman from Otoe (Mr. Mason) is
right in his definition of who are citi
zens, that they are all the people of
the state. I agree to that, but this
bill provides for the recognition of
that portion of its citizenship who
shall control its government, who
shall be its electors, it does not ostra
cize any portion of them, it does not
introduce an hypercritical difficulty
among any class of our fellow citizens

but we are recognizing here as the
old Roman did, every man a citizen,
entitled to the protection of the state,
whether he be rich or poor, sane or
insane, but out of the body of all the
citizens we define by constitutional
law which portion of them should
control the government. We have
heretofore decided which class they
shall be. We did not take the ne
groes in for a long time, although
they were citizens, we do not take in
felons, convicts or lunatics; but we
have taken in four or five millions
which were disfranchised since the
organization of government. The
Romans did not allow their negroes
to vote but they were taken and em
bodied in the Roman Republic, they
were citizens to all intents and pur
poses. The British government en
franchises nine-tenths' of its subjects,
they are all called subjects there, here
we have no nobility, no such distinc
tions and hence this bill is perfectly
logical and correct in selecting fr6m
the mass of the people those who
shall be vested with the right of be
ing its electors. The gentleman says
we have a right to say who shall vote
here, rather we have the right to say
no man shall vote unless he is a natu
ralized citizen, that will keep out the
Chinese. Mr. Chairman, I have a
word to say in regard to the senators
whom this committee have provided
to be elected for a term of three
years. I am in favor of going as close
as you can to the minds of the peo
ple. Let me say the senate is a dif
ferent body to the house of represen
tatives, it is a conservative body, and
here is the distinction made in the or
ganization of the Federal Govern
ment, their senators are elected, not

THE STATE SENATE

535

Thursday]

MYERS— WEAVER

[July 20

directly by the people at the ballot
boxes, but by the state legislature'for
a period of six years. I want the
gentleman from Otoe to take notice
of the factV that the senate of the
United States- is a conservative body.
Should the senate be subject to the
caprice of the leaders of the com
munity the same as the house of rep
resentatives, elected here each one
from his little county to carry out a
particular object? We want the sen
ate there as a restraint upon the
house of representatives.
Mr. WEAVER. Mr. Chairman. I
rise to a point of order. There is
no motion touching this question the
gentleman is discussing.
Mr. MASON. The gentleman is
in order, the whole article is before
the committee.
The CHAIRMAN. The gentleman
is in order.
Mr. MYERS. I am a conservative
man, and have the great credit of
coming from a conservative state, and
1 desire that those principles which
have been established by our revolu
tionary fathers should be loved and
cherished by their children. I be
lieve I do not address a single indivi
dual in this convention who has the
honor of having been born upon the
soil of Nebraska. Let us listen to the
voice of wisdom from the old states
when they laid the superstructure of
their state governments down deep,
strong and broad in the bosom of
their hearts. Let us make no hasty
departures from those grand princi
ples which they have so established.
I have provided by the consent of
this committee, a senate which shall
be elected for three years, one portion

of it to go out every year, by which we
will have a fresh infusion from the
people sufficient to keep the body in
order. I do not propose to establish
gentlemen in a position where they
shall be deaf to the voice of the peo
ple, where the people shall have no
means of approaching them. I at
least want that spirit of stability es
tablished that will give the people a
sense of security in the pursuit of
their business, the establishment of
their corporations, and in the em
bodiment of their laws, hence I want
the senate to sit there free from the
restraints and restrictions of their
first election. They are there for th<=
second time, their minds clear and
unembarrassed, where they can act
impartially and justly. The senators
are sepatrate from the house of rep
resentatives, having a restraint up
on that body. Owing to inexperience
men come here passing laws that are
the cause of confusion in the enforce
ment of laws by the courts, they are
passed by gentlemen inexperienced in
deliberative bodies.
Now get your men of experience
into the senate, let them first draw
their lesson of wisdom in the house
of representatives, and after their
wisdom has been drawn here, and they
have been found honest, send them to
the senate with their increased wis
dom, and then you will have faith in
your senatorial body, and then gen
tlemen will not rise as they have in
this body, and denounce a former
legislature over which they had no
control. If you make them all mem
bers of the house of representatives,
elect your senators for the same term
that you do for the house. Why

536

LEGISLATIVE DISTRICTS

Thursday]

HASCALL

[July 20

your senator is all bosh; it means
nothing, and is a contradiction of
language. I hope this convention
then in its wisdom will see the pro
priety of making a difference in these
two points.
Mr. HASCALL. As I made this
motion I will give my views of this
section. By looking at the fourth
section you will discover it reads in
this way — "the senators should be
chosen from the several senatorial
districts". Now, I propose to make
the reading in reference to the rep
resentatives read in the same way —
"that the representatives should be
chosen from the several represen
tative districts." Now, I am
not opposed to putting the word
"elector" in the place of "citizen."
But that is not the question. Now
with regard to these representatives,
we will put in the constitution, un
doubtedly a section defining the seve
ral senatorial and representative dis
tricts in the state, and will also ap
portion senators and representatives
to those districts. The idea that the
gentleman had, and also the com
mittee, in framing this article was
that the representatives should be
chosen from the counties and that
the senators should be chosen from
districts. The reading of the whole
article would seem to convey that
idea, and the argument of the gen
tleman with regard to keeping coun
ties together for the purpose of elect
ing representatives would seem to
confirm me in the idea I have con
veyed as to what they intended. Now,
I am in favor, so far as practicable,
of bringing the representation clause
to the people as far as my voice

goes in this convention, I shall advo
cate that no more than one senator
shall be elected from one district.
and if more than one is to be appoint
ed from one county I shall advocate
cutting up that county into several
districts. If there is a single county
in the state entitled to three or less
representatives, and they desire to
have that in one representative dis
trict, in forming these representative
districts we can say, perhaps, that
a certain district shall have one or
two representatives.
When my colleague says there is no
way of arriving at the number of citi
zens of Douglas county outside the
city, I can very readily arrive at it.
I can give the population of the city
of Omaha, which is about 16,000, and
there are about 4,000 outside. And
I can say to the gentleman that they
have a population under our present
constitution, and considering the
present number we are entitled to
in the house of representatives
that would entitle Douglas county,
outside of Omaha, to more than one
representative. The gentleman could
have the representatives from the
country, and also have a voice in the
float. I think it would be improper
to say these should be elected by the
citizens of the state. I do not see
why we should not use the same lan
guage in regard to the representa
tives as to the senators. That obvi
ates all difficulty. With regard to
representation at large I am satis
fied this convention will not conclude
to allow senators to be elected by the
state at large. Because you make
the state at large a district. And, then
you can make a county a district —
one-half or two-thirds of a county a

LEGISLATIVE DISTRICTS

537

Thursday]

ROBINSON— LAKE

[July 20

district. This thing can be arrived at
in a satisfactory manner. We have
our counties cut up into precincts,
and it is easy to say this senatorial
district shall consist of precincts, or
you can say it shall consist of wards,
and our wards in cities are called
precincts in the counties. Conse
quently, I think it is well enough to
start out at this time, ahd say the
representatives shall be chosen annu
ally by the electors of the several rep
resentative districts on the Tuesday
succeeding the first Monday. And
when we reach those other questions
that have arisen it is a matter we can
•soon determine by the vote of this
¦committee. Now, with regard to the senators
I am not in favor of the proposition
•of the gentleman from Otoe or my
-colleague. I shall sustain a proposi
tion to elect senators for two years,
:and let one half go out every year.
I think that is the most sensible plan.
Mr. ROBINSON. I move that this
•committee now rise and report this
article back to the convention with
the recommendation that it be recom
mitted to the legislative committee,
with instructions to prepare an arti
cle as nearly conformed to the con
stitution of the state of Illinois as
our circumstances will allow.
Mr. LAKE. I do not know wheth
er we want the article of Illinois or
not. It seems to me a strange pro
cedure. Let him see what it is. If
any plan is to be adopted that will
conform to the plan we have been liv
ing under for a number of years.,
which has worked very well. Now,
most certainly, the constitution we
ihave been living under for the past

four years, so far as our legislature
is concerned, would be far more suit
able to our wants and tastes than that
of Illinois. And it seems to me that
if there is any serious difficulty or
embarrassments in the way of modi
fying this which has come from the
committee to whom this subject has
been entrusted, that we have not yet
met with any serious impediment.
Now, I would like to hear from gen
tlemen who propose this mode of dis
posing of the committee. Why not
conform to any other model that
would be just and proper and right?
Why not resort to the constitutions
of the several states for the purpose
of getting up some plan for an arti
cle of this kind? And why confine
the committee to the state of Illinois?
Is this committee prepared to say
that the constitution of the state of
Illinois, in this regard, is just the
thing we need, or that light cannot
be drawn from the experience of some
other state? Why force this mat
ter upon this convention in this shape
at this time? We have had under
consideration but one section of this
Article. Now in respect to the dif
ficulty that we have met right here at
the threshold, this is not a serious
one, and there can be no serious ob
jection to taking the language pro
posed in the report, or the language
of the amendment offered by my col
league (Mr. Hascall). I don't think
the language in which the gentleman
from Otoe (Mr. Mason) proposes to
clothe this thing, is appropriate. I
think the language in our old consti
tution is better. We know that in
this matter the people of the state are
satisfied with that, we have not heard
one complaint with respect to this

538

LEGISLATIVE DISTRICTS

Thursday]

LAKE- TOWLE

[July 20

branch of our old constitution. It
leaves it with the legislature and if
the legislature, under the old consti
tution, should see fit to make single
districts in each county, they would
have authority to do so; and they
would be authorized to do so under
the provision of my colleague, (Mr.
Hascall) or the gentleman from Otoe,
(Mr. Mason) or under the section
as reported by the committee. Leave
the legislature to determine what
these districts should be. If the leg
islature should see fit to say that
counties should be the largest, or
smallest of these districts, it would
have the authority so to do. I am in
favor of leaving it just as it was left
in our old constitution. I am opposed
to re-committing this to the commit
tee from which it came with instruc
tions to make it conform to the Illi
nois constitution. In that constitu
tion, there are many things inapplic
able to our wants. It seems to me
it is tying the hands of the commit
tee. For what reason is this motion
made? Is it for the purpose of in
sulting the committee? This section
can be amended here; why return it
to the committee? If the gentleman
can give any good reason why it
should be re-committed now, upon
this cursory view of the Article, be
fore we have fully considered one sec
tion, I would like to know what those
reasons are. I would like the gentle
man to give reasons why they would
resort to the Illinois constitution. We
have a great many constitutions, that
can be resorted to; we have consti
tutions which have borne the test
of experience of time, that can be re
sorted to. What is this Illinois con

stitution? Have we had experience
in it? Has Illinois had experience in
it? If we are to take any constitu
tion for a model, I would say, take
the constitution under which we have-
lived up to the present time. Why
throw overboard, that which has been
to us, in this respect, a good pilot,
and seek that "which we know not
of?" It seems to me that we should
gather some information from the
experience of tt|e past, and if the ex
perience of the past shows us that
representative districts such as we
have had, are good, let us conform,
as nearly as practical to that. Let us
not go and take up that system, the
workings of which we know nothing
of. I am not willing to return this
Article without first considering it.
For these reasons, Mr. Chairman, I
am opposed to the proposition.
Mr. TOWLE. Mr. Chairman. I
would ask the gentleman from Doug
las (Mr. Lake) whether if the resolu
tion was so amended as to strike out
that portion which relates to the con
stitution of Illinois, he would sup
port it?
Mr. LAKE. I would ask the gen
tleman from Richardson (Mr. Towle)
why this tirade — why this haste. We
have merely, thus far, read the first
section, and there seems to be a con
flict of opinion as to changing a
word or two in this section.
There does not seem to be any great
difficulty there. I am in favor of
giving the report of any committee a
fair consideration. The committee
which has been selected for this busi
ness, have had this matter under con'
sideration and have given a good re
port. Until we have found some dif-

LEGISLATIVE DISTRICTS

539

Thursday]

ROBINSON— MYERS-GRAY

[July 20

ficulty that it is impossible to over
come, we should consider their report
in the same manner we have consid
ered the reports of other committees.
Mr. TOWLE. Mr. Chairman. In
looking into the report and after
talking with other members of this
convention, I have found that it is
glittering all over with imperfections.
We find objections piled, one upon
another. It must be re-committed
back, or it will take us days, weeks
and months to trim it into proper
shape. I believe, sir, that this propo
sition is not a fair expression of this
committee. I believe this commit
tee has allowed an overshadowing
influence to control its actions in this
respect. I think if they are allowed
to, they will give us a report which
will be satisfactory. The gentleman
has alluded to the constitution of the
state of Nebraska. I would take the
corresponding article in it, and place
it in place of the report of this com
mittee. I would take the legisla
tive Article in the .constitution of
Kansas, in preference to this report.
Now my conviction upon this report
as it stands here today is that if we
go on considering it, it will be many
days before we adopt it. I will make
an amendment to the resolution of
the gentleman from Lancaster (Mr.
Robinson) which is that that portion
relating to the constitution of Illi
nois be stricken out.
Mr. ROBINSON. I accept the
amendment, Mr. Chairman. I rise to
answer the gentleman from Douglas.
I made that motion because I wanted
to and had a: right to, and because
I think it is a poorly digested article.
We find an objection right at the be

ginning and I don't believe we will
agree in the three questions raised. In
making that motion I meant to
throw no insult upon the gentlemen
reporting that article.
Mr. MYERS. Mr. Chairman. I
am not at all tenacious about having
this report adopted as reported. I
don't propose to thrust it down the
throats of this convention. I know
that other reports come into this con
vention just as erroneous and defect
ive as this report which required
amendments to make them perfect,
and I don't suppose that an article
like this could escape objections. If
there is an absolute necessity of re
committing this bill, why let it be re
committed. I shall not take it as an
affront, but I think the particular
section under consideration can be
amended as others have been.
Mr. GRAY. Mr. Chairman. I hope
the motion will not prevail. I pre
sume every member of this house has
been at work preparing amendments
for the different sections of this re
port and is ready now to enter upon
the consideration of it, and sir, why
the re-commitment? A number of
days will pass before it is again re
ported and then it will require some
time to examine it before we are
ready for action upon it. No sir, as
has already been said there are only
a few questions on which differences
of opinion will exist, and they will
still exist and be discussed if the bill
is re-committed, until they are passed
upon by this committee. I defy that
committee or any other committee to
make a report that will suit every
one here on the questions raised un
der the consideration of this bill .

540

ELECTION OF LEGISLATORS

Thursday]

WAKELEY— MOORE

[July 20

There is too wide a difference of
opinion upon the subjects. For my
own part I desire to see every county
of this state have a representative
in one branch of the legislature. It
may be to say every county is go
ing too far. I desire to see a limit
fixed, but as a general rule I would
prefer to see such a provision made.
Other gentlemen here will prefer our
present system of representation in
cluding the "floats" and all, but we
will have to decide the matter for
ourselves and no report of any com
mittee can decide them. I am oppos
ed to this going back at all to any
committee. Mr. WAKELEY. Mr. Chairman. I
desire that some action may be taken
that shall expedite the consideration
of this article. It seems to me if we
re-commit it to this committee before
any expression of the minds of the
convention as to all main features of
the article is had, the committee
will have no guide as to the desire pf
the convention. If they have no
guide in that matter, what have we
gained. It seems to me there are a
great many practical objections to
re-commit this article at this time. I
think we should proceed with the ar
ticle now before us as well as we can,
and go on with it until we have set
tled the main features of the legisla
tive article, we should decide what
shall be the limit to the number of
senators and representatives, what
shall be their term, whether we shall
have an annual or biennial sessions,
what we will propose as to senatorial
and representative districts, what is
to be the compensation and I might
enumerate a great many other par

ticulars. I think we ought to arrive
at conclusions before the article is
re-committed. When we have done
this, if we think the arrangement of
the article might be bettered, that
portions of it may be dispensed with,
the committee will have some guide.
In regard to this amendment Mr.
Chairman, my opinion is there is no
necessity in this first section of say
ing anything about this. Suppose we
were to strike out "by the citizens of
each county respectively," would not
that obviate all the difficulties we
have encountered thus far? At some
appropriate place in this article we
ought to make provision as to the
districts, there is no necessity of
providing for it in this section, say
simply representatives shall be chos
en annually, that is enough. The
suffrage article fixes the qualifica
tion of an elector. They cannot be
chosen by anybody but electors. I
see no necessity for it. Simply say
how often they shall be chosen and
on what day. Certainly you have not
got to stop whenever you speak of a
senator or representative to say it
must be by qualified electors. It
seems to me we can go along and
take these provisions as they come
and express our views upon
them in this committee, un^til we
have at least blocked out the main
features of the legislative article as
we desire to make it.
Mr. MOORE. Mr. Chairman. As a
member of that committee I shall like
to seethe report re-committed. I think
it will do no harm whatever for us
to look over it again. Through cer
tain circumstances I did not get to
meet with the committee but once
and that was but a very short time,

LEGISLATIVE ARTICLE

541

Friday]

S COFIELD-M ASON-BOYD

[July 21

the next thing I heard was that it
was passed upon and ready to be
presented to the convention. I
asked the privilege of reading the
manuscript, but could not, so that I
never saw it until it was read in the
convention. Several members of the
committee are anxious for re-com
mitment. We do not mean to cast
any reflections on the chairman of the
committee at all, we wish to have
another chance of getting at some
thing that will satisfy this conven
tion. The CHAIRMAN. The question is
that the committee rise and report
the article back to the committee.
The motion was not agreed to.
Mr. GRAY. Mr. Chairman. I move
that the committee now rise, report
progress and ask leave to sit again.
The motion was agreed to.
Mr. SCOFIELD. Mr. President.
The Committee of the Whole have
had under consideration the article
reported by the legislative committee,
and have instructed me to report pro
gress and ask leave to sit again.
The report of the committee was
accepted. Adjournment.
Mr. WAKELEY. Mr. President. I
move that when we adjourn we ad
journ to meet at eight o'clock this
evening. Mr. GRIGGS. Mr. President. I
move we adjourn to meet at nine
o'clock to morrow morning.
The convention divided and the
motion was agreed to, so the con
vention at five o'clock and fifty-five
minutes adjourned.

TWENTY-FIFTH DAY.
Friday, July 21, 1871.
The convention met at ten o'clock
and was called to order by the presi
dent. Prayer.
Prayer was offered by the Chap
lain, as follows:
Our Father, may it please Thee to
take care of us this day. Bless all
our doings. Grant that we may have
Thy favor in the glory of righteous
ness. Give light to all the land that
there may never again be battle un
to blood. Continue the Nation's life
and may prosperity, through intelli
gence and virtue extend to our broth
erhood. May freedom reign through
out all our borders. Amen.
Reading of the Journal.
The Journal of the last day's pro
ceedings was read and approved.
Privilege.
Mr. MASON. Mr. President. I
desire now to ask the consent of the
convention to record my vote on Sec
tion 13 of the Bill of Rights, against
the amendment for the insertion of
the word "general," as I was out
when the vote was taken. (Leave,
Leave.) Reports of Committees.
Mr. BOYD. Mr. President. Your
committee on Railroad Corporations
beg leave to report that they have
had under consideration the various
resolutions referred to them and
would respectfully submit the follow
ing report. I move that it be read
twice by its title, ordered printed and
referred to the Committee of the
Whole House.
The report is as follows:

542

RAILROAD CORPORATIONS

Friday]

[July SI

ARTICLE.
Railroad Corporations.
Sec. 1. Every railroad corporation
organized or doing business in this
state under the laws or authority
thereof, or by the authority of the
general government shall have and
maintain a public office or place in"
this state for the transaction of its
business, where transfers of stock
shall be made, and in which shall be
kept for public inspection, books in
which shall be recorded the amount
of capital stock subscribed and by
whom, the names of the owners of
its stock, and the amounts owned by
them respectively; the amount of
stock paid in, and by whom; the
transfers of said stock; the amount of
its assets and liabilities, and the
names and place of residence of its
officers. The directors of every railroad
corporation shall annually make a re
ports, under oath, to the auditor of
public accounts, or some officer to be
designated by law, of all. their acts
and doings, which report shall in
clude such matters relating to rail
roads as may re prescribed by law
And the legislature shall pass laws en
forcing, by suitable penalties, the pro
visions of this section.
Sec. 2. The rolling stock and all
other movable property belonging to
any railroad company or corporation
in this state, shall be considered per
sonal property, and shall be liable
to execution and sale in the same
manner as the personal property of
individuals. And the legislature shall
pass no law exempting any such pro
perty from execution and sale.
Sec. 3. No railroad corporation
shall consolidate its stock, property
and franchises with any other rail
road corporation owning a parallel or
competing line; and in no case shall
any consolidation take' place except,
upon public notice given of at least
sixty days to all stockholders, in
such manner as may be prescribed
by law. A majority of the directors

of any railroad corporation now in
corporated, or hereafter to be incor
porated by the laws of this state,
shall be citizens and residents of
this state.
Sec. 4. Railways heretofore con
structed, or that may hereafter be
constructed in this state, are hereby
declared public highways, and shall
be free to all persons for the trans
portation of their persons and pro
perty thereon, under such- regula
tions as may be prescribed by law.
And the legislature shall from time
to time pass laws establishing reas
onable maximum rates of charges for
the transportation of passengers and
freight on the different railroads in
this state.
The liability of railroad corpora
tions as common carriers shall never
be limited, but the same shall be and
remain as fixed by the common law.
Sec. 5. No railroad corporation
shall issue any stock or bonds except
for money, labor or property actual
ly received and applied to the pur
poses for which said corporation was
created; and all stock, dividends
and other fictitious increase of the
capital stock or indebtedness of any
such corporation shall be void. The
capital stock of no railroad corpora
tion shall be increased for any pur
pose except upon giving sixty days
public notice in such manner as may
be provided by law.
Sec. 6. The exercise of the power
of right of eminent domain shall nev
er be so construed or abridged as to
prevent the taking by the legislature
of the property and franchises of in
corporated companies already organ
ized, or hereafter to be organized,
and subjecting them . to the public
necessity the same as of individuals.
The right of trial by jury shall be
held inviolate in all trials of claims
for compensation when in the exer
cise of said right of eminent domain,
any incorporated company shall be
interested either for or against the
exercise of said right.
Sec. 7. The legislature shall pass

MUNICIPAL INDEBTEDNESS

543

JPriday]

KIRKPATRICK

[July 31

laws to correct abuses and prevent
unjust discriminations and extortion
in the rates of freight and passenger
tariffs of the different railroads in
this state, and enforce such laws by
adequate penalties to the extent, if
necessary for that purpose, of forfei
ture of their property and franchises.
Sec. 8. AH lands in this state here
tofore granted or that may here
after be granted by the United States
to any railroad corporation and to
which any railroad coroporation is
now or hereafter may become enti
tled by the building thereof, shall be
subject to taxation from the time
the same are designated and set apart
or surveyed and set off by the United
States for said corporation.
Sec. 9. No county, city, town.
township or other municipal corpora
tion shall ever make any donation
to, or loan its credit in aid of, any
corporation that has received or may
hereafter receive a grant of land
from the United States, or to any
railroad corporation which has or shall
hereafter construct its road in whole
or in part from the proceeds of land
grants made or hereafter to be made
to any corporation or company by the
United States.
Mr. KIRKPATRICK. Mr. Presi
dent. Your committee on State,
County, and Municipal Indebtedness
beg leave to report as follows: I
ask leave to read the report, as it is
short. (Leave). ARTICLE —
Sec. 1. No city, town, county, pre
cinct, or other municipality or other
subdivision of the state shall ever be
come a subscriber to the capital stock
of any railroad or private corpora
tion, or make donation thereto, or aid
in the construction of any railroad or
work of internal improvement, or
create or contract any indebtedness
for any purpose herein specified, un
less a proposition so to do shall have
been submitted at an election held
by authority of law and three-fifths of

the qualified electors voting on said
propos.tion shall be in favor of the
same. Such indebtedness, inclusive of any
and all similar indebtedness whenso
ever created, shall not at any time
exceed ten per cent, of the valuation
for taxable purposes of such city,
county, town, precinct or other muni
cipality or sub-division of the State
contracting such indebtedness.
Sec. 2. Nor shall any aid be given to
any railroad company or for the con
struction of any railroad, or any in
debtedness be created or contracted
for such purposes, unless the line ot
the railroad shall have been definitely
located, and shall be specified in the
proposition voted upon.
Your committee desires to make
another report on the same subject.
I will state that this is a minority
report: ARTICLE 

Section 1. No county, city, town,
precinct or other municipality shall
ever become subscribers to the capi
tal stock of any railroad or private
corporation, or make donation to or
loan its credit in aid of such corpora
tion; PROVIDED, That the adoption
or rejection of this article shall not
affect in any manner the question of
the legality or illegality of any dona
tions already made to any railroad
company or other private corporation.
I ask that they be read twice by
the title, ordered printed and refer
red to the Committee of the Whole.
The reports were read the first and
second time by their title and refer
red to the Committee of the Whole.
Mr. CAMPBELL. Mr. President.
Your committee on Printing and
Binding submit the following report:
The Secretary read the report as
follows. ARTICLE 
Section 1. The printing and bind-

544

LIMITATION ON DEBATE

Friday]

SCOFIELD-STEWART-MYERS

[July 21

ing of the laws, journals, bills, legis
lative documents and papers for each
branch of the Legislature, with the
printing required for the Executive
and other departments of State, shall
be let on contract to the lowest re
sponsible bidder by the State Execu
tive officers, arid in such manner as
shall be prescribed by law; PROVID
ED, The printing and binding shall
be done in the State.
Mr. CAMPBELL. Mr. President. I
move the report take the usual
course. The report was read the second
time by its title and referred to the
Committee of the Whole.
Mr. SCOFIELD. Mr. President.
The Special Committee, to whom was
referred the report of the Standing
Committee on State Institutions and
Public Buildings, together with the
several amendments proposed there
to, respectfully report that it has had
the subject under consideration and
submit the following and ask that it
be embodied in the Constitution.
The Secretary read the report as
follows: Section. — . The Superintendent
of Public Instruction and the Land
Commissioner shall be elected at the
first general election provided for in
this Constitution and at the general
election every two years thereafter;
and these officers, together with the
Secretary of State, the Treasurer and
the Attorney General shall have the
supervision and control , of all the
public buildings, institutions, grounds
and lands of the State, subject to such
rules and regulations as may be pre
scribed by law, and your Committee
recommend that the same be made a
part of the article on Executive.
Mr. MASON. Mr. President. I
move that report be referred to the
Committee of the Whole House.

The motion was agreed to.

Resolutions.
Mr. WAKELEY. Mr. President. I
move the adoption of this resolution:
"RESOLVED. That the report of
the Committee on Electoral and Rep
resentative Reform be made the spec
ial order and considered on Tuesday
evening of next week at 8 o'clock,
and each evening thereafter at the
same hour nutil otherwise ordered.
The resolution was adopted.
Mr. STEWART. Mr. President. I
offer a resolution.
The Secretary read the resolution
as follows: 'RESOLVED. That no member of
the Convention shall, while in Com
mittee of the Whole, speak more than
twice upon the same subject, and
then not more than ten minutes at
any one time."
Mr. HASCALL. Mr. President. I
move to amend by inserting fifteen
minutes instead of ten.
Mr. STEWART. I accept the
amendment and move that rule forty-
three be suspended so that the resolu
tion can pass.
Mr. MYERS. Mr. President. I am
certainly in favor of restricting the
time alloted to each gentleman in the
discussion in Committee of the
Whole. I believe it is expedient to
abridge the time. I shall vote for
the proposition with this restriction,
that the chairman of committees be
allowed the same length of time but
to take the floor oftener in explana
tion of their several propositions. I
am unfortunately in charge of a bill
which is open to much criticism, as
it contains a large number of provis
ions which are susceptible of amend
ments, and I would like the opportun
ity to explain my own views and the
views of the committee without limit
as to the number of times. I there-

LIMITATION ON DEBATE

545

Friday]

GRAY - PHILPOTT— MOORE

'[July 21

fore move to add, "except the chair
man of the committee who shall be
privileged to speak more than twice."
Mr. GRAY. Mr. President. I de
sire to offer a substitute for the re
solution. "That no member be al
lowed to speak more than once, and
only fifteen minutes on a question
either in Convention or Committee
of the Whole."
Mr. PHILPOTT. Mr. President. I
am opposed to the substitute and the
suspension of the rule, in order that
parties may be enabled to pass either
amendment or substitute. I believe
we ought to have a fair opportunity
td express our opinions. I believe no
gentleman in the Convention will in
tentionally consume, in a needless
manner, the time of the Convention.
Now it is a parliamentary rule that
in Committee of the Whole persons
shall not be limited to time or a num
ber of times. Who have been con
suming the time here? Everyone
must admit that the gentlemen who
have consumed the most time are
persons acknowledged throughout the
State to be men of the greatest abil
ity, and I know I have been greatly
benefitted by all they have said. In
some cases my opinions have entirely
changed from the sound reasoning of
those gentlemen. If any gentleman
does not want to remain here let him
resign, and his constituents send
somebody who can devote the time.
I speak not for myself but for men
of ability who ought to lead.
Mr. MOORE. Mr. President. If I
remember correctly, we are assem
bled around the desk and took upon
ourselves a solemn oath to perform
our duties as constitution makers
35

In that oath is embraced this, that
we apply ourselves to the gaining of
such information as shall enable us
to form the best constitution we are
able to. We have two ways to gain
information, one from books in our
library, the other from men of ex
perience. I can gain a deal of infor
mation from the speeches made here,
there is but very little repetition from
gentlemen who speak here, they are
men of experience, and we ought to
give them time to express their views.
Call of the House.
Mr. PHILPOTT. Mr. President. I
move a call of the House.
The Secretary called the roll.
Absent on leave, Messrs. Grenell,
Parker, and Tisdel.
Resolutions Again.
Mr. MASON. Mr. President. I rise
to speak of a question which must
necessarily come before this Conven
tion. For instance, the question of
minority representation to which
some gentlemen have addressed
themselves; and it is a question upon
which I must express myself com
paratively lengthy. And there are
other questions to which I desire to
listen. It may be true that the gen
tleman from Dodge (Mr. Gray) and
others, owing to activity of their
brain, can comprehend a question in
fifteen minutes. I sit here some
times, and am in doubt at the end of
an hour as to what my duty is. I am
opposed to this resolution at this
time. If in the future, it should be
come absolutely necessary to do it I
shall be in favor of it. We are not
here to make a law which may be re-

54fi

LIMITATION ON DEBATE

Friday]

STEWART-GRAY— KIRKPATRICK

[July 21

pealed next winter, or modified, or
changed when it shall be found to
work bad in practice. Hence it be
comes necessary to weigh carefully
all words used and the general char
acter of the proposition, before it is
embodied in the constitution. I be
lieve there is a time when great haste
is great waste, and I also believe
there is a time when great caution
and slow speed is progress itself.
Mr. STEWART. It is a little pecu
liar to me that those gentlemen upon
this floor, who make long speeches,
are the poorest informed in relation
to the articles in the constitution. If
.1 remember right those gentlemen
who oppose this resolution are the
ones who are most up, and then fail
to understand the question. I, for
one, do not propose to sit here and
listen to speeches of this kind. I ad
mit there are some gentlemen I can
listen to for an hour; but there are
others who make undigested speeches
of an hour's length, and when they
get through we cannot tell what they
have said. I am opposed to this wast
ing two or three hundred dollars of
the peoples money per day in listen
ing to long speeches. There is not
a gentleman in this house who could
not make all the remarks he wants to
in thirty minutes. The people of
this state are tired of it and already
beginning to complain. I feel some
times it might be my duty to express
myself; but I do believe some men
speak for the sake of hearing them
selves speak, and for my part I am
not going to sit here and be tortured
with their speeches.
Mr. GRAY. Mr. President. It is
with no disposition on my part to

abridge discussion that I favor this
resolution. But, as I have said here
tofore, gentlemen can express them
selves intelligibly upon any question
that is likely to arise before this body
in 15 minutes. It seems to me some
gentlemen entertain strange views
upon this subject. I desire to hear
all pertinent discussion on the ques
tions before this house, but I do not
desire the time to be spent in the de
livery of buncombe speeches. It is
not consistent with my notions of du
ty to spend the time of this conven
tion with tragical displays and such
expressions as "The Pale Horse and
His Rider," and others pertinent to
Knight Errantry. When I desire to
see a play I will go to the Academy
of Music in Omaha and pay my money
for the entertainment, but here I de
sire to discuss the practical questions
of the day, which interest the people
of the state, and not to listen to idle
declamations. I trust every gentle
man who is disposed to crowd on the
action of this convention to a conclu
sion will support the amendment.
Mr. KIRKPATRICK. I am op
posed, on general principles, to gag
rules, and this is a highly restrictive
rule which applies to limiting dis
cussion in committee of the whole to
fifteen minutes. It is in committee
of the whole we do our work; where
we complete the article proposed to
be placed in the constitution; and we
must have time to mutually confer
together. Now, I think there are
some gentlemen in this convention
more able to give advice than others.
It is so in all deliberative bodies. For
my part, I desire to do my duty hon
estly. There are some men who seem

LIMITATION ON DEBATE

547

Friday]

STEVENSON-BALLARD— CAMPBELL

[July 21

to intuitively grasp certain proposi
tions. I heard one gentleman here
say his mind was already made up on
certain questions. Why, that is not
right. I hope there is not another
gentleman who will say so. The rule,
if carried, would not be enforced, for
you will not wish to choke a man
down. We have a rule which prohib
its smoking. Now that is a democrat
ic habit. I have seen half a dozen
men smoking here, but I am not in
favor of stopping them.
Mr. STEVENSON. Gentlemen, we
have spent over thirty dollars of the
state's money in the argument of this
question, and for the love of God,
let's us come to the question.
Mr. MASON. In an experience of
some years, I have never known it to
fail that those who make the most
frequent reference to the interests
of the people, are loudest in their
professions of devotion to their inter
ests, are always talking of the pro
priety of saving the pepple's money,
are least devoted to their interests,
and their professions are but the step
ping stones to the throne of a first-
class demagogue.
Mr. BALLARD. I rise to offer an
amendment —
Mr. GRAY. With permission, I de
sire to withdraw the substitute.
Mr. BALLARD. I was going to
remark that it might happen to me,
at a very unexpected moment, that I
should desire to make a very greait
speech on very small things; and in
order to do that I might want more
than fifteen minutes, and I move to
add the words "unless permission be
granted."

Mr. CAMPBELL. Mr. Chairman. I
think it is very desirable that every
member here should have the privi
lege of handing down his name and
the record of his actions to the un
born babes of future generations. I
also think that every omnium gather
um, and every omnium "catterum
should have the privilege of handing
down his name to posterity (Laugh
ter) and of course they should be al
lowed to talk as often, and as long
as they wish.
Mr. ESTABROOK. Mr. Chairman.
This sir, is not a1 new thing to me.
Perhaps, in the ways of Providence,
I am the only one in this body who has
been in a like body before. In this,
the same subject was handled in the
very same way, and three individuals
in that very able body declared that
they did not want their names handed
down to posterity, so that you will
find, in the debates and proceedings
of that body, which I have at my desk
that when Judge Whiton argued a
question it simply reads "Mr. Whit
on spoke." Now I ask any lawyer,
or any man capable of being a juror
— I ask the gentleman from Dodge
(Mr. Gray) if he ever argued upon
the question as to what shall be the
exact signification of any particular
passage in the constitution, if these
published debates upon those points
are not of the greatest service to him
in coming to a decision as to the ex
act meaning intended? Now I un
dertake to say that the debates of this
body are of the utmost importance
and value to the inhabitants of this
state. Now, speakers may abuse
these privileges of debate; there are
such things as talking for "bun-

548

LIMITATION ON DEBATE

Friday]

E S T A BROOK— PHILPOTT

[July 21

combe" — of talking against time.
There are men who have a very high
appreciation of their abilities, and
who love to hear the sweet sound
of their own voices. But, sir, we
have men in this body who are not
of that character — men of ability and
talent. It has been well said here
that most of those who have spoken
upon important questions have thrown
light upon those matters. Let no
man undertake to say that he was
not enlightened by the able speech
of Judge Mason a few days since.
Why, sir, he swayed and carried with
him almost every man in the house.
In that speech there was not one
word or syllable more than was nec
essary. I demand that this gag shall
not be placed in the mouths of the
members here. I ask this not only in
the name of my constituents, but in
the name of the people of Nebraska,
who are to be governed by this con
stitution. Tell me where you are to
go to nulock the mysteries of this con
stitution? Why, I have found in my
local practice, that I often want to
know what a particular provision
means. In the debates on the Wis
consin constitution, when I wish to
find what three or four of the ablest
members of that convention had to
say with regard to a certain import
ant point, I find that Mr. Whiton
spoke and Mr. Judd spoke or Mr.
Beal spoke, but I find no record of
what they said. If you cut off debate
here, I know you will always regret
it. It is an impeachment of the ca
pacities and motives of every member
here, when you say he don't know
how long to talk. Otoe county sent
our friend Mason here, because he is

a talker — one of the ablest talkers
in the state. Shall you deprive his
constituency of his ability in that
direction? The only two things per
haps which will cause much debate is
the question of minority representa
tion and the right of counties and
municipalities to issue bonds. Here
are men who have made this a study,
do you think they can establish these
principles in fifteen minutes? Do
you think the people sent Judge
Wakeley (who has made a study of
the principles of minority representa
tion) here to allow of his being gag
ged upon these questions after he has
spoken fifteen minutes? If any man
here, has business at home which re
quires his attention, I would advise
him to ask leave of absence until the
end of the session, and I am sure it
will be granted him, gladly. Why
do you pay thirty dollars per day to-
those reporters, if you do not want
debates upon these important ques
tions. If we are here for the purpose
of gaining that information which
comes from the attrition of mind with
mind, let us derive some benefit from
it. Mr. PHILPOTT. Mr. Chairman. I
have but a few words to say. I wish
to call the attention of the gen
tlemen to three points. When we are
in committee of the whole, any mem
ber can cut off debate by moving to
rise and report progress. When we
are sitting in convention, debate can
be cut off by moving the previous
question. This has been called but
once in this convention, and then
fifteen gent'emen rose. I am oppos
ed to the rroposition. I came here
to do mv i mty by my constituents,

LIMITATION ON DEBATE

549

Fridayl

GRAY— MAXWELL— WOOLWORTH

[July 21

and you never will, so help me God,
tie my tongue here. I will be bound
by the ordinary rules which rule
bodies of this kind, but not other
wise. I am sure to be heard, and I
will be heard.
The CHAIRMAN. The question is
upon the motion to suspend the rules,
in order to pass this resolution.
Mr. PHILPOTT. Mr. Chairman. I
call for a division of the question.
Mr. GRAY. Mr. Chairman. It
seems there can be no difficulty about
suspending the rules.
The PRESIDENT. The question
is on the motion to suspend the rules
in order to consider this resolution.
The "ayes" and "nays" were de
manded. The result was announced
—"Ayes," 25, "nays," 22 — as fol
lows: AYES.

Abbott,

Manderson,

Campbell

Myers,

Curtis,

Newsom,

Eaton,

Parchin,

Gibbs,

Reynolds,

Granger,

Scofield,

Gray,

Speice,

Griggs,

Stevenson,

Hascall,

Stewart,

Hinman,

Thummel,

Ley,

Thomas,

Lyon.

Woolworth

McCann,

NAYS.

Ballard,

Moore,

Boyd,

Neligh,

Cassell,

' Philpott,

Estabrook,

Price,

Kenaston,

Shaft,

Kilburn,

Sprague,

Kirkpatrick,

Towle,

Lake,

Vifquain,

Majors,

Wakeley,

Mason,

Weaver,

Maxwell,

Wilson. — 2

-25.

ABSENT OR NOT VOTING.
Grenell, Tisdel,
Parker, Mr. President. — 5.
Robinsonv So the motion to suspend the rules
was not agreed to.
The PRESIDENT. The question is
on the adoption of the resolution.
Mr. MAXWELL. Mr. President. I
understand that the vote just taken
disposes of the question for today.
The PRESIDENT. The gentleman's
point of order is well taken. The mo
tion to adopt the resolution is not in
order. Mr. WOOLWORTH. Mr. Presi
dent. I hope the convention will go
into the committee of the whole this
morning to consider the report of
the select committee on State Insti
tutions and Public Buildings.
Mr. NELIGH. Mr. President. 1
move that when we adjourn at noon,
we adjourn until Tuesday next^at 2
p. m.
Mr. HINMAN. I hope this motion
will not prevail. An adjournment of
this kind will do them no good. It
appears to me these adjournments
are getting too frequent. We are
squandering the people's money.
Mr McCANN. Mr. President. I
am very anxious to go home as I have
business to attend to; but I do
think there is the greatest injustice
in these adjournments.
The PRESIDENT. The question is
on the motion to adjourn from noon
today until Tuesday at 2 o'clock p.
m. The motion was not agreed to.
Leave of Absence.
Mr. WAKELEY. Mr. President. I

550

QUESTION OF ADJOURNMENT

Friday]

BALLARD— ESTABROOK— HINMAN

[July 21

believe the convention will cheerfully
vote a leave of absence to any that
have to go home.
Mr. McCANN. Mr. President. It
is absolutely necessary for me to go
home to day. I will ask leave until
Monday noon.
Leave granted nem. con.
Mr. STEVENSON. Mr. President.
[ ask leave of absence until Tuesday
at 2 o'clock.
Leave granted nem. con.
Leave of absence was granted to
the following gentlemen until Tues
day at 2 o'clock p. m.:
Messrs. Majors, Thomas, Esta
brook, Parchin, Towle, Scofield, Ne
ligh, Kirkpatrick, Newsom and My
ers, and to Mr. Speice until Wednes
day morning.
Mr. BOYD. Mr. President. I
move that when we adjourn tomor
row noon, it will be until Monday at
2 o'clock. Mr. BALLARD. Mr. President. I
do hope that motion will not prevail,
but that if we must have an adjourn
ment, it will be until such time as a
majority of those who have asked
leave of absence shall return.
Mr. ESTABROOK. Mr. President. I
think this proposition an injustice to
those living at a distance, that those
who live within easy range make this
adjournment every week, and leave
others to suck their fingers. My idea
in voting for the original proposition
was to enable those who lived at a
distance to spend Sunday with their
family and get back here by Tuesday.
Another thought, is this lost time,
is it time spent in vain? I do not
know how it is with others, but I

think we are submitting this matter
to the people now as far as you have
gone. You come back here with new
and better inspiration. It is not time
lost, but, in my opinion, time gained.
I am at work in my capacity as a
member of the- Constitutional conven
tion every hour that I am at home. I
am at work in the midst of my con
stituents, they ask me at every corner,
"what are you going to do in regard
to municipal bonds?" and every oth
er important proposition suggested
here, and the interview indicates
their views upon the subject. Thus
I become better prepared than before.
Mr. HINMAN. Mr. President. I
would like to ask what time 1 have to
confer with my constituents? If I
started today noon, by travelling day
ajnd night I could get there and
spend a part of Sunday, and have to
leave Sunday night to arrive here
Tuesday noon. My friend from Hall
(Mr. Abbott) is in the same predica
ment. We have got to travel 365
miles to get home and the same in
returning. Mr. ESTABROOK. I move to
amend that we adjourn from noon to
day until Tuesday noon.
Mr. PHILPOTT. I would like to
know before I vote, if there will be a
quorum left after the gentlemen leave
who have been granted leave of ab
sence? If so I shall vote aye.
Leave of Absence.
Messrs. Weaver, Mason, Boyd, and
Wilson asked for leave of absence un
til Tuesday noon.
Leave granted nem. con.
The PRESIDENT. The question is

ADJOURNMENT

551

Friday]

VIFQU AIN-GRIGGS— GRA Y

[July 21

on adjournment until Tuesday noon.
The "ayes" and "nays" were de
manded. The Secretary called the roll.
Mr. KIRKPATRICK (when his
name was called). Mr. President. I
ask to be excused from voting.
Leave not granted.
Mr. WOOLWORTH. (when his
name was called.) Mr. President. I
ask to be excused from voting.
Leave not granted.
The President announced the re
sult: "yeas," 25, "nays," 2 3, — as fol
lows: YEAS.

Boyd,

Parchin,

Cassell,

Philpott

Eaton,

Reynolds,

Estahrook,

Robinson,

G'bbs,

Scofield,

Griggs,

Shaff,

Hascall,

Spiece,

Kenaston,

Stevenson,

Majors,

Thomas,

Mason,

Towle,

Myers,

Weaver,

Neligh,

Wilson. — 2 5.

Newsom,

NAYS.

Abbott,

McCann,

Ballard,

Manderson,

Campbell,

Maxwell,

Curtis,

Moore,

Granger,

Price,

Gray,

Sprague,

Hinman,

Stewart.

Kilburn,

Thummel,

Kirkpatrick,

Vifquain,

Lake,

Wakeley,

Ley.

Woolworth. — 23.

Lyon,

ABSENT

AND NOT VOTING.

Grenell,

Tisdel,

Parker,

Mr. President.

Leave of Absence.
Mr. STEWART. I would ask leave
of absence until next Tuesday week.
Leave granted.
Mr. HINMAN. I would ask leave,
in case it should be necessary for me
to be absent, until Thursday noon.
Leave granted.Resolutions Again.
Mr. VIFQUAIN. I have a resolu
tion to offer.
The secretary read the resolution
as follows:
Resolved, That the members of
this convention, while on leave or
without leave of absence, or during
the adjournment will not be allowed
pay. Mr. GRIGGS. While I am in favor
of the main features of that resolu
tion, I do not think it is fair. There
are some who are not able to go
home. They are left here to pay
their board, and as they cannot go
home it is unjust to withhold their
pay. I would vote for a resolution
that all who are absent or on leave
should not receive pay.
Mr. GRAY. I think I can offer an
amendment which will satisfy the
gentleman from Gage (Mr. Griggs.)
I move to amend the resolution by in
serting, in its proper place "those
who voted for the adjournment."
Mr. STEVENSON. I offer an
amendment to the amendment —
"that those who voted against ad
journment be not allowed to vote on
this question." Adjournment Again.
Mr. TOWLE. I move to adjourn.

552

ADJOURNMENT

Friday]

TOWLE— VIFQUAIN -WEAVER

[July 21

The ayes and nays were demanded,
and the secretary proceeded to call
the roll.
The President announced the re
sult — yeas, 8, nays, 39, as follows:
YEAS.

Abbott,

Parchin,

Estabrook,

Scofield,

Neligh,

Speice,

Newsom,

Towle. — 8

NAYS.

Ballard,

Mason,

Boyd,

Manderson,

Campbell,

Maxwell,

Curtis,

t> Moore,

Eaton,

Myers,

Gibbs,

Philpott,

Granger,

Price,

Gray,

Reynolds,

Griggs,

Robinson,

Hascall,

Shaff,

Hinman,

Sprague,

Kenaston,

Stewart,

Kilburn

Thummel,

Kirkpatrick,

Thomas

Lake,

Vifquain,

Ley,

Wakeley,

Lyon,

Weaver,

McCann,

Wilson,

Majors.

Woolworth.

ABSENT

AND NOT VOTE

Grenell,

Stevenson,

Parker,

Tisdel,

-39.

So the motion to adjourn was not
agreed to. Postponement.
Mr. TOWLE. I move that the fur
ther consideration of the resolution
be postponed until next Tuesday, at
two o' clock.
Mr. VIFQUAIN. I move to make it
eleven o'clock today. It is now fif
teen minutes to that hour.
Mr. WEAVER. I move to indefi
nitely postpone the resolution.

The PRESIDENT. The motion is
to indefinitely postpone.
The ayes and noes were demanded.
The secretary proceeded to call the
roll. The President announced the re
sult: ayes, 19; nays, 29; as follows:
AYES.

Abbott,

Parchin,

Campbell,

Robinson,

Estabrook,

Scofield,

Gibbs,

Stevenson,

Granger,

Thummel,

Kenaston,

Towle,

Mason,

Wakeley,

Myers,

Weaver,

Neligh,

Wilson. — 19.

Newsom,

,

NAYS.

Ballard,

Majors,

Boyd,

Manderson,

Cassell,

Maxwell,

Curtis,

Moore.

Eaton,

Philpott,

Gray,

Price,

Griggs,

Reynolds,

Hascall,

Shaff,

Hinman,

Sprague,

Kenaston,

Spiece,

Kirkpatrick,

Stewart,

Lake,

Thomas,

Ley,

Vifquain,

Lyon,

Woolworth. — 29

McCann,

ABSENT

AND NOT VOTING.

Grenell,

Tisdel,

Parker,

So the motion to indefinitely post
pone was not agreed to.
Mr. SPIECE. I move to adjourn.
Motion to Re-Consider.
Mr. KENASTON. I move to re
consider the vote by which the con
vention decided , when it adjourned
today to do so until Tuesday next,
ADJOURNMENT

553

Friday ]

KENASTON-WOOLWORTH

[July 21

at two o'clock.
Mr. SPIECE. I move to adjourn.
Mr. TOWLE. I call for the origi
nal amendment.
The PRESIDENT. The motion to
adjourn is in order,
Mr. MAXWELL. I think not. The
gentleman from Cass (Mr. Kirkpat
rick) has the floor.
Mr. BALLARD. I made a motion
previously. The PRESIDENT. The question
is upon the adjournment.
The yeas and nays being demand
ed, the secretary proceeded to call the
roll. The President announced the re
sult — yeas, 23; nays, 25, as follows:

YEAS.

Abbott,
Ballard,
Boyd, Cassell,
Eaton, Estabrook,
Gibbs, Hascall,
Myers,'
Neligh, Newsom,

Campbell,
Curtis,Granger,Gray,Griggs,Hinman,Kenaston,Kilburn, Kirkpatrick
Lake,Ley,Lyon,McCann,

Parchin.
Reynolds, ¦
Robinson, Scofield,
Shaff,
Spiece,
Stevenson, Thomas,
Towle, Weaver,
Wilson. — 23.

NAYS.

Mason,
Manderson, Maxwell,
Moore, Philpott, Price, Sprague,Stewart,
Thummel,
Vifquain, Wakeley,
Woolworth. — 25.

ABSENT AND NOT VOTING.

So the motion to adjourn was not
agreed to.
Mr. KENASTON. Mr. President. I
move to reconsider the vote for ad
journment until Tuesday at 2 o'clock.
Mr. WOOLWORTH. Mr. Chair
man. Is not the motion of the gen
tleman from Saline (Mr. Vifquain)
before the house?
The CHAIRMAN. Yes sir, but the
motion to re-consider takes prece
dence, because it can be made but
once upon that day. The question
is upon the motion to re-consider the
vote by which we voted that when
we do adjourn today, we adjourn un
til Tuesday next, at 2 o'clock.
The ayes and nays being demanded
the secretary proceeded to call the
roll. The President announced the re
sult — ayes, 24; nays, 2 5 — as follows:

YEAS.

Grenell,
Parker,

T sdel,
Mr. President.

Abbott,
Cassell,Curtis,Gray,,Hinman,Kenaston,Kilburn, Kirkpatrick,
Lake,Ley,
Lyon,McCann,

Ballard,
Boyd,
Campbell, Eaton,Estabrook,Gibbs, Granger, Griggs, Hascall,
Mason,Myers,

Majors,
Manderson, Maxwell,Moore,
Price,Sprague, Stewart. Thummel,
Vifquain,Wakeley,
Wilson, Woolworth. -

-24.

NAYS.

Neligh,
Newsom, Parchin.
Philpott, Reynolds,
Robinson, Scofield,
Shaff, Spiece, Stevenson,
Thomas. — 2 5.

554

ADJOURNMENT— PRAYER

Tuesday]

CASS ELL— SPRAG UE

[July 25

Towle, Mr. President. — 25.
Weaver, ABSENT AND NOT VOTING.
Grenell, Tisdel. — 3.
Parker, So the motion to reconsider, was
not agreed to.
The PRESIDENT. The question
now is upon the postponement of the
resolution of the gentleman from
Saline (Mr. Vifquain) until Tues
day next at 2 o'clock.
Mr. CASSELL. Mr. Chairman. I
rise for explanation. There are sev
eral members here who have asked
leave of absence — I would ask if they
can vote?
The PRESIDENT. (Emphatical
ly) Yes, sir. This question has been
decided over and over again in the
affirmative — the books are full of it.
The motion is upon the postponement
of the resolution.
The convention divided, and the
motion was agreed to.
Mr. SPRAGUE. Mr. Chairman. I
think the members of the convention
are all satisfied that we can do no
business today, I therefore move that
we adjourn.
The ayes and nays being demanded
the secretary proceeded to call the
roll. The President announced the re
sult — ayes, 28; nays, 20 — as follows:
AYES.

Abbott,

Hinman,

Ballard,

Kenaston

Boyd,

Kilburn,

Cassell,

Majors,

Curtis,

Myers,

Estabrook,

JNeligh,

Gibbs,

Newsom,

Granger,

Parchin,

Griggs,

Reynolds

Robinson,

Stevenson,

Scofield,

Thomas,

Shaff,

Towle,

Sprague,

Weaver,

Spiece,

Wilson. — 28.

NAYS.

Campbell,

Manderson,

Eaton,

Maxwell,

Gray,

Moore,

Hascall,

Philpott,

Kirkpatrick,

Price,

Lake,

Stewart,

Ley,

Thummel,

Lyon.

Vifquain,

McCann,

Wakeley,

Mason,

Woolworth. — 20

ABSENT

AND NOT VOTING.

Grenell,

Tisdel,

Parker,

Mr. President.

So the convention, (at eleveno'clock
and seventeen minutes) adjourned.

TWENTY-SIXTH DAY.
Tuesday, July 25, 1871.
The Convention met at 2 o'clock
p. m., and was called to order by the
president. Prayer.
Prayer was offered by the chaplain
of the convention, Rev. L. B. Fifield,
as follows:
O Lord, our God, with confession
of sin and with prayer for pardon,
nay we honor thy law, thy goodness
and thy great love. May it please
Thee to give wisdom to all who are in
high places; to all who are builders
of state; to all who are makers of
law; and give to all people liberty
everywhere. Amen.
Leave of Absence.
Mr. LEY. Mr. President. I ask
leave of absence for Mr. Philpott and
Mr. Robinson until tomorrow morn
ing and for Mr. Price until tomorrow

PETITIONS— TAXATION— TEMPERANCE

555

Tuesday]

BALLARD— McCANN

[July 25

at two o'clock.
Leave granted. NEM. CON.
Mr. WEAVER. Mr. President. I
ask leave of absence for Mr. Parchin
and Mr. Towle until tomorrow noon.
Leave granted. NEM. CON.
Reading of the Journal.
The journal of the last day was
read and approved. Petitions.
Mr. BALLARD. Mr. President. I
have a petition from several citizens
of Washington county, which I wish
read and referred to committee No.
12 (State, County and Municipal In
debtedness). The Secretary read the petition as
follows: To the Hon. S. A. Strickland, Pres.
of the Constitutional Convention of
the state of Nebraska.
We, your petitioners would re
spectfully request your Honorable
body to insert such a clause in the
constitution as shall in your judg
ment prevent the taxing of counties,
cities, towns and precincts for the
benefit of railroads or other incorpo
rated monopolies.
Signed by Joseph Thompson and
fifty-nine others.
Referred to the committee on
State, County and Municipal Indebt
edness. Mr. McCANN. Mr. President. I
wish to present a petition from the
Grand Lodge of the Sons of Temper
ance of the State and ask that it be
referred to the special committee of
which Mr. Philpott is chairman.
The Secretary read the petition as
follows:

To the Honorable, the President
and members of the Constitutional
convention of Nebraska.
Gentlemen: — The undersigned,
your petitioners would respectfully
represent that we are the officers of
the Grand Division of the Sons of
Temperance of Nebraska, represent
ing as we do hundreds of among the
most respectable citizens of the state,
and feel confident we reflect the senti
ments of the majority of the members
of our subordinate divisions when we
respectfully, yet earnestly, pray that
your honorable body will insert a
clause in our constitution so that it
will require a majority of the qualified
voters in any precinct or ward in this
state, before persons are permitted to
vend intoxicating liquors to be used
as a beverage in such precinct or
ward. After mature deliberation we
are of the opinion that it would be
better to have it referred to the pre
cincts or wards instead of counties.
Our prayer being for carrying out a
cardinal principle in our form of gov
ernment, that the majority should
rule, we trust it will receive the fa
vorable consideration of your honor
able body. THOMAS GIBSON,
Grand Worthy Patriarch.
JOHN GRAY,
Grand Worthy Associate.
M. T. ANDERSON, «rand Serine.
W. N. McCANDLISH,
[SEAL"] Grand Treasurer.
JOHN BYERS, Grand Chaplain.
JOHN SHILL, Grand Conductor.
JAS. C. MAILER, Grand Sentinel.
Hall of North Omaha Division No. 5,
Sons of Temperance. Omaha, July 18, 1871.
At a regular meeting of North
Omaha Division No. 5, Sons of Tem
perance, held the date above mention
ed on motion the above petition of

556

WOMAN SUFFRAGE— RAILROAD BONDS

Tuesday]

ESTABROOK— MOORE

[July 25

our Grand Officers was unanimously
approved. WILLIAM TURTLE,
Worthy Partriarch.
GERRIT VANDENBURG,
Recording Secretary.
Hall of Union Division No. 1, Sons
of Temperance. Omaha, Neb., July 19, 1871.
This is to certify that at a regular
meeting of Union Division No. 1, Sons
of Temperance, held July 19, 1871,
on motion the above petition of our
Grand Officers was unanimously ap
proved. DAVID ROBINSON,
Worthy Patriarch.
H. W. BELLOWS,
Recording Scribe.
Referred to the special committee
on temperance.
Mr. ESTABROOK. Mr. President.
I have a petition.
The petition was read by the sec
retary as follows:
To the Constitutional Convention
of Nebraska.
The undersigned citizens of Oma
ha, Nebraska, respectfully ask that
the right of suffrage be conferred
upon women upon the same condi
tions and to the same extent as upon
men. Signed by Mrs. J. W. Pickard and
thirteen others.
Mr. ESTABROOK. I move the pe
tition be referred to the committee
on rights of Suffrage.
The motion was agreed to.
Mr. ESTABROOK. I have two
other petitions.
The Secretary read the petitions
as follows:
To the Constitutional Convention.
The undersigned citizens of Oma
ha, Nebraska, respectfully ask that
the rights of suffrage be conferred up

on women upon the same conditions
and to the same extent as upon men.
Dated June, 1871.
Signed Mrs. H. A. Davis and twen
ty-one others.
To the Constitutional Convention
of Nebraska.
The undersigned citizens of Omaha
ha, Nebraska, respectfully ask that
the right of suffrage be conferred
upon women upon the same condi
tions, and to the same extent as up
on men.
Dated June, 1871.
Signed by Mrs. D. C. Sutpher and
80 others.
Mr. ESTABROOK. Mr. President.
I move the reference of the petitions
to the Committee on Rights of Suff-
age. The motion was agreed to.
Mr. MOORE. Mr. President. I
have a petition.
To the Honorable, the State Con
vention, Lincoln, Nebraska.
We the undersigned citizens of the
county of York, believing the people
of the respect. ve counties to be the
best judges of their own wants re
spectfully petition your honorable
body to leave them free to exercise
their own pleasure in voting for or
rejecting propositions to grant bonds
to railroad companies.
Signed by J. R. Gilmore and 42
others. Mr. MOORE. I move its reference
to the Committee on State, County
and Municipal Indebtedness.
The motion was agreed to.
Committee of the Whole.
Mr. MYERS. Mr. President. I
move that the convention resolve
itself into Committee of the Whole
for the purpose of considering the re
port of the Legislative Committee.
The motion was agreed to, so the

ENACTMENT OF LAWS

557

Tuesday]

MYERS— WOOLWORTH— HASCALL

[July 25

Convention resolved itself into Com
mittee of the Whole, Mr. Scofield in
in the chair.
The CHAIRMAN. The Commit-
mittee now has before it section one
of the article entitled Legislative.
An amendment has been proposed by
the gentleman from Douglas (Mr.
Hascall) to strike out the word
"county,' ,in fifth line, and insert
"representative district." An amend
ment has also been offered by the
gentleman from Otoe (Mr. Mason)
to strike out the words "citizens of
each county respectively" in fourth
and fifth lines, and insert the words
"electors of the state."
Mr. MYERS. Mr. Chairman. I
would ask the gentleman from Otoe
to withdraw his amendment in order
that I may offer an amendment which
will reach the whole subject, and be
in accordance with the understanding
of the committee.
Mr. MASON. Mr. Chairman. With
the consent of my second I withdraw
the amendment.
Mr. MYERS. Mr. Chairman. I
move that the word "representatives"
in the second line be stricken out.
The motion was agreed to.
Mr. WOOLWORTH. Mr. Chair
man. I move that the word "the"
in the first line be stricken out and
"a" inserted.
The motion was agreed to.
Mr. WOOLWORTH. Mr. Chair
man. I move the adoption of the
section as amended.
The motion was agreed to.
The Chairman read the next sec
tion as follows:

Sec. 2. The enacting clause of all
bills shall be: "Be it enacted by the
legislature of the state of. Nebraska,"
and no law shall be enacted except by
bill. No bill shall be passed unless by
the assent of a majority of all the
members elected to each branch of
the legislature, and the question up
on the final passage shall be taken
immediately upon its last reading,
and the yeas and nays entered upon
the journal.
No bill which may be passed by
the legislature shall embrace more
than one subject, and that shall be
expressed plainly and clearly in the
title. Mr. MYERS. Mr. Chairman. I
move to strike out in seventh line
the words "which may be passed by
the legislature" and in eighth line
the words "plainly and clearly." The
committee have had this matter un
der consideration, since it has been
before the Committee of the Whole,
and I make this amendment at the
suggestion of the committee. They
do not think it advisable to draw
the entire bill, as we could not agree
upon many of the suggestions pre
sented. I however, am perfectly
content to let one of those words re
main. I would prefer "clearly." And
I modify my amendment to "shall be
expressed clearly in the title."
Mr. HASCALL. In the provisions
of the New York constitution on the
subject, commencing at the seventh
line of the article as reported it would
be better in my judgment to read this
way: "No law shall • embrace more
than one subject which shall be
named in the title; but if the title
contain only one subject the law shall
be valid as to that, and void as to all
other subjects." I think that is a

558

TITLES AND AMENDMENTS

Tuesday]

HASCALL— MYERS— WAKELEY

[July 25

better expression than the one used
here; and I therefore move to amend
it by inserting the words I have read,
in the place of those reported in the
Dill. Mr. WOOLWORTH. I would like
the word "clearly" myself, but I am
not very tenacious about it.
Mr. HASCALL. At the suggestion
of the chairman of the committee,
and as there is no provision contained
in the report that is contained in the
latter part of the section, I will add
what follows, so that it will read:
"No law shall embrace more than
one subject which shall be named in
the title; but if the title contain only
one subject, the law shall be valid
as to that, and void as to all other
subjects. No law shall be revised,
altered or amended by reference to its
title only, but the act revised or the
section or sections thereof, as altered
or amended, shall be re-enacted and
published at length."
Mr. WOOLWORTH. Does the gen
tleman propose to offer that as a
separate section?
Mr. HASCALL. I am not particu
lar. By striking out all that relates
to it in the second section and adopt
ing an additional section which gov
erns the case.
Mr. MYERS. That will be satis
factory to me.
The CHAIRMAN. Will the gentle
man from Douglas state his motion
again? Mr. HASCALL. That all after the
word "no," in the seventh line be
stricken out, and the amendment sent
up by me be adopted as a separate
section. The amendment was agreed to.

Mr. WAKELEY. Mr. Chairman. I
move to add after the word "journal"
in the sixth line, the following: "only
one bill shall be put upon its passage
at the same time."
Mr. MYERS. Mr. Chairman. I
would like to know the object of this
amendment. I do not know how two
bills could be passed at one time,
unless they were embraced in the
same bill, and then they would still
constitute, the same bill.
Mr. WAKELEY. Mr. Chairman.
I will admit that, without reflection,
such an amendment would seem un
necessary. But when the gentleman
says he would like to know how two
bills could be passed at one time, I
answer him as General Estabrook
answered some one the other day,
I think it was Gen. Manderson, that
someone didn't see how the justice of
the peace could try a slander suit,
but he did try it. Now, sir, it is a
fact in legislation, that in some States
of this Union, an entire batch of bills
have been put on their passage at
once. I know, that it has been done.
I do not know but it is fair to presume
a legislature would never do that.
But I merely desire to call attention
to it. I have heard of it being done
in Wisconsin and also in Illinois.
Mr. MYERS. Mr. Chairman. There
is another clause in this bill which
requires that "each bill pending in
the legislature shall be read on sepa
rate days." I am not aware of leg
islatures passing bills by omnibus
loads. I do not see how it can be
practiced if the ordinary rules which
govern parliamentary bodies are en
forced in those bodies. I have not.

MODE OF PASSING BILLS

559

Tuesday]

STRICKLAND— ESTABROOK

[July 25

in all my existence, it may be limited,
known of a legislature passing more
than one at a time. They have, in
some states, a private calendar, where
bills are read in the forenoon at
length, and in the afternoon simply
the title, and the clerk reads the ti
tle of each bill, which has been read
in the forenoon, and then those bills
are passed on their title. I have
known of eighty bills passing in a
single afternoon; but they were pri
vate bills; no public bills could pass
on that calendar. It was done to fa
cilitate business. Those private bills
were simply enabling acts — remedial
acts, and bills of that kind, incident
to Pennsylvania. I do not see the
necessity of adopting the amendment
of my colleague.
Mr. STRICKLAND. I would have
to enquire how that .could be done.
It would be putting two proper ques
tions to a legislative hodv at the
same time. I cannot see what could
be done, unless he explains it to me.
It might be in different stages. It is
unnecessary to say you could not
pass a bill one moment and another
the next.
Mr. ESTABROOK. I was in hopes
to get a little light on the subject
from the honorable president, be
cause if I am not mistaken, sir, about
the time he used to figure conspicu
ously in the legislative matters of the
state, just that thing he says cannot
be done was "did." And I have
known it to be done. Here is a
pigeon hole full of bills; the clerk
Hands them up, they are read by their
title, and then put on their passage,
or whatever stage of progress is in
order, and the whole omnibus load

put on their passage. That was done
in the early days of this territory,
and in view of that style of procedure
which has come under my own obser
vation, and the fact that it may be
done, as it is only a word, to add,
as a preventative, it seems to me the
amendment ought to prevail.
Mr. STRICKLAND. Mr. President.
I have had the honor of being con
nected with several legislative bodies
and never heard of the like in my life
in any body where I was sitting, I
don't see how it could occur. It is
an unheard of thing to me. It seems
to me no legislature that ever sat
would allow two or three matters to
come up at one time to be put
through and ground through the hop
per like wheat. The books are full
of this; that things are often done,
in legislative bodies, by common con
sent. It is true that hundreds of bills
are passed by legislatures, in closing
up a session^ and by congress also,
without the ayes and nays being
taken, but are passed by common
consent — no objection being had. It
is done in order to dispatch business.
It is necessary that when consider
ing propositions when no one objects,
they go through at once. If my two
friends on the other side of the house
can cite me a single instance where
a legislative body has passed two
bills at the same time or would dare
to pick up two subject matters at the
same time, I would like to have
them do it. Suppose the legislature
were considering two bills; one is
for the relief of John Smith, who may
have rendered the state some service,
and the other is a bill for an appro
priation, how could both be put upon

560

MODE OF PASSING BILLS

Tuesday]

LAKE-ESTABROOK— MAXWELL

[July 25

their passage at once? I don't know
but it is possible for such an anomaly
to exist, but I certainly never heard
of two bills or two matters being
passed upon at the same time by a
deliberative body. It would be as
great an anomaly as two heads to be
growing from the shoulders of my
friend from Johnson (Mr. Wilson.)
Mr. LAKE. Mr. Chairman. It
seems to me that the section as it
now stands, renders the amendment
unnecessary. It seems to me it is
hardly possible that laws, or bills
should meet with the unanimous con
sent of the whole legislature accord
ing to this, the ayes and nays must be
called after the reading of the bill.
It would hardly be possible for all the
members to agree. It would result,
necessarily, in a division of the
question. I think that the section as
it now stands is a sufficient protec
tion against procedure which it is
proposed to guard against in this
amendment. Mr. MYERS. Mr. Chairman. I
would like to call the attention of
the members of the convention to the
first part of Sec. 29, it reads as fol
lows: "Each bill and concurrent
resolution shall be read at large in
three different days in each house."
No one can introduce two bills in a
legislative body at once.
Mr. ESTABROOK. Mr. Chairman.
I can prove that it can be done, and
has been done in our Territory. In
order to ridicule a proposition which
was being passed a Mr. Goodwin in
troduced a bill in which he was giv
en a charter to establish ferries and
'u-idges at all points along the Elk-

horn river where they were not al
ready established, and the bill was
passed. So that today Mr. Goodwin
and his heirs have a charter to locate
ferries or bridges at all points along
this stream where they are not al
ready established.
Mr. MAXWELL. Mr. Chairman.
It does seem to me that such a state
of facts as that referred to by the
gentleman from Douglas, (Mr. Esta
brook) cannot occur. In this pro
vision the ayes and nays must be
called, so that it is impossible to
pass two bills at once. In the laws of
our Territory, there was no provision
of that kind. The ayes and nays were
not required unless some member
called for them. It seems to me the
provision of my friend from Douglas
is like adding a fifth wheel to a wag
on. Mr. LAKE. Mr. Chairman. I
would like to have my colleague ex
plain to this convention how the dif
ficulty could occur under this section?
The section provides that the ques
tion upon the passage of a bill shall
be had immediately upon its last
reading. Now with a constitutional
provision of that kind could the sen
ate or house of representatives take
up and read another bill? Here is
a safeguard which is ample, and it
provides that no bill should be passed
without the assent of a majority of
all the members. I am in favor of
throwing the safeguards that are nec
essary around the action of the legis
lature, but I am opposed to useless
amendments. Mr. WAKELEY. Mr. Chairman.
I do not desire to take up any fur-

LEGISLATIVE APPORTIONMENT

561

Tuesday]

WAKELEY— STRICKLAND— MAXWELL

[July 25

ther time in explaining the object of
my amendment. I do certainly admit
that under this section it will allow
more than one bill to be put upon its
passage at one time. I have no sort
of concern about what is done with the
amendment; but in as much as the
gentleman on the floor have stated
that such mischief could[r.ot]occur. I
will state for myself that I have seen
in a state, not having perhaps the leg
islative rule that we have, a large
batch of bills read by their titles and
the speaker would rise in his place
and holding up the bills and saying
"these bills having been severally
read by their titles and put upon their
passage the question is upon their
adoption" and the vote is taken.
Mr. LAKE. Was that in a state
where the "ayes" and "nays" shall
be taken?
Mr. WAKELEY. No sir, it was not,
and I don't see that there would be
any difficulty of taking the "ayes"
and "nays" in the same way.
Mr. LAKE. I would like to ask
the gentleman how he would get over
the words in this section "immediate
ly after the reading of the bill."
Mr. WAKELEY. I don't know as
it is likely under that to occur; but I
think this would be a safe provision
to put in and it would do no harm.
The CHAIRMAN. The question is
on the amendment offered by the
gentleman from Douglas (Mr. Wake
ley. The amendment was not agreed to.
Mr. STRICKLAND. I move the
adoption of the section.
The section was adopted.
36

The Chairman read the next sec
tion as follows:
Sec. 3. An enumeration of the
inhabitants of the state shall be ta
ken under the direction of the legis
lature in the year one thousand eight
hundred and seventy-five, and at the
end of every ten years thereafter, and
the districts shall be altered by the
legislature at the first session after
the return of every enumeration so
that each senatorial district shall con
tain, as nearly as may be, an equal
number of inhabitants, excluding
aliens and Indians not taxed, and
shall remain unaltered until the re
turn of another enumeration, and
shall at all times consist of conti
guous territory, and no county shall
be divided in the formation of a sen
ate district.
The members of the house of rep
resentatives shall be apportioned
among the several counties of the
state by the legislature, as nearly as
may be, according to the number of
their respective inhabitants, exclud
ing aliens and Indians not taxed,
and shall be chosen by districts.
The number of representatives
shall, at the several periods of mak
ing such enumeration, be fixed by the
legislature and apportioned among
the several counties according to the
number of inhabitants in each.
Mr. MAXWELL. Mr. Chairman. I
move to strike out all of the section
after' the word "thereafter" in the
third line, and inserting in lieu there
of the following:
"And at their first session after
such enumeration, and also after
each enumeration made by the au
thority of the United States, the leg
islature shall apportion and district
anew the members of the senate and
house of representatives, according
to the number of inhabitants, exclud
ing Indians not taxed, and soldiers

562

GRAY'S APPORTIONMENT PLAN

Tuesday]

GRAY

[July 25

and officers of the United States ar
my and navy."
Mr. GRAY. Mr. Chairman. I have
drawn a substitute for the entire sec
tion which I will read.
At the first session of the legisla
ture after the adoption of this consti
tution and every two years there
after the legislature shall apportion
legislative representation by the fol
lowing rule, to-wit:
As a general rule each organized
¦county shall be a representative
-district, in which one or more repre
sentatives shall be elected.
The maximum number of inhabi
tants, for a member of the house of
representatives shall be ascertained
by dividing the whole number of in
habitants in the state by the whole
number of members of the house of
representatives and the quotient shall
he the maximum; each county having
one-half or more of the maximum
number of inhabitants, ascertained
as aforesaid, shall have one represen
tative, each county shall have one
representative for the maximum num
ber of inhabitants and one represen
tative for an excess of one-half or
more of the maximum number.
Those counties having less than one
half of the maximum number shall
be included in representative dis
tricts, to consist of two or more coun
ties of about equal number of in
habitants and of contiguous territory
and such districts shall have one rep
resentative. The maximum number of inhabi
tants for senatorial (representation
shall be ascertained by dividing the
whole number of inhabitants in the
state by the whole number of mem
bers of the senate and the quotient
shall be the maximum for senatorial
representation. Each county having one-half or
more of such maximum shall have
one senator, each county shall have
one senator for such maximum num-
her and one for an excess of one-half

or more of such maximum.
Those counties not having one-
half of such maximum shall be in
cluded in senatorial districts, to con
sist of two or more counties of about
an equal number of inhabitants and
of contiguous territory and such dis
trict shall have one senator.
There shall be no float districts
nor shall counties be included in dis
tricts for either representative or
senatorial representation of a dis-
proportional number of inhabitants.
When no enumeration of the in
habitants of the state shall have been
taken by an actual census within
one year and a half previous to any
apportionment, as hereinafter pro
vided then the number of inhabitants.
shall be ascertained by allowing five
inhabitants for each vote cast at the
last election for members of the
house of representatives just preced
ing the apportionment.
The number of representatives and
of senators shall be fixed by the leg
islature at the time of each appor
tionment. I move the adoption of the substi
tute. Mr. GRAY. Mr. Chairman. It is
proper that I should explain the sub
stitute. One of the leading objects
I had in view in drafting it was to
find some way to avoid the present
and past inconvenience growing out
of our peculiar way of making legis
lative apportionments. For instance,
it has been quite common within the
last few years in this state, for the
legislature in making an apportion
ment of legislative representatives to
create its districts, both repre
sentative and senatorial, so that
one county with a very large popula
tion, almost enough for a represen
tative would be included in a dis
trict with a very small county, having

GRAY'S APPORTIONMENT PLAN

563

Tuesday]

GRAY

[July 25

perhaps less than one-fourth the num
ber of inhabitants. The result of
such an apportionment has been, has
ahown that the county with the less
er proportion of inhabitants gets no
actual representation. It has been
quite common to create what has here
been known and denominated as
float districts. For instance, take
the float district which includes
Douglas county with three or four
smaller counties. Perhaps the ex
cess that entitles Douglas county to a
portion of that float district may be
less for Douglas than in smaller
counties, yet it has the power to take
and hold the representative, and by
this rule the representative from that
float district is in fact a representa
tive of Douglas county, and not of
any other of the counties. It is the
same with the other districts, if you
place a large county with a small one
in one district, it enables the larger
county to have the representative,
and the smaller county gets no repre
sentation at all. The trouble is that
such representation as we had here
tofore is not impartial but very par
tial, and the benefits, if benefits they
be, are given to the stronger counties,
while the weaker ones are left with
out representation. It seems to me
that as an act of justice we ought to
find some rule by which to make the
legislative apportionments in this
state, so that those weaker counties
would have some kind of representa
tion. Go out to the west of the state
where counties on an average have
an average of a hundred voters, per
haps less, and all have about an
equal number of inhabitants, put
them together into a representative

district, each county will have an
equal voice in that district, and have
as near a fair representation as it is
possible to give them. I suppose it
would be utterly impossible to give
an exactly even representation, but
we can certainly get nearer to it than
we have heretofore. That was the
object I had in view in drawing the
substitute. The proposition contain
ed in the substitute is to take the
whole number of inhabitants in the
state, then ascertain the number of
representatives for that given time,
which will have to be fixed either
directly by the constitution or by the
legislature. Take that county which
has one, two or three thousand, it
will have one representative, twice
that number two representatives.
Take the counties with less than one-
half, group them together in a dis
trict and give that district one mem
ber, and the same rule with reference
to senatorial districts. By the ar
rangement there would be some coun
ties that will have more than one
senator, some more than one repre
sentative, but so far as I am able to
judge, it will not be a very popular
theory to undertake to divide the
counties. I do not believe there is
anybody in my county who would like
to have it divided into separate dis
tricts. I may say Mr. Chairman,
that I have drafted the section some
what hastily and it may be its verbi
age is defective, it may be that the
apportionments provided for in the
substitute come oftener than is pro
per or necessary. I ' am willing it
should be changed to suit members,
but I want to see every part of the
state fairly and justly represented

564

LAKE OPPOSES GRAY'S PLAN

Tuesday]

ABBOTT— LAKE

[July 25

in all legislative bodies hereafter.
Mr. ABBOTT. Mr. Chairman. I
move to strike out the entire section.
I do not think this committee of the
Whole have anything to do with it
until after the Committee on Appor
tionment report and the question of
minority representation is decided. It
will find its appropriate place in the
legislative article when it comes intq
the hands of the Committee on Revis
ion and Adjustment.
Mr. LAKE. Mr. Chairman. I can
say for one I am opposed to the sub
stitute offered by the gentleman from
Dodge (Mr. Gray). In the first place
I think it is altogether too lengthy,
secondly, it is better to leave this
matter of the apportionment entire
ly to the legislature. If we should
lay down a rule which should be
found to be oppressive, and not to
work well, it must be adhered to until
there could be an amendment to the
constitution. I have no doubt the
committee on legislation will adopt a
just rule of apportionment, and
such a rule as will operate favorably
to all portions of the state alike. We
may, perhaps, lay down some general
rule as is provided in the section as
it came from the committee, that the
, representative and senatorial dis
tricts shall be composed of con-
iguous territory, that counties shall
not be divided in the forma
tion of those districts, and that they
shall contain, as nearly as possible
an equal number of inhabitants. A
general rule of that kind, is a suffici
ent safeguard, in my opinion. That
is the same provision, substantially
although, perhaps, not so fully as in
our old constitution. I think the

provision we find in the report of the
committee better than the amend
ment of the gentleman from Cass.
I prefer either the one • from the
hands of the committee or that of
fered by the gentleman from Cass, to
the one which has been offered as a
substitute by the gentleman from
Dodge (Mr. Gray.) I am opposed to-
laying down any rule which shall be
binding on the legislature in this re
gard. I do not see that the substi
tute offered by the gentleman from
Dodge obviates one of the difficulties;
he has spoken of — that is the union
of several counties into one district,
in what has -heretofore been termed
a float district. His substitute pro
vides that those which have a frac
tion less than one-half shall be
grouped together in several districts,
after theyi have their apportionment,
by giving them the whole number
they are entitled to individually, to
be grouped together for the purpose
of giving a certain number of them a
representative. Mr. GRAY. If you will read care
fully the substitute you will see that
no such thing is attempted to be
done. It is only those counties that.
have actually less than a maximum
that can be included in a district.
with others.
Mr. LAKE. I may have misunder
stood the section, and that is
one objection — it is so lengthy.
If I misunderstood that provision of
the gentleman's amendment, of
course I have nothing to say in re
spect to that. As far as float dis
tricts are concerned, judging from the
past in this state, they have not work
ed disadvantageous^ to those coun-

LEGISLATIVE APPORTIONMENT

565

Tuesday]

LAKE-GRAY

[July 25

ties having the least number of in
habitants. I think gentlemen who
have been members of legislative
bodies in this state, not only since we
have been a state but during our ter
ritorial existence, upon examination,
will find, in a majority of cases, that
a float has been given one of the out
side counties. I recollect that has
been the case with respect to Lancas
ter county. For several years the
float which was given to Cass, Cass
being the most populous county, con
ceded the float to some other county.
I recollect that Mr. Cadman repre
sented the float district one or more
times in the territorial legislature,
and, perhaps, in the state legislature;
and I recollect, in the majority of
instances, that the float has been giv
en to one of the weaker counties. We
find that has been the case last win
ter. So that, judging from the past,
the way it has been operated under
' our former constitution, there is no
great hardship in leaving it to the
legislature. At any rate, I am in fa
vor of leaving to the legislature
the fixing of any rule which
shall be satisfactory. No legislature
will do wrong to any one of the coun
ties of the state. Now, what is pro
vided in this section which came from
the committee. "An enumeration of
the inhabitants of the state shall be
taken in 1875." That fixes a rule
which shall be a basis for the legis
lature to form these districts upon
once in five years, we having an enu
meration by the state authorities in
1875 and every ten years thereafter,
and in 1880 and thereafter an enu
meration by the U. S. authorities.
And it goes on further to provide

that "the districts shall be so altered
by the legislature at the first session
after the return of every enumeration
that each senatorial district shall
contain, as nearly as may be, an
equal number of inhabitants, exclud
ing aliens and Indians not taxed, and
shall remain unaltered until the re
turn of another enumeration, and
shall , at all times, consist of conti
guous territory, and no county shall
be divided in the formation of a sen
ate district."
I am not altogether certain but I
should prefer that the substance of
this section, and, perhaps, of the
next clause of the section should be
couched in somewhat different lan
guage; but that the substance of this
section should remain as it is — that
all the restraint that shall be put
upon the legislature should be that
which is contained in this section;
that they should make the enumera
tion once in five years, and that the
districts should be of contiguous ter
ritory and have the population as
nearly equal as possible.
Mr. STEWART. Mr. Chairman —
Mr. ABBOTT. I insist on my mo
tion. I think it has precedence.
Mr. STRICKLAND. I understand
the motion to be to strike out this
section. Mr. GRAY. I desire to say that my
motion was not only to strike out
the section, but to substitute. There
is another motion to strike out that
can take precedence to my motion.
I am willing the question should be
divided. Mr. ABBOTT. Then I move a di
vision of the question.

566

"FLOAT" DISTRICTS

Tuesday]

STEWART— BALLARD

[July 25

Mr. STEWART. I was going to
say a few words in reply to Judge
Lake in regard to float representa
tion. He seems to think it has not
worked any hardships in this state.
I wish to refer him to one instance
why I do not wish this left to the leg
islature. In myi own district the sen
atorial district is composed of Otoe,
Johnson and Pawnee. The popula
tion of Otoe is 12,345, leaving an
excess of 2,880. This excess is placed
tp Pawnee and Johnson counties.
Pawnee has 4,180 and Johnson 3,-
42 G, making a total of 7,606, giving
virtually, two senators to a popula
tion of 12,000. That is one reason
I am opposed to leaving this to the
legislature. I shall stand here, if
need be, for the next six months, be
fore I will submit to anything being
adopted which will permit the legis
lature to make this unjust apportion
ment. Mr. BALLARD. I do not know,
sir, that I am altogether in favor of
Mr. Gray's* substitute, but I certainly
am in favor of the spirit and intent
of it, as I understand him. I am op
posed to the word "float," with all
its meaning in reference to senators
and representatives. I know, sir,
injustice has been done to some peo
ple in the state of Nebraska. In the
first place I am opposed because my
constituency is, in the second place,
because of the injustice I know has
been done. I wish the bounds of the
legislature to be fixed in this consti
tution as far as districts are con
cerned. I am willing to go further
than Mr. Gray. I am willing to have
Washington county divided if it be
comes necessary rather than have a

float. How has it been? When it
was ascertained by the people of
Washington county last fall that
Washington, Douglas and Dodge,
and other counties, had a float, they
said, Douglas would get it; they were
certain she would get it. We are
well satisfied with the gentleman who
represents us, but we knew nothing
about him then. I say make small
representative districts, and let the
people come together and elect those
whom they want to serve them. In
smaller districts, the people are bet
ter acquainted with the men who rep
resent them.
The CHAIRMAN. • The question is
upon the motion to strike out section
Three. The motion agreed to.
Mr. HASCALL. Mr. Chairman.
The gentleman from Washington
(Mr. Ballard) says he is in favor of
small representative districts. Now
the substitute offered by the gentle
men from Dodge (Mr. Gray) does not
provide for that. I believe, it makes
counties, districts, I am in favor of
doing away with float districts, but
I don't think the substitute accom
plishes that end.
Mr. GRAY. Mr. Chairman. This
substitute proposes to do away with
float representatives. The substi-
stitute does not propose to divide
counties. It does propose to make
districts out of counties when it can
be done. It does not propose to in
clude in one district any two coun
ties where one of these counties is
large enough to be entitled to a rep
resentative. Take the county of
Washington, for instance, it would

MAXWELL'S PLAN

567

Tuesday]

STRICKLAND-MAXWELL— NEWSOM

[July 25

make a district of itself. It is impos
sible for the legislature to include
Washington county with any other
county under this substitute.
Mr STRICKLAND. Mr. Chair
man. It is necessary something
should be inserted in the place of the
section we have just voted to strike
out. I apprehend the necessity of
empowering the legislature to make
these apportionments, will be seen.
I have no proposition to offer, but
merely call the attention of the mem
bers to this point.
Mr. MAXWELL. Mr. Chairman. I
am in favor of anything which does
away with float districts. It might
be questioned, however, whether
this be the place to provide for the
districts. I think it is not. I think
some other section should be insert
ed afterwards, in the constitution,
as to the character of the districts.
Now, Mr. Chairman, in order to bring
the matter before the convention, I
move to insert this in the place of
section 3.
"The legislature shall provide by
law for an enumeration of the inhabi
tants of the state in the year one
thousand eight hundred and seventy-
five and at the end of every ten
years thereafter; and at their first
session after such enumeration, and
also after each enumeration made by»
the authority of the United States,
the legislature shall apportion and
district anew the members of the
Senate and House of Representatives,
according to the number of inhabi
tants, excluding Indians not taxed,
and soldiers and officers of the United
States army and navy."
Mr. GRAY. Mr. Chairman. I will
have to call the gentleman to order.
The question before the house is the

striking out of this section and the
adoption of the substitute offered by
myself. The question was divided
and the motion put to strike out Sec
tion 3. It seems to me nothing more
can be done until the balance of the
question is put. I insist that the bal
ance of the question should be put.
The CHAIRMAN. The question
is upon the adoption of the substi
tute. Mr. NEWSOM. Mr. Chairman.
The substitute offered by the gentle
men from Dodge (Mr. Gray) is a
complicated thing. I don't understand
it, nor do I believe any gentleman
here understands it, but the gentle
man from Dodge. I would like to
have it printed, and have it in shape,
so that I can understand it. To obvi
ate this difficulty the substitute may
be referred to the committee on ap
portionment. It may then be printed
so that members could act upon it
advisedly. We are now engrafting
upon this constitution a provision to
stand. Mr. ESTABROOK. Mr. Chairman.
I move that the subject be referred
back to the house, with a recommen
dation it be referred to the commit
tee on legislative apportionment.
Mr. GRAY. Mr. Chairman. I
would like to inquire whether any
motion, or debate is in order until
this question is voted upon.
The CHAIRMAN. The motion to
strike out —
Mr. ESTABROOK. Mr. Chairman.
I did not move that the committee
rise, but that this substitute be report
ed to the house with a recommenda
tion it be referred to the committee

568

MAXWELL'S SUBSTITUTE

Tuesday]

GRAY— McC ANN-MAX WELL

[July 25

on legislative apportionment.
Mr. STRICKLAND Mr. Chairman.
I regard the question is upon the sub
stitute offered by the gentleman from
Dodge (Mr. Gray). I don't think
anything else can come up between.
(" 'Question," "question.")
• The CHAIRMAN. The chair so
decides. Mr. STRICKLAND. Mr. Chair
man. Before the vote is taken, I
ask to be excused from voting.
Mr. GRAY. Mr. Chairman. I
would like to say a few words.
"Leave," "leave.")
Of course I can't withstand the
judgment of so many gentlemen who
don't seem to understand the ques
tion. Still I desire to say that the
draft is no longer, in my opinion,
than was necessary in order to en
graft the proposition.
Mr. MYERS. Mr. Chairman. If
the substitute of the gentleman from
Dodge (Mr. Gray) as now proposed,
is voted down, then the amendment
of the gentleman from Cass (Mr.
Maxwell) is in order.
Mr/ WILSON. Mr. Chairman. I
ask to be excused from voting.
The CHAIRMAN. The question is
upon the adoption of the substitute.
The committee divided, and the
substitute was not agreed to.
Mr. McCANN. Mr. Chairman. I
now ask the gentleman from Cass
(Mr Maxwell) to prefix to the
amendment offered by him the fol
lowing words:
"The legislature shall provide by
law for the enumeration of the in

habitants of the state in the year
1872 and in 1875, and every ten
year thereafter."
Mr. MAXWELL. Mr. Chairman.
With the amendment as suggested
by the gentleman from Otoe (Mr. Mc
Cann) I now propose a substitute
for the third section which has been
stricken out.
The Chairman read the substitute
as follows:
"The legislature shall provide by
law for an enumeration of the inhabi
tants of the state in the year 1872,
and 1875 and every ten years there
after, and 'at their first session after
such enumeration, and also after
each enumeration made by the au
thority of the United States, the leg
islature shall apportion and district
anew the members of the senate and
House of Representatives, according
to the number of inhabitants, exclud
ing Indians not taxed, and soldiers
and officers of the United States ar
my and navy."
Mr. BALLARD. Mr. Chairman. I
hope the substitute will not prevail,
for it does not fix the float matter
but leaves it to the legislature to fix
as they please.
Mr. WAKELEY. Mr. Chairman. I
think there is some misunderstanding
here. I don't think the insertion of
this affects the matter of apportion
ment. It seems to me it is better to
insert the section without any ref-
ference to that but leave it to the
committee on apportionment. I think
it will expedite the business of the
committee if we adopt this substitute.
It only provides the times when an
apportionment shall be made by the
legislature. The language, of the
substitute is general and does not tie
us to any particular manner of ap-

MOORE'S SUBSTITUTE

569

Tuesday]

H A S C ALL— MOORE— GR A Y

[July 25

portionment in the state.
Mr. HASCALL. Mr. Chairman. I
move to strike out that portion of the
¦substitute that provides for an enu
meration in 1872. The reason I do
that is that there is a large expense
connected with an enumeration by the
state, and this convention has the
¦power to apportion the state until the
year 1875. If necessary we can pro
vide that in case any new counties
organized have a population entitled
to a representative, that one might
be elected and sent up to the legis
lature where he shall have a seat. It
would be folly for us to proceed to ap
portion the state and the next year
go on to take an enumeration of the
-state. We can leave this so the leg
islature can provide for an enumer
ation once in five years if the rapid
.growth of our state will require it.
Mr. McCANN. Mr. Chairman. I
would accept that amendment to
strike out that part of the substitute
providing for an enumeration in
1872, if the gentleman from Cass
(Mr. Maxwell) is willing.
Mr. MAXWELL. I accept the
amendment. Mr. MOORE. Mr. Chairman.
I have a substitute to offer, if it is in
order. The Chairman read the substitute
as follows:
. "An enumeration of the inhabi
tants of the state shall be taken under
the direction of the legislature in the
year 1872 and 1875 and every ten
years thereafter and this enumera
tion together with the census that
may be taken under the direction of
congress of the United States, shall
serve as a basis of representation in

both Houses of the legislature."
Mr. Moore. I move the adoption
of the .substitute.
Mr. GRAY. Mr. Chairman. It
is quite apparent that we are mak
ing no progress on this section, there
fore I move you that this whole sub
ject matter of legislative apportion
ment be referred to the appropriate
standing committee on legislative ap
portionment, that is that when the
committee rise that it be reported
back with the recommendation that
it be so referred. I think that is just
what a majority of this committee de
sire. That is all that is proposed by
this section — the subject matter of
the division of districts, as has been
before remarked is to be left to the
future consideration of this body and
it may be deferred until we get a re
port of the appropriate committee,
the committee which has been charg
ed with the consideration of the sub
ject of representative districts. . It
seems to me we can go on with this
because there is no objection, I
take it to the making of an enumer
ation as indicated here, as also di
viding the state into districts anew
once in five years.
Mr MYERS. Mr. Chairman. It
seems to me that we ought to clothe
the legislature with power to make
this enumeration separate and dis
tinct from that of the United States
and that we ought to make it in the
intermediate cycle of time, five years.
What is the necessity of an enumera
tion, what is the object of a state
enumeration separate from that of
the United States, except to furnish
the legislature every five years an op-

'570

STATE CENSUS

Tuesday]

MYERS-MA X WELL-MOORE

[July 25-

portunity of apportioning the state?
The apportionment of the United
States is taken for general purposes,
to ascertain the number of people,
their resources, their advancement in
arts, commerce, trade, manufacture
and agriculture, but the state enu
meration takes no such object in
view, simply the number of inhabi
tants, for the purpose of making an
apportionment to constitute your Sen
ate and House of Representatives.
The course taken by this committee
seems to me to be strange, I think
the two are indissolubly connected
together, the apportionment with
enumeration, and that the apportion
ment belongs directly to the legis
lature. I know of no other plan in
our system of government than for
that apportionment to be made every
five or ten years upon the basis of a
state enumeration. I am perfectly
satisfied to adopt the clause as it ex
ists in the present constitution, but
I would like to have the two go to
gether in order to be sustained.
Mr. MAXWELL. Mr. Chairman.
It seems to me it would be much bet
ter to divide this question. There
are parties here who would be will
ing to vote for 1872, because many of
these new counties are almost cut off
from representation. I could not
vote for the whole article as it is pre
sented by the committee. Now, Mr.
Chairman, in regard to the state
ment of my friend from Douglas
(Mr. Myers) that the apportionment
and the enumeration ought to go
together. I understand the object
of taking the enumeration is to form
a basis to make the apportionment
by. Supposing the number of in

habitants of the state should be 120,-
000, and it is now over that at this
time, and we should agree upon six
ty representatives for the House there
would be no difficulty in ascertaining
the number of people entitled to rep
resentation, we can fix upon just
principles so that all will fare alike.
Mr. MOORE. Mr. Chairman. It
seems to me this is not an appropri
ate section in which to apportion the
state. I think it will come up proper
ly hereafter. I will say something-
with regard to the census to be tak
en in 1872. It may strike some that
it is an unnecessary expense. Now T
avoid all expense that is possible, I
know that the men who do the voting
in this state have to live by the
sweat of their brow, and have to-
make every dollar they have by hard
toil, and I would avoid paying money-
unnecessary, yet we in the west want
to come here fully and properly rep
resented if it is possible to be so, and
there is no way to obtain it than by
a census to be taken in 1872. The
western portions of the state are in
creasing much faster than the eastern
portions. Those counties that only-
had from twenty tb thirty population
in 1870 will have some 2,000 In 1875
and we do not wish those counties
to go unrepresented all that time.
Theyi .have instructed members here
to get them that representation, and.
we will do all we can for that pur
pose, they are willing to pay their
proper proportion of the expense. It.
will not necessarily be very much,.
we have assessors in our precincts in
this state, those assessors have to-
pass to every farm dwelling in each
respective county, and in that way,.

STATE CENSUS

571

Tuesday]

LAKE

[July 25

if they will take the enumeration as
they go along, it need not be any
great additional expense. Then in
1875 take it again, then we can pass
every five years and do the best we
can under the circumstances.
Mr. LAKE. Mr. Chairman. It
seems to me that the same reasons
that obtain now for the census will
recur within two years after 1875. If
it is necessary in order that all the
newcomers into the state be repre
sented, that a new census be taken in
1872, then in 1877 the same thing
will have to be repeated I prefer to
take the course indicated by my col
leagues. This body understands
about what the proportion has been
of emigration to the state. In mak
ing up the districts that are to ob
tain until 1875 a liberal allowance
can be made for this emigration, and
the new counties can be given the
benefit of all this supposed emigra
tion to their borders. Now, it cannot
be said that the necessity will cease
at 1875; for there is no member of
this body, Mr. Chairman, but what
believes that the emigration to the
state will be greater from 1875 to
1880 than it has been since the cen
sus which was taken by the General
Government in 1870. Now, it should
be borne in mind that the census of
1870 has been but recently taken,
only last year, and has just gone out
to the world what the population of
the different counties were at the
time. We know, from various sour
ces, about what proportion of emi
gration to each of these new coun
ties has been. Representation has
been made by. gentlemen upon this
floor in reference to it, and from those

facts an enumeration will be rendered
unnecessary, and need not be taken
at the time indicated by the gentle
man from York (Mr. Moore). His
mode of taking the census would be a
novel one indeed. He says it would
be done without expense. Now, to
take a census which ought to be a
basis of representatives and senators
should be taken with care. If it is
of sufficient importance to be called
for at all, it is of sufficient import
ance to be taken with care; and the
persons must be paid for so doing
in order to secure that result.. What
would it cost? It would cost a good
round sum to take a census of this
state in such a manner that it would
be at all valuable, so that it would
be anywhere near as valuable as that
taken last year. It would be as -well
to take the representations of gentle
men from this floor as to refer to
any such basis as that proposed by
the gentleman, and if there has been
so large an increase within one year,
or a year and a half, since the census
was taken in 1870, as to require a
new census in order to form a proper
basis for an apportionment of repre
sentatives and senators, there will be
just as much reason for a new ap
portionment in 1874, before the elec
tion of representatives to the legisla
ture the fall following, or the suc
ceeding session. And this same reas
on would obtain at each annual elec
tion, because our state is growing
rapidly; these new counties are fill
ing up constantly, and we must
adopt some new basis for taking the
census which shall be just and taken
oftener than five years. If we come
to that conclusion then provide that

572

STATE CENSUS

Tuesday]

LAKE— MANDERSON

[July 25

so long as the constitution shall last,
and while it is possible there shall
b£ this increase in population every
year, then have the census taken
every year. Because no other plan
could obtain. The difficulty is that
the sparcely settled country will h-
subject to a more frequent census
than gentlemen upon this floor would
contemplate or be willing to provide
for. Now, five years, I think, is often
enough. It is sufficient time when
the apportionment is made for all
practical purposes. Now, the census
being taken in 1870, and I believe
an apportionment was had, based up
on that census. Now, the probabili
ty is that ample justice was done to
the new counties in that apportion
ment. If not, let gentlemen upon
this' floor point out wherein they have
been prejudiced and their rights not
respected, and I am sure there will be
a sufficient desire upon the part of
every member of this body, to recti
fy that wrong. I desire that all parts
of the state should be properly rep
resented, and as nearly as practic
able alike. But I do not believe in
subjecting the state to an unneces
sary burden. In order to reach this
desirable end, let us approximate, as
nearly as is practicable, all things
concerned, taking into account the
expense, the rapidly increasing popu
lation of the state, and let us do what
shall seem to be best, and determine
what periods of time shall elapse be
tween each separate census, and when
we have determined that let that suf
fice for the first as well as the second
division of the state into districts.
Mr. MANDERSON. Mr. Chair

man. I agree with much that has
been said by my colleague who has
just sat down, and also by the gentle
man from York (Mr. Moore) . I do
not think a state census should be ta
ken oftener than once in ten years,
and I think the one taken by the
state authorities should alternate
with the one taken by the Federal
government. Yet, we cannot but rec
ognize the fact that great injustice,
by deprivation of representatives will
be worked to many new counties that
are filling up. For instance, say that
in 1875 we take the state census, the
legislature which meets afterwards
makes an apportionment, there may
be one-half dozen counties carved out
on our western border, and under
this system of emigration by colonies,
it may be that some of these newly
organized counties may run up be
yond what is required for the repre
sentative in the lower house, but they
are compelled to go on until the cen
sus of 1880. How shall we rid our
selves of this injustice? By making
a general census more frequent? No.
That would not be proper, and would
make an expense to the state which
should not be required. At an early
day, in the sitting of this convention
I introduced a resolution here, and I
am sorry I am not able to secure a
copy of it as presented. The Chair
man of the committee (Mr. Towle)
has a copy of it but he is absent. It
seems to me it meets this difficulty:
"The number of senators shall be
and the number of represen-
, which num-

tatives shall be

ber may be increased every five years
by the legislature, and shall be ap
portioned according to the Federal or
state census last preceding such ap-

APPORTIONMENT— MANDERSON'S PLAN

57?

Tuesday]

MANDERSON-GRAY

[iluly 25

portionment, provided, however, that
any county may, upon application
through its board of county commis
sioners to the governor of the state
procure by him the appointment- of
a board of three census takers, whose
duty it shall be at the expense of
the county to take the census of such
county, and under oath return the
same to the governor, and if it ap
pears that the population of said
county is equal to the number requir
ed for one member of the lower
house of the legislature then such
county shall be entitled to one mem
ber thereof."
Now I suggested that this meets
this difficulty. I do not know that it
properly comes here, and therefore
I will not propose it as an amendment
to this or any portion of the Legisla
tive Article. Because I think the
committee on legislation should first
suggest and report something in re
gard to it. This course avoids the
necessity of frequent taking of the
census. The practical working of
this scheme is apparent. A new coun
ty is formed or organized, and finds
a great amount of its population un
represented. It would be unfair for
it to wait until the next Federal cen
sus. But upon application being
made through the county commis
sioners to the governor it shall re
ceive its apportionment after the cen
sus takers have made their returns,
which shall be done at the expense of
the county, and if it is found they are
entitled to a representative, a special
election is called and a member elect
ed. Mr. GRAY. I think the motion
now is to refer the article back to
the committee which reported it.
The CHAIRMAN. I do not so un

derstand it.
Mr GRAY. Do I understand the
chair to recognize that motion now?
The CHAIRMAN. Yes. Such a
motion was made.
Mr. GRAY. It has been urged
here by the gentleman from Cass, and
I think one or two others on the
floor, that this question about rep
resentative districts, about the ap
portionment can be deferred until
some day, and referred to some other
part of this article. , It seems to me
if these gentlemen will reflect for one
moment they will see we have no
business to refer these to any other
article in this constitution. Here is
where it belongs. Why divide one
subject matter into two sections.
There is no propriety in it, there is
no necessity for it. The whole sub
ject should be settled in this one sec
tion, right here. But gentlemen say
they are not prepared for it at pres
ent. Was not the substitute I of
fered voted down solely upon this
ground? The fact is if we are not
prepared to act upon this, it seems to
me the only way we can get along, is
to have the whole matter referred.
The members of the committee, after
they have already learned the theo
ries and notions of the members of
this convention, it seems to me that
they will address themselves to the
subject in hand until they draft some
thing which will be satisfactory to
the majority of the members of this
convention. I trust therefore that
this particular subject matter may be
disposed of in that way.
Mr. MYERS. Mr. Chairman. I
rise to object to the postponement of

574

MAXWELL'S SUBSTITUTE

Tuesday]

MYERS— HASCALL— LAKE

[July 25

this matter by referring it to the com
mittee who have had it in charge, or
to the committee on apportionment.
I concur with the gentleman who last
spoke in the wish to have this mat
ter settled here at once. I know it
is the most difficult matter in the
whole constitution to settle satisfac-
torally. No matter what proposition
this committee had incorporated in
their report, it would have met with
opposition. It is a difficult matter for
adjustment. Let it be settled here.
The gentleman from Douglas (Mr.
Manderson) has just made a propo
sition. Now are we prepared to vote
for having the census taken in one
county but not in another? While
the western counties are increasing
so rapidly in population, are the east
ern counties to stand still? If the
new comers will only come into only
one county, it might do, but if they
are to come into the entire state, the
census must be general.
Mr. HASCALL. Mr. Chairman.
The gentleman from Dodge (Mr.
Gray) states that this question is
not understood. This proposition is
the same under which we have been
acting in the old constitution, and
we ought to understand it . I see no
way of getting out of this difficulty
or adopting the proposition of my col
league (Mr. Manderson) but I think
we ought to adopt a section at this
time. The apportionment commit
tee cannot do anything, because this
convention has not yet determined
upon the number of senators and rep
resentatives wanted. After this mat-
t«*r has been attended to by the con- '
veution, then the committee can get

together and go to work. Whether
or not we have float districts does
not properly come up now.
The CHAIRMAN. The question is
upon the motion that when this com
mittee rises, they report this matter
back to the convention with a recom
mendation that it be referred to the
committee whence it came.
The motion was not agreed to.
The CHAIRMAN. The question is
upon the substitute offered by the
gentleman from York (Mr. Moore),
which reads: "The legislature shall
provide by law, for the enumeration
of the inhabitants of the state, in the
years 1872 and in 1875, and every
ten year thereafter."
Mr. LAKE. Mr. Chairman. I would
like to have the proposed section of
fered by the gentleman from Cass
(Mr. Maxwell) for which this is pro
posed as a substitute, read.
The Chairman read as follows:
"The legislature shall provide by law
for an enumeration of the inhabitants
of the state in the year 1875, and at
the end of every ten years thereafter,
and at the first session after such
enumeration, and also after each enu
meration made by the authority of
the United States, the legislature
shall apportion and district anew the
members of the senate and house of
representatives, according to the
number of inhabitants, excluding In
dians not taxed and officers of the
United States army and navy."
Mr. MOORE. Mr. Chairman. I
first wish to call attention to one
thing. By the substitute, I take it,
the legislature may apportion the rep
resentatives at any time they may see
fit, and also take for a basis the cen
sus of the United States or of this

LEGISLATIVE TERMS

575

Tuesday]

MOORE— McCANN— C ASSELL

[July 25

state; whereas, by the amendment of
fered by the gentleman from Cass
(Mr. Maxwell) we must do it at the
first session after the census is taken.
Now for some reason, the legislature
may fail to consider this matter at
the first session, and if they don't do
it at this first session, then the cen
sus is lost. I think the amendment
of the gentleman from Douglas (Mr.
Manderson) is a good thing. I would
not wish to have the responsibility
of giving the apportionment of those
new counties according to my judge
ment. I might give a guess but I
would not like to have the legisla
ture act upon my judgment. I think
it would be but a small additional
cost to take this enumeration in
1872. It has been done in other
states when they have adopted a new
constitution and they have started
with a clean start. I am not particu
lar about anything. I want some
thing that is good for us all, and
nothing that is good for one portion
and bad for another.
The CHAIRMAN. The question is
on the substitute offered by the gen
tleman from York (Mr. Moore.)
The substitute was not adopted.
The CHAIRMAN. The question is
on the substitute offered by the gen
tleman from Cass (Mr. Maxwell.)
The substitute was adopted.
The Chairman read the next sec
tion, as follows:
iec. 4. The senators shallbe cho
sen for three years, by the citizens of
the several senatorial districts, at the
same time, in the same manner, and
at the same place where they shall
vote for representatves.
Mr. SPRAGUE. Mr. Chairman. I

move to strike out the word "three"
in the first line and insert the word
"two." Mr. McCANN. Mr. Chairman. If
the gentleman from Saunders (Mr.
Sprague) will allow me I will read an
amendment or modification of this
section which was considered in the
committee as follows:
"Representatives shall be elected
for the term of one year, and sena
tors for the term of two years."
Mr. SPRAGUE. That suits me Mr.
Chairman. Mr. McCANN. Then Mr. Chairman
I move that the fourth section be
struck out and this be substituted in
lieu of it.
Mr. CASSELL. Mr. Chairman. I
offer a substitute.
The Chairman read the substitute
as follows:
"Senators in the odd districts shall
be elected for the term of two years,
the senators in the even districts
shall be elected at the first election
for the term of one year and there
after once in two years. The repre
sentatives from the even districts
shall be elected for the term of two
years and representatives from the
odd districts shall be elected, at the
first election for one year and there
after once in two years."
Tho CHAIRMAN. The question is
on the adoption of the substitute of-
fered by the gentleman from Otoe
(Mr. McCann.)
The substitute was adopted.
The CHAIRMAN. The question is
on the substitute offered by the gen
tleman from Lancaster (Mr. Cassell.)
Mr. CASSELL. Mr. Chairman. It
is plain that the object of the substi
tute is to have one-half of the mem-

576

LEGISLATIVE APPORTIONMENT

Tuesday]

McCANN— WAKELEY- SPRAGUE

[July 25

bers of each house hold over each
time. Mr. McCANN. Mr. Chairman. So
far as the senators are concerned I
believe that it is wise to provide that
they should hold over, but as to the
representatives I think it is better
that the people shall have the oppor
tunity of voting for them each year,
many of my constituents have so ex
pressed themselves, and by an ar
rangement of that kind we would
have one sixth of the members hold
ing over.
The substitute offered by Mr. Cas
sell was not agreed to. »
Mr. McCANN. I move that section
four be adopted as amended.
The section was adopted.
The Chairman read the next section
as -follows:
Sec. 5. The number of senators
shall, at the several periods of mak
ing the enumeration before mention
ed, be fixed by the legislature, and ap
portioned among the districts formed
as hereinafter directed, according to
the number of inhabitants in each
as shown by the United States or
state enumeration, and shall never be
less than one-fourth nor greater than
one-third of the number of represen
tatives. Mr. MAXWELL. Mr. Chairman.
I move to strike out section five. Sec
tion three which we have already
adopted provides for the same thing.
Mr. MYERS. Mr. Chairman. I
move to amend this section so as to
read as follows:
"The number. of senators shall
never be less than one-fourth or
greater than one-third of the num
ber of representatives."
Mr. WAKELEY. Mr. Chairman.

The first section as originally report
ed by the committee provided for
the number of representatives and
senators, but all that part was struck
out and so far we have made no pro
vision as to the number. It seems to
me that we should now fix that num
ber, for no apportionment can be fix
ed until we have fixed that number.
Mr. HASCALL. Mr. Chairman. I
will say that I believe that the new
constitution of the state of Kansas
will meet the approval of this com
mittee. I have sent to the library for
it. Mr. SPRAGUE. Mr. Chairman. I
have a rough draft here which I
think will meet the wants of the com
mittee, if in order?
• The CHAIRMAN. There is a mo
tion before the committee to strike
out this section.
The motion was not agreed to.
Mr. SPRAGUE. Mr. Chairman. I
now move to substitute the follow
ing to come in after section four:
"And the legislature at its first
session after the adoption of this
constitution shall apportion the mem
bers thereof among the several coun
ties of the state by dividing the
whole- number of the inhabitants of
the state for the ratio of represen
tation for members of the house of
representatives and shall give to each
county one representative as often
as it shall have the number required
by the ratio, and for every fraction
thereof of one-half or more and
every county which shall not have
one-half of the required ratio shall
be joined with other like counties
which will entitle them to at least
one representative."
Mr. HASCALL. Mr. Chairman. I
have this constitution in my hand. If

NUMBER OF LEGISLATORS

577

Tuesdayl

HASCALL— WOOLWORTH— SPRAGUE

[July 25

there is no objection I will read an
extract for the benefit of the com
mittee. "The first house of representatives
under this constitution shall consists
of seventy-five members who shall
be chosen for one year. The first
senate shall consist of twenty-five
members, who shall be chosen for
two years. After the first election,
the number of senators and mem
bers of the house of representatives
shall be regulated by law; but shall
never exceed one hundred represen
tatives and thirty-three senators."
I think those ideas may be incor
porated in the section just passed.
Mr. WOOLWORTH. Mr. Chair
man. I see a difficulty in the plan
proposed by the gentleman from
Saunders (Mr. Sprague.) He pro
poses to fix the number of represen
tatives, then he proposes to find out
what the ratio of representation
should be by dividing the whole num
ber of the population by that number
of representatives. So far that goes
along all very well but he proposes
to give fractions of the ratio in
counties not having the full number
a representative. There is a practi
cal difficulty in the way we had better
look out for. I have heard it sug
gested here that counties not having
the full number ought to be repre
sented, because every county ought to
have its representative. There is
considerable force in the proposition,
I can see a good deal of propriety in
that thing, but when you come to say
you will apportion your representa
tives among the whole population,
according to a certain ratio, you will
necessarily exclude the idea of the
representation of counties.
Mr. SPRAGUE. It strikes me the
37

gentleman does not understand the
proposition as I presented it. It is
true that it is necessary to fix upon
some certain ratio to divide the
whole population by. It strikes me
that there would be no difficulty in
finding out what the number would
be, the moment you have the census
you know whether a county is enti
tled to a representative or not. I
would also include in that provision
that the legislature should have the
power to increase the number of eith
er house as they see fit.
Mr. WOOLWORTH. I am precise
ly right. The gentleman says the
number of members of the house is
to be fixed, say that is ten. Each of
those ten men are to represent a
hundred people, but if there Is a
county that has got only a fraction,
you use up more than the proper pro
portion, if you are going to have a
certain specific settled number of
members of the house.
Mr. SPRAGUE. The number i»
not fixed.
Mr. WOOLWORTH. I would like
to ask the gentleman what the blank
is for.
Mr. SPRAGUE. For what num
ber you please.
Mr. McCANN. Mr. Chairman. Al
low me to correct the gentleman from
Douglas (Mr. Woolworth) by
supposing the population of Nebras
ka to be 125,000, the divisor of that
number is what we term our ratio
of representation. How do we arrive
at that? First we have to decide
what shall be the number of mem
bers of the senate, second, what shall
be the number of members of the

578

NUMBER OF LEGISLATORS

Tuesday]

WOOLWORTH— McCANN— MAXWELL

[July :

house. As soon as we arrive at this
number we divide 125,000 by fifty,
supposing that is the number of rep
resentatives; that gives us 2,00. That
would be the ratio.
Mr. WOOLWORTH. You intend
that every member of the house shall
represent 2.500 people. Now sup
posing you have in out counties 1,500
people, there every representative
will represent 1,500 people instead of
2,500. If you are to give fractions
a representative on the plan proposed,
are you going to have enough to go
round. If you go on the basis that
your representative is to represent
a whole number, and then go on and
let some of your representatives rep
resent a fraction, you are not going
to have enough to go round.
Mr. McCANN. Mr. Chairman. I
apprehend it will take a better arith
metician than the gentleman from
Douglas and Saunders or myself to
work this out with mathematical ac
curacy. We cannot provide a num
ber as a ratio of'representation which
will work in every instance. We
must approximate that number and
then say that Otoe county for in
stance, shall have two senators, that
is an approximation. It is not nec
essary that the number of inhabitants
of Otoe county shall be limited at all.
When it exceeds one-half I take it
the object of the gentleman from
Saunders is to give the fraction to
another member. We cannot provide
in a state growing as rapidly as Ne
braska that 2, 5 00 or 3,000 people shall
be represented by a single member,
sometimes it will be as low as 1,500,
and again it will be above 2,500.

You cannot provide for it. You
must adopt some such principle as is
foreshadowed in the gentleman's
resolution in order to arrive at it.
Mr. MAXWELL. The principle
proposed by the gentleman from
Saunders is just. As I understand
the basis for the apportionment of
the members of the house of repre
sentatives, a certain number is fixed
upon for the purpose of making the
apportionment. For instance, 250,
that is for the purpose of making an
apportionment. Then you take the
whole number of the people in the
United States; that gives the appor
tionment for each member, and is the
principle adopted by the house of rep
resentatives of the United States.
Now you apply this principle to our
state and fix upon the number of
the members of the house and sen
ate, and supposing there was a mo
iety, unless a representative was al
lowed to the fraction, that portion of
the people is unrepresented. This
is, in substance, the theory of the
gentleman from Saunders. I think it
would give satisfaction to the state.
We may agree upon any number.
If it was 60 it would not be far from
2,000. It is very easy to adjust the
representatives in this way, and it
is only for the purpose of obtaining
a number to divide by that you fix the
number. It does seem to me that a
proviso of this kind, or one similar,
would give satisfaction to all parties
concerned, and do justice everywhere.
Mr. LAKE. Mr. Chairman. I do
not see the difficulty which seems to
be apprehended by my colleague (Mr.
Woolworth). I suppose the inten--

NUMBER OF LEGISLATORS

579

Tuesday]

WOOLWORTH -LAKE-ABBOTT

[July 25

tion is to limit the number of repre
sentatives and senators in the con
stitution, beyond which the legisla
ture in no case can go. Now, the
only way in which the ratio can be
made up by this plan is to take the
whole number of the inhabitants of
the state, and, by selecting divisors
and using the number of inhabitants
as a dividend, and make trials, and
ascertain what the quotient shall be,
and taking that quotient and add to
it the several fractions which may be
found in the several counties if they
do not exceed the number granted in
the constitution, will constitute the
number to which any county or dis
trict shall be entitled. For instance,
we select a divisor, and divide the
number of inhabitants. If it is found
that the quotient together with these
several fractions, exceeds the number
the constitution provides for then
a larger divisor must be provided, so
that the number which is found by
that process, together with the frac
tions found throughout the whole
state shall not exceed the number
provided in the constitution. I be
lieve the proposition of the gentleman
from Saunders is entirely practic
able. He merely adopts a plan for
arriving at the number which each
county shall be entitled to. ' If we
come to the conclusion that every
fraction of one-half the ratio of rep
resentation shall be given a member,
so be it; and so with the senatorial
districts. If the fraction of one-half
is too small, why name a higher one,
In Illinois they provided that no dis
trict shall contain any less than four-
fifths of the senatorial ratio. Sup
pose we provide that fourrfifths of the

ratio shall be entitled to a represen
tative or senator, in every instance,
when an apportionment is made, it
will be necessary to select your di
visor, make a trial of it, count up
your units and the number of frac
tions you have in order to ascertain
whether you are giving the consti
tutional number. And if the divi
sion makes a quotient which, together
with the fractions which shall be
agreed upon, exceeds the constitu
tional number then, of necessity, the
number used as a divisor must be in
creased to make the number of mem
bers less.
Mr. WOOLWORTH. I would like
to enquire of my colleague, or of the
gentleman from Saunders who pro
posed this substitute, whether, when
this plan is followed, it will indicate
the number of the members of the
house. Mr. LAKE. No sir, not at all. It is
merely an arbitrary number, used for
the purpose of ascertaining the ratio
which shall entitle any district to a
representative, and in addition to
that, any district which contains a
fraction in excess of one-half of this
number shall be also entitled to a
representative. Mr. WOOLWORTH. I see now.
Mr. LAKE. I see no reason for
adopting any idea different from the
one offered by the gentleman from
Saunders. If the fraction is too small
then some gentleman can move to in
crease it, so that it may be made to
meet the approval of this committee.
Mr. ABBOTT. We are now talking
on the same question which we voted,
a little time ago, to go to the com-

580

NUMBER OF LEGISLATORS

Tuesday]

HASCALL- ABBOTT-WOOL WORTH

[July 25

mittee. If the gentleman will with
draw this thing I will make a substi
tute which I think will meet the
wishes of the entire house. Until
the year 1880 the Senate shall con
sist of twenty members, and the
House of Representatives shall con
sist of sixty members. After the year
1880 the Legislature may increase
the members in each house, but said
increase shall not exceed ten sena
tors or thirty representatives.
Mr. HASCALL. I have a proposi
tion I wished to submit to the gentle
man. It is this — "The House of Rep
resentatives shall consist of 57 mem
bers, and the Senate of 19 members,
provided, that the number of each
may be increased by law after each
enumeration of the inhabitants of the
State taken under the authority of
the State or the United States; but
the number of the members of the
Senate shall not exceed twenty-five
or for the members of the House of
Representatives 75.
Mr. ABBOTT. I have an article
here which is better, I think, than
either one of them. I offer this as
a substitute, if the gentleman will
accept it. There is no need of debate
on this question of apportionment
in committee of the whole. We want
something each member can look at.
I want the question of apportionment
fairly discussed in committee, print
ed, and then laid before the house.
Mr. WOOLWORTH. Mr. Chair
man. I think it is very unfortunate!
we have not some plan before us that
has been carefully matured and print
ed and laid before us so that we can
read it, each of us, and understand

it. And, in saying that I beg to say
I mean no disrespect whatever to the
committee which reported the article
nor to the gentlemen who have
spoken. It seems to me that we are
going to meet with difficulties in the
consideration of this article. It is
true, as stated by my colleague from
Douglas, that this matter of appor
tionment is a difficult and trouble
some one; perhaps more so than any
thing we have had before us; and it
is for precisely that reason, as was
stated by the gentleman last upon the
floor, that we ought to have some
thing before us, that we, each one,
can read over and consider. Now, if
we had no other business ready for
our consideration in the committee of
the whole or in the Convention, but
this single article, I should think we
were constrained to go on with this
work as we are now doing; but there
is the Judiciary Article ready to be
considered in the committee, and the
Executive Article to be passed upon
by the Convention. And I would,
therefore, suggest without, as I have
said before, the least reflection upon
anybody, — such an idea is the farth
est possible from my mind — I would
suggest that the committee that has
had this matter in charge take this
Article back to their room and try
to harmonize their own views; try to
mature the article that it may be
printed again; and we occupy our
selves while the committee is thus
engaged in the other business of the
committee of the whole. Now I think
the house has already seen the great
difficulty of understanding these prob
lems thus suddenly brought to our
attention by the stumbling I was

NUMBER OF LEGISLATORS

581

Tuesday]

HASCALL— SPRAGUE— MYERS

[July 25

guilty of myself in considering the
proposition of the gentleman from
Saunders (Mr. Sprague). I confess
that it was hard for me to understand
the proposition clearly — as clearly
as I would if I had read it over by
myself in my room. I hope this arti
cle will take some direction that
when we come to consider it, we can
consider it more fairly than under the
present circumstances. After we have
considered the article, it has got to
be entirely gone through with and re
arranged. Mr. HASCALL. Mr. Chairman. I
am on two c.ommittees, Schedule and
Apportionment. These two commit-
ties have been unable to do anything
up to this time. The matter you are
discussing here, is a matter which
should come from the Apportionment
Committee, and the reason the com
mittee have not tried to harmonize
their ideas upon this, is because you
have not said how many Senators and
Representatives you want. I coincide
with the gentleman from Hall, (Mr.
Abbott) that we should consider the
number of Senators and Representa
tives, that we may reach a solution
of this difficulty. I will read, again
my proposition. I hope that the gen
tleman from Saunders (Mr. Sprague)
will withdraw his proposition fso
that the one] I submit and that of the
gentleman from Hall (Mr. Abbott)
may be acted upon. I read my pro
position. The House of Representatives shall
consist of fifty-seven members and
the Senate of nineteen members; pro
vided that the number of each may be
increased by law after each enumera
tion of the inhabitants of the state to
be taken under the authority of the

state or of the United States; but
the number of the members of the
Senate shall not exceed twenty-five
nor the members of the House of Re
presentatives seventy-five.
Now I think that this proposi
tion, or that offered by the gentle
man from Hall (Mr. Abbott) will
settle the matter.
Mr. SPRAGUE. Mr. Chairman. It
was not for the purpose of taking
from the Committee on Apportion
ment any of their duties, that I offer
ed this amendment as an independent
section. As it seems to be the wish of
the members of the committee to
have the matter left for their com
mittee to act upon, I withdraw my
proposition. Mr. ABBOTT. Mr. Chairman. I
will offer a part of the proposition
offered by the gentleman from Doug
las (Mr. Hascall) as a substitute,
with mine.
Mr. MAXWELL. Mr. Chairman. I
move we refer the entire matter to
the Committee.
Mr. MYERS. Mr. Chairman. I
was going to make the same motion;
for the reason that we have now
heard something of the views of the
house. It is therefore proper now,
that the matter should go back to the
committee. I move that the Com
mittee rise, and refer this matter
back to the committee.
Mr. GRAY. Will the gentleman
amend by recommending the com
mittee to take into consideration the
amendments and propositions offered
here. I desire to know whether the
gentleman will include these in his
motion. Mr. HASCALL. Mr. Chairman. I

582

NUMBER OF LEGISLATORS

Tuesday]

A BBOTT— MYERS— WAKE LEY

[July 25

don't think this committee has yet
indicated the number of Senators and
Representatives they want. This is
a material point, as I remarked be
fore. If this matter is postponed
until the last, the committee will
move to act hastily, and they cannot
do it justice. This is a straight pro
position and can be voted upon as
well now as at any other time. . Of
course I appreciate the spirit of my
colleague (Mr. Myers). I admire
the spirit in which he is willing to
take hold of this proposition again,
but I see no benefit that can be de
rived from the reference.
Mr. ABBOTT. Mr. Chairman. I
would like to have the proposition I
made, read and acted upon.
The Chairman read the proposi
tion, as follows:
"The house of representatives shall
consist of sixty members and the sen
ate shall consist of twenty members,
provided that the number of each
may be increased by law after each
census taken by the state or United
States, but the number of represen
tatives' shall not exceed ninety or
the number of senators thirty."
Mr. STRICKLAND. Mr. Chair
man. I move that where it reads 20
members we insert 19 and where it
reads 60 members, we insert 57.
Mr. THOMAS. Mr. Chairman.
Was not a motion made that the com
mittee rise?
The CHAIRMAN. There was; but
there were other propositions con
nected with it and therefore it does
not take precedence.

Mr. MYERS. Mr. Chairman. I
move that the committee rise and
recommend to the convention to re
commit the bill.
The motion was agreed to.
Mr. SCOFIELD. Mr. President. I
The Committee of the Whole have
had under consideration the article
reported by the legislative commit
tee, and recommend that it be recom
mitted to that committee for correc
tion. Adjournment.
Mr. MAXWELL. Mr. President. I
move that we now adjourn.
Mr. HASCALL. Mr. President. I
move to amend that we adjourn un
til 8 o'clock this evening.
Mr. WAKELEY. Mr. President.
Upon my motion the report of the
committee on electoral and repre
sentative reform was made the spe
cial order for this evening and each
evening this week. There are some
members absent who are interested
in this report and others who can
not be here this evening, if there is
no objection I would suggest that the
special order be postponed until to
morrow evening.
Mr. HASCALL. I will withdraw
my motion to adjourn until 8 o'clock.
Mr. WILSON. Mr. President. I
move we adjourn until tomorrow
morning at 9 o'clock.
The motion was agreed to, so the
convention (at six o'clock and five
minutes) adjourned.

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