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Full text of "Constitutional debates. South Dakota, 1885, 1889"






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UNIVERSITY OF CALIFORNIA 
v AT LOS ANGELES 




SOUTH 

DAKOTA CONSTITUTIONAL 
CONVENTION 



"HELD AT SIOUX FALLS, JULY, 1889 



VOL, 2 



HON. A. J. EDGERTON, President 
REV. F. A. BURDICK, Chief Clerfc 
DR. A. W. HYDE, Engrossing Clerk 



PUBLISHED UNDER THE EDITORIAL SUPERVISION OF DOANE ROBINSON 
STATE LIBRARIAN 



Huron, S. Dak. 



STACK ANNEX 

A' 1 / 



Constitutional Convention of 1889 

The Convention of 1889, which convened at Sioux Falls on 
July 4. was the third Constitutional Convention held in South Da- 
kota. Volume One, of this series, embraces the debates of the 
second Constitutional Convention of 1885. The debates of the 
Convention of 1883 were not preserved. The membership of the 
Convention of 1889 was as follows: 

FIRST DISTRICT Sanford Parker, of Fail River; Valentine T. 
McGillicuddy , of Penr.ington; Chauncey L. Wood, of Pennington. 

SECOND DISTRICT Dighton Corson, of Lawrence; William 
S. O'Brien, of Lawrence; Charles M. Thomas, of Lawrence. . 

THIRD DISTRICT S. A. Wheeler of Butte; Thomas W. Thomp- 
son, of Lawrence ; John Scollard, of Lawrence. 

FOURTH DISTRICT William McCustick, of Roberts; Henry 
Xc-ill, of Grant; C. R. Wescott, of Deuel. 

FIFTH DISTRICT William Cook, of Marshall; W. G. Dickinson, 
of Day ; George II. Culver, Day ; 

SIXTH DISTRICT- Martin R. Henninger, of Brown; Lyman T. 
Boucher, of McPherson ; Hurry T. Craig, of Campbell. 

SKVKXTH DISTRICT S. F. Brott, of Brown ; William Stoddard, 
of Brown; M. P. Stroupe, of Brown. 

ICic.irni DISTRICT 11. A. Humphrey, of Faulk ; J. G. Davies. 
of Kdmunds; Peter Couchman, of Wahvorth. 

XIXTH DISTRICT J. F. Wood. <,f Spink ; Thomas Sterling, of 
Spink;T. W. P. Lee, of Spmk. 

TKXTII DISTRICT John F. Whitlock. of Potter; David llali. 
of Sully ;Chas. li. Price, of Hyde. 

FLKVKXTH DISTRICT C. G. Hartley, of Hand: S. F. Huntlev, 
of Jerauld; K. C. Anders-, n, of Buffalo. 

, TWKI.I--TII DISTRICT A. G. Kellam. of Bruie ; J. V. Willis, of 
Aurora; H. I ; . Fellows, of Aurora. 



4592 



THIRTEENTH DISTRICT C. H. Van Tassel, of Sanborn ; L. H. 
Hole, of Beadle; George C. Cooper, of Beadle. 

FOURTEENTH DISTRICT Carl G. Sherwood, of Clark; W. H. 
Matsun, of Kingsbury ; S. D. Jeffries, of Clark. 

FIFTEENTH DISTRICT E. E. Clough, of Codington; S. V S. Peck, 
of Hamlin; S. B. Van Buskirk, of Codington. 

SIXTEENTH DISTRICT 1. Atkinson, of Brookings; I. R. Spooner, 
of Kingsbury; Joshua Downing, of Brookings. 

SEVENTEENTH DISTRICT K. W. Eddy, of Miner; F. G. Young, 
of Lake; R.. F. Lyons, of Lake. 

EIGHTEENTH DISTRICT Andrew J. Berdahl, of Minnehaha 
II. M. Williamson, of Moody; C. C. Gifford, of Minnehaha. 

NINETEENTH DISTRICT William VanEps, of Minnehaha; Clark 
G. Coats, of Minnehaha; E. W. Caldwell, of Minnehaha. 

TWENTIETH DISTRICT William Elliott, of Turner; A. B. Mc- 
Farland, of Lincoln; J. A. Fowles, of Lincoln. 

TWENTY-FIRST DISTRICT John L. Lolley, of Clay ; A. O. Rings- 
rud, of Union ; J. Kimball, of Union. 

TWENTY-SECOND DISTRICT Edward G. Edgerton, of Yankton ; 
Christian Buechler, of Hutchinson; C. J. B. Harris, of Yankton. 

TWENTY-THIRD DISTRICT William T. Williams, of Bon Homme 
Robert A. Smith, of Charles Mix ; Joseph Zitka, of BonHomme. 

TWENTY-FOURTH Dis RICT A. J. Edgerton, of Davison; 
Charles A. Houlton, of Douglas; S. A. Ramsey, of Sanborn. 

TWENTY-FIFTH DISTRICT W. H. Goddard, of McCook; W. 
II. Murphy , of Hanson ;T. F. Diefendorf, of McCook. 



SOUTH DAKOTA CONSTITUTIONAL CONVENTION. 

Sioux Falls, D. T., July 4th, A. D., 1889. 

At the hour of twelve o'clock, meridian, on this 4th day of 
July, 1889, the day and hour appointed by law, the members-elect 
of the Constitutional Convention of South Dakota, assembled in 
Germania Hall and were called to order by Hon. Dighton Corson, 
of Lawrence, one of their number. 

Mr. Corson, of Lawrence: Gentlemen of the Constitutional 
Convention of South Dakota: The Act of Congress providing for 
this Convention has made no provision for any particular officer 
to call the Convention to order. At the request of several gentle- 
men, I now call you to order. 

We will first invoke the blessing of Almighty God. The 
Convention will rise. 

Prayer by Rev. L. N. Stratton, of Sioux Falls: 

Great and Eternal Father, Thou King of Kings and Lord of 
Lords, before whom angles bow and to Whom nations must submit, 
we pray Thee to let Thy blessing rest upon this gathering this day. 
Grant, we pray, O God, to assist the members of this Convention 
in all of their deliberations, in all of their plans, and business, and 
duties and arrangements, and help them to realize that Thy mercy 
is upon them. We thank Thee that Thou hast sent them here. 
We thank Thee that they have at last reached this stage in their 
history as citizens of a new state. Grant, O God, that Thy blessing 
may rest richly down upon them. Give them wisdom, knowledge 
and understanding, and lead them to know that the God of this 
nation is their God, and that they must trust in Him and rely upon 
Him in all their duties and plans, Bless the Presiding Officer of 
this Convention, whomsoever he may, be. Bless all the officers in 
any degree or grade below him; and grant that in all of the business 
arrangements and duties of this gathering there may be a realization 
of the presence of God. 

\Ve ask it in the name of Jesus, our King, 
AMEN. 



SOUTH DAKOTA DEBATES 1889 



Mr. Corson, of Lawrence: I will ask Mr. Caldwell to read the 
Proclamation of the Governor. 

Mr. Caldwell, of Minnehaha: I will say that there are some 
typographical errors in the proclamation as printed, and that I 
will correct them so far as I may know them to be such. In the 
Tenth District there appears a name which is entirely wrong the 
name "Albert Hall". The certificate of election for the third 
member from that district has been issued to Charles H. Price. 

Mr. Corson, of Lawrence: Perhaps you will read it as pro- 
claimed, as it will have to be corrected by the Convention. 

Mr. Caldwell, of Minnehaha: All right. 

Mr. Caldwell here proceeded to read the Proclamation of 
the Governor,' entitled, 

PROCLAMATION 

of the 
Election of Delegates to the Constitutional Conventions 

of the 
States of North Dakota and South Dakota. 

But only such names of delegates were read as were by the 
Proclamation declared elected delegates to the Constitutional 
Convention of South Dakota. 

Mr. Corson, of Lawrence: For the purpose of knowing how 
many members are present in this Convention I will direct now 
the roll to be called, and each member as his name is called will 
announce the fact, if he is present. 

(The roll as contained in said proclamation, after being cor- 
rected, was called by Mr. Caldwell.) 

Mr. Corson, of Lawrence: There are five absentees: Charles 
M. Thomas, J. G. Davies, R. C. Anderson, E. E. Clough, and Clark 
G. Coates, are absent. All the members elected to this Conven- 
tion being present, excepting five, and there being more than a 
quorum, the Convention can proceed to the election of the presi- 
dent of the Convention. Nominations for President are now 7 in 
order. 

Mr. Neill, of Grant: I think the proper order in this Conven- 
tion now is to proceed to take the oath of office. 

Mr. Corson, of Lawrence: ^You'are correct. I beg your par- 



OFFICKRS CHOSKN 5 



don. The members of the Convention will now proceed to take 
the oath of office. The Hon. Bart let t Tripp, Chief Justice of 
the Supreme Court of the Territory, will now come forward and 
administer the oath. The members of the Convention will all rise. 
The Hon. Bartlett Tripp, Chief Justice of the Supreme Court: 
You and each of you do solemnly swear that you will support the 
Constitution of the United States, and that as members of this 
Convention, you, under the Act of Congress enabling South Dakota 
to be admitted as a State of this Union, will well and faithfully 
discharge the duties of that office according to your best learning 
and discretion, with all good fidelity to yourselves as well as to 
the people. So help you God. 

Mr. Corson, of Lawrence: Before leaving the hall, the mem- 
bers of the Convention will attach their signatures in order that 
Judge Tripp may affix the jurat to the oath. 

Nominations for President of this Convention are now in 
order. 

Mr. Spooner, of Kingsbury: Mr. Chairman, In view of the 
fact that we are about to proceed to inaugurate statehood, real, 
and also that we wish to recognize the services of those who have 
assisted us in making this possible, I beg leave to present the name 
of the Honorable A. J. Edgerton, of Davison County, for President 
of this Convention. 

Mr. Sherwood, of Clark: Mr. Chairman, I rise to second 
the nomination of this tried captain and skillful pilot of our ship 
of state, recognizing that for four years the ship which he lanuched, 
as captain, upon the stormy sea, has been honored in every port, 
and that now as we are entering into the harbor, we can have no 
surer guarantee that we will reach that harbor safely than to place 
this skillful captain at the helm. I therefore second the nomination 
of Honorable A. J. Edgerton. (Applause). 

Mr. Price, of Hyde: Mr. Chairman, I take pleasure, Sir, in 
presenting the name of -S. B. Van Buskirk, of Codington County, 
for permanent President of this Convention. Without derogating 
anything which has been said of the eminent jurist who has been 
placed in nomination, I 'can commend to you S. B. Van Buskirk 
as a man eminently qualified to fill the important duties of that 
station. A friend of statehood, he has labored in the past, he 
believes in the present, and is hopeful of the future, and would 
make this Convention an excellent president. 

Mr. Corson. of Lawrence: Are then- anv other nominal 



SOUTH DAKOTA DEBATES 188 9 



There being no other nominations I declare the nominations closed. 
Judge A. J. Edgerton and Mr. S. B. Van Buskirk are nominated. 
How shall these gentlemen be voted for at this time? 

A Voice: Roll call. 

Mr. Corson, of Lawrence: The roll will be called and each 
member as his name is called will announce the candidate for whom 
he intends to vote; and I will ask Mr. Caldwell, of Minnehaha, 
and Dr. McGillicuddy, of Pennington, to step forward and take 
the names as they are called. As each -gentleman's name is called 
he will announce the gentleman for whom he votes. 

(Three delegates had voted when Mr. Van Buskirk took the 
floor.) 

Mr. Van Buskirk, of Codington: Mr. Chairman: I desire 
at this time to decline the nomination, and will withdraw my 
name. (Great applause.) 

Mr. Neill, of Grant: Mr. President, I move that the calling 
of the roll be dispensed with and that A. J. Edgerton be elected 
by acclamation as^the President of this Convention. 

Mr. Corson, of Lawrence: I think the motion is out of order, 
unless it is without objection. If any gentleman objects to our 
dispensing with the roll call he will now make it manifest. (Mo- 
mentary pause). There being no objection, the motion is in -order. 
It is moved and seconded that the roll call be dispensed with and 
that the Honorable A. J. Edgerton be declared the unanimous 
choice of this Convention for President. Are you ready for the 
question? (Question) (Question). As many of you as are in 
favor of that motion will signify it by saying aye. As many as 
are o-pposed, will say no.. The ayes have it; and the Hon. A. J. 
Edgerton is unanimously elected President of this Convention. 
(Applause). I will appoint Dr. Spooner and Mr. Van Buskirk 
a committee to escort Judge Edgerton to the chair. 

BRThe Honorable A. J. Edgerton, President elect, was escor ed 
to the chair amid great applause. 

Mr. Corson, of Lawrence: Gentlemen of the Convention: I 
have the pleasure and honor of presenting to you the gentleman 
whom you have selected as your President, the Hon. A. J. Edger- 
ton. (Applause). 

A. J. Edgerton: Gentlemen of the Convention I can 
not express to you upon this occasion the feeling that I en- 



ORGANIZATION COMPLETED 



tertain not only by reason of your selection of myself to this 
place for the second time but in the manner in which it has been 
done. All that I can say to you now is that I shall endeavor to 
perform its duties to the full extent of my ability for the best in- 
terests of South Dakota, and I know that you will aid me in pre- 
senting to the people of South Dakota and the world a constitution 
unrivaled, and that we may hereafter, under it, succeed to all of 
those rights that in the opinion of some of us we have been so long 
prevented from securing. 

I thank you again, gentlemen, for this selection at the hands 
of this Convention. 

What is the further pleasure of the Convention? 

Mr. Wescott, of Deuel: Mr. President, I move that E. W. 
Caldwell of Minnehaha, be elected Temporary secretary. 

A Voice: I second the motion. 

By the President of the Convention: It is moved and seconded 
that E. W. Caldwell, of Minnehaha be elected Temporary Secre- 
tary of the Convention. Are you ready for the question? All 
those in favor of this motion will signify it by saying aye; contrary 
no. The ayes have it and Mr. Caldwell is unanimously elected 
the Temporary Secretary of this Convention. 

Mr. Jolley, of Clay: Mr. President, I move that a committee 
of five be appointed by the Chair to provide rules for the govern- 
ment of this Convention. 

A Voice: I second the motion. 

By the President of the Convention: It has been moved and 
seccnded that a committee of five be appointed by the Chair to 
provide rules for the government of this Convention. Are you 
ready for the question? As many as are in favor of this motion 
will signify it by saying aye; contrary, no. The ayes have it, and 
the motion prevails. 

The President appointed and the Secretary read the following 
names of gentlemen appointed as the committee to provide rules: 
Mr. John L. Jolley, of Clay; Mr. Wood, of Pennington; Mr. Clough, 
of Codington; Captain H. A. Humphry, of Faulk; Mr. F. G. Young, 
of Lake. 

Mr. Kellam, of Brule: Mr. President, after congratulating 
you, Sir, and the members of this Convention now assembled, and 
the people generally of South Dakota, I desire to move that the 
President 'of this Convention be authorized and requested to com- 



SOUTH DAKOTA DEBATES 1889 



municate by telegraph the greetings and congratulations of this 
Constitutional Convention to the Constitutional Conventions of 
North Dakota, Montana and Washington. (Applause). 

Mr. Neill, of Grant: I second the motion, Mr. President. 

The President of the Convention: You have heard the motion 
made by Mr. Kellam, of Brule. Are you ready for the question? 
As many as are in favor of the motion will signify it by saying aye ; 
those opposed, no. The motion prevails. 

Mr. Van Tassell, of Sanborn: Mr. President, I move you, Sir. 
that the President of this Convention nominate a Conference 
Committee of three to confer with the North Dakota Convention 
as to the size of a joint committee to be selected by the two Con- 
ventions, that being unsettled in the Act of Congress. 

Mr. Lee, of Spink: Mr. President, I second the motion. 

The President of the Convention: Gentlemen of the Con- 
vention, it has been moved and seconded that a committee of three 
be appointed by the Chair to confer with the North Dakota Con- 
vention as to the size of the Joint Committee to be selected by the 
two Conventions. Are you ready for the question? 

Mr. Humphrey, of Faulk: Mr. President, being one of the 
Committee on Rules, I hesitate to speak on this question; but the 
facts are, it seems to me that it would be a part of the province of 
the Committee on Rules, and a part of its business to present 
this matter to the Convention for its action, and it does not seem 
to me that it should be a matter to delay our adjournment on this 
Fourth of July, and that there will be ample time to consider it 
after the report of the Committee on Rules. 

Mr. Kellam, of Brule: Mr. President, my thought is this, 
that this is one of the first steps that this Convention should take 
preliminary to the act of the State's admission, provided for by 
the Omnibus Bill. I understand that this is simply the appoint- 
ment of a committee to confer with the North Dakota Convention 
as to the number of gentlemen comprising this commission and the 
time as to when they will be prepared to meet with the commission 
from South Dakota. With no disrespect to the Committee on 
Rules this is an exceptional committee, and I think that the 
judgment of this Convention would be that the sooner we can get 
this matter in the hands of the Commission, inasmuch as it is the 
only matter that will necessarily consume any great length of time, 



Tl-MI'ORAkY Rri.KS 



tin- sooner this Commission will get to work, and tin- sooner they 
will bo prepared to report. My judgment is that this is one of 
tho first steps this Convention should take. It cannot be done 
until we have conferred with the North Dakota Convention. 

Mr. Weseott , of Deuel: Mr. President, I move an amendment 
(0 the motion before the House, that this be left to the Committee 
on Rules let them see to this matter and return their report 
after conferring together after conferring with the Committee 
appointed by that Convention. 

The President of the Convention: It is moved that a com- 
mittee of three be appointed to confer with the North Dakota 
Constitutional Convention. It is now moved by the gentleman 
from Deuel that this question be left to the Committee on Rules. 
Are you ready for the question? (Cries of "Question"). The 
first question will be on the reference. Those of the opinion that 
this be referred to the Committee on Rules will say aye ; those op- 
posed say no. The Chair is unable to decide. Those in favor of 
the reference will rise and stand while the Secretary counts. You 
will now be seated. Those of the contrary opinion will rise while 
the Secretary counts. 

The Secretary reported that there were 36 ayes, and 25 noes. 

The President of the Convention: The reference moved by 
the gentleman from Deuel is carried, and the whole question is 
referred to the Committee on Rules. 

Mr. Xeill, of Grant: Mr. President, I move you that we- now 
adjourn until two o'clock tomorrow afternoon. 

Mr. Caldwell, of Minnehaha: Mr. Chairman, I desire to move 
that the rules of the Constitutional Convention'of 1885, shall obtain 
so far as they may be applicable, until the report of the Committee 
on Rules is adopted. 

A Voice: I second the motion. 

The President of the Convention: Are you ready for the 
question? It has been moved and seconded that the rules of the 
Constitutional Convention of 1885, shall obtain so far as they may 
be applicable, until tho. adoption of the report of the Committee 
on rules. Those of the opinion that the motion prevail will sax- 
aye; contrary no. The motion is carried. 

Mr. Xeill, of (irant: Mr. President. I will now repeat my 
motion to adjourn. 

Mr. Williams, of HonHomme: Mr. Chairman, in our gathering 



10 SOUTH DAKOTA DEBATES 1889 

(referring to Republican caucus) it was determined that the other 
temporary officers would be appointed at this time. 

A Voice: No Sir; only such as were necessary. 

By the President of the Convention: That has no force in 
this Convention. It has not been acted upon by this Convention. 
It has been moved to adjourn until tomorrow at two o'clock. 
Those of the opinion that the motion prevail will say aye; contrary 
no. The motion prevails and the Convention is adjourned until 
two o'clock tomorrow afternoon. 

ADJOURNED. 



SECOND DAY. 

Friday, July 5th, 1889. 

Two o'clock P. M. 

The Convention re-assembled pursuant to adjournment. Mr. 
Kellam, of Brule,. in the chair. 

Mr. Kellam: I find a note from Judge Edgerton, President 
of the Convention, asking me to take his place during his absence, 
for the day ; this is the explanation of my being in his place. The 
Clerk will please read the note. 

Which was done as follows: 

Sioux Falls, Dak., July 4, 1889. 
HON. A. G. KELLAM: 

Will you please act as President, pro tern, of the Convention 
under the rules, during my absence. 

A. J. EDGERTON. 

The roll was called and every member answered to his name 
as called. 

Mr. Neill: I move that if there are any delegates present 
today that were not sworn in yesterday, that the presiding officer, 
(if authorized to do so) administer the oath of office to them at 
this time. 

The President, pro tern: Are there any delegates here now 
who were not present yesterday to take the oath of office, if so let 
it be known. It being a matter of considerable doubt whether 
the President pro tern, will be authorized to administer this oath, 
if these gentlemen will come forward, a Notary Public is present, 
and will administer the oath of office. 

H. M. Avery, Notary Public, administered the oath of office 
to the following delegates who presented themselves for that 
purpose: E. E. Clough, of Codington County; J. G. Davies, of 
Edmunds; and R. C. Anderson, of Hand, as follows: 

You and each of you do solemnly swear that you will support 
the Constitution of the United Stairs and that as members of this 



12 SOUTH DAKOTA DEBATES 1889 

Convention you, under the Act of Congress enabling South Dakota 
to be admitted as a State of the Union, will well and faithfully 
discharge the duties of that office according to your best learning 
and discretion with all good fidelity to yourselves as well as to the 
people, so help you God. 

The President pro tern: The Convention will now listen to 
the reading of the Journal. 

As the reading of the Journal proceeded the following cor- 
rections were suggested: 

Mr. Anderson: My residence should be Hand County. 

Mr. Lyon: Lake County should read Miner County. 

Mr. Scollard: Lawrence there should be changed to Meade; 
a portion of Lawrence County was attached to Meade County and 
Butte County, making up the third district ; just one tier of town- 
ships. 

The President pro tern: The territory from which you are 
elected is now part of Meade County. 

Mr. Culver: I would suggest the correction, making the 
Journal read, Marshall County, where it now reads Day County. 

Mr. Jolley: In the Twenty-first District, Kimball, of Union, 
should be Kimball of Clay County. 

Mr. Clough: I am down in the report as a laggard yesterday ; 
I do not like to go into history as a laggard without the knowledge 
that I am a substitute; I would like to have the Journal of the Pro- 
ceedings changed just a little; that portion saying, "All members 
responded except" etc. I was substituted to perform a public 
service, connected with the national celebration yesterday. I 
was not a laggard. 

The President pro tern: The members, as they take the floor, 
will announce their names, so that the stenographers may know 
to whom to credit what is said ; we are making history now. 

Mr. Neill: I call Mr. Caldwell's attention to the fact that 
he was clerk, pro tem; the Journal was not so signed. 

The President pro tem: The Chair did not understand the 
suggestion of the gentleman from Codington, to be in such shape 
that any action should be taken upon it; does the Convention 
consent to the correction of the minutes so as to correspond with 
the correction suggested by Mr. Clough? 

Mr. Xeill: I do not understand how the Convention can. 

Mr. Clough: I believe it is due a man that did as hard a piece 
of work as I did yesterday, without any notice, that he do not go 



CLOUGH'S EXPLAN \ 



into history as a laggard; I think it is due to me; that it might to 
i in some form and some way, why I was not here. I was 
detailed at Sioux Falls, to give a public- address, as a substitute, 
and was so engaged cfuring the hour set for the assembling of this 
Convention. 

The President pro tern: Is there objection to the eorreetion 
of this record so as to correspond with the suggestion of Mr. Clough ~'. 

Mr. Xeill: I have no objection to its being done in that form ; 
to take some action today, explaining the absence is another thing; 
I do not think that a correction in yesterday's proceedings would 
be regular; I do not think it would be in place. 

Mr. Caldwell: I would say that I remember there was some 
mention made at the time, of Mr. dough's absence, of his being in 
the city; I believe some reference: was made to the circumstances 
of his absence; that being the case it might, without any very great 
disturbance be incorporated in here as of the pro< 
terdav. 

Mr. Lee: I think the gentleman from Minnehaha was correct ; 
we mentioned the fact Mr. Clough was doing his duty on our great 
celebration day. 

Mr. Matson: I noticed particularly, that the explanation 
was made, that Mr. Clough was in the city; no statement at all 
as to what he was doing; simple statement was made that Mr. 
Clough was in the city. 

A Voice: If the correction is made as suggested, how will 
you explain this fact that all the other members were sworn in 
by the Chief Justice, and he comes in today and is sworn in by a 
Notary Public-. 

The President pro tern: I do not understand that tin- 
should be so changed as to show his presence on yesterday, but 
the record should be so amended as to show why he was absent, 
invention object to the words suggested by Mr. Clough. 
which shall explain upon the record tin- reason of his al 
being inserted:' If there is no objection now made-, it will betaken 
as the sense of the Convention that tin- record should be so amended. 

The Chair hearing no objection, the Journal will be so amended. 

Mr. Ileninger: In the printed list of the names of the mer. ' 
of 1 he ()t h District , my name is spelled wr 

The President pro tern: There- being no further corrections, 
the record will then stand as read and amended. 



14 SOUTH DAKOTA DEBATES 1889 

The President pro tern: The next order of business is com- 
munications and presentations of petitions. 

Mr. Caldwell: There are two communications upon the table 
of the Clerk. 

The President pro tern: The Convention will listen to the 
reading of the communications. 

The Clerk reads as follows: 

Bismarck, Dakota, July 4th, 1889. 
To THE CONSTITUTIONAL CONVENTION OF SOUTH DAKOTA, Sioux 

FALLS, DAKOTA. 

The Constitutional Convention of North Dakota sends greeting 
and bids you God speed in your advance movement towards state- 
hood and full American citizenship. May the four new stars about 
to be added to the national flag not lose in brilliancy through lack 
of care in laying the foundations of the states to be. Let Washing- 
ton bring fruits and flowers, Montana its precious metals to add to 
the beauty and wealth of the nation, while the Dakotas will bring 
wheat and corn to feed the people of the world. 

F. B. FANCHER, 

President. 

Olympia, Washington Ter., July 4, 1889. 
HON. A. J. EDGERTON, 

President of the South Dakota Constitutional Convention, 
Sioux Falls, Dakota. 

The Washington Constitutional Convention returns greeting 
to the South Dakota Convention. 

The time is auspicious. The Empire State of the Pacific 
Northwest will join her sister in every onward development. 

J. G. MOORE, 

Chairman. 

The President pro tern: The next order of business under 
the rules, is unfinished business, of the previous day. 

Mr. Caldwell: If I may be permitted, I would like to bring 
up something that is properly in the nature of a communication. 

The President pro tern: The Convention will ret urn to that 
order of business. 

Mr. Caldwell: The general government as it provides the 
two houses of the Territorial Legislature with a daily journal, and 
also provides for the printing of the Journal at the close of the 
session, the representative of Secretary Richardson, Mr. C. W. 
Hubbard, has arranged for the printing, daily, of the Journal 
of this body, which will be paid for by the general government ; 
and the communication is to the effect that this will be printed. 



ROUTINE 15 



Now then, I would like to ask for directions here; that the Con- 
vention give instruction as to the number of copies it would like 
to have, and that there be an arrangement made for the correction 
of the Journal, in order that the daily Journal may be properly 
arranged for going into the volumes which shall be printed. This 
is at the request of Mr. Hubbard, representing the Secretary of 
the Territory. 

The President pro tern: The rules now in operation, (being 
the rules of the last Convention) provide that the President of the 
Convention shall correct the Journal before presenting it next 
day. This is a matter of work of the President by the rules. 
If such rule shall not be reported by the Committee on Rules 
when they report, then such action can be taken by the Convention 
as to that matter as they think advisable ; the present rules impose 
upon the President that duty. 

Mr. Caldwell: Dictate the number of copies that shall be 
ordered printed, and the Secretary will liquidate the bill. 
*.#} Mr. Sterling: In order that the matter may be brought 
before the Convention, I move that two hundred copies a day 
be printed, of the Journal; that will bring out an expression. 

Mr. Lee: I rise to second the motion. 

The President pro tern: Is the Convention ready for the 
question? 

The motion reaching a vote, prevailed. 

Mr. Caldwell: I also make a communication from the repre- 
sentative of the Secretary, to the effect, that provision has been 
made for placing upon the desk of each member a small placard 
giving his name and county ; that these will be furnished at such 
a time as the Convention may determine the location of its several 
members. I make this communication in order that if the Conven- 
tion desires to have any different arrangement of the members, 
to determine the seats by lot, it may be attended to, so that once 
the seats of the various members be definitely determined upon, 
these placards will be attached to the desk, and so that it will 
enable members either in front or back to know who it is speaking. 
I make this communication merely for the convenience of the 
Convention. 

The President pro tern: I think the Convention understands 
the suggestion clearly with reference to the cards to be attached 
to the desks, and if the Convention desires to take any action in 



16 SOUTH DAKOTA DEBATES 1889 

regard to the location of the members in seats, it will be desirable 
to do that before this plan is put into execution. 

Mr. Price: I move you, Sir, that we proceed to' the selection 
of seats by lot. I notice today, the seats are not occupied by the 
same members of the Convention that they were yesterday in a 
great many instances ; in order to avoid any trouble in that direction, 
I think this should be done without delay. 

Mr. Lee: My head is snowed by number and weight of years. 
I am a little deaf. I selected this seat ; I think the majority selected 
seats yesterday; we are all quite well-fixed here; I do not think 
we can better ourselves with a change; if we do, I want the priv- 
ilege of being one to retain the seat already selected. 

Mr. Xcill: What order of business are we working under just 
now? 

The President pro tern: Communications and presentations 
of petitions. 

*The President pro tern: The gentleman from Hyde, (Mr. 
Price) does not seem to be supported in his motion, and the ques- 
tion can be renewed later, if he desires to do so. 

The President pro tem: The Convention will now give its at- 
tention to unfinished business of the previous day. 

Mr. Neill: I move we proceed to the election of subordinate 
officers of this Convention. 

Which motion was duly seconded and coming to a vote, 
prevailed. 

The President pro tem: The Convention will now proceed to 
the election of subordinate officers. 

Mr. Atkinson: The Act of Congress under which we are at 
work, does not provide for a very strong clerical force, and as some 
of the subordinate officers will probably not have much to do in 
that line, I move you that they be selected with the understanding 
that they do such work as is required of them, even if it is not in 
the line their position would indicate. The Door Keeper, and 
Messengers will have very little to do; we may as well select a man 
that is a ready penman, that we might use him writing part of 
the time, and make him earn his money ; that will help us out. 

Which motion did not receive a second. 

Mr. Edgerton, of Yankton: I place in nomination for the 
position of Chief Clerk, Rev. F. A. Burdick, of Yankton County. 



PERMANENT OFFICERS CHOSEN 17 

Mr. Van Eps: I place in nomination W. W. Goddard, of 
Sioux Falls, for Chief Clerk. 

The President pro tern: I appoint Mr. Sterling, of Beadle v 
and Mr. Elliott, of Turner, as tellers to take the ballot. 

Mr. Harris: I move that this election be by VIVA VOCE vote 
upon calling the roll. 

Which motion prevailed. 

The President pro tern: The motion prevails, and the Chief 
Clerk will be elected VIVA VOCE ; each member responding to his 
name as called, the candidate of his choice. 

As a result of said ballot, Mr. Burdick received fifty votes 
and Mr. Goddard, twenty-one. 

The President pro tern: The Convention has selected F. A. 
Burdick as Chief Clerk. 

Mr. Wescott: If it is in order to make a nomination of En- 
rolling and Engrossing Clerk, I take pleasure in placing before the 
Convention, for that position, Dr. A. W. Hyde, of Brookings 
County, a gentleman of culture and in my judgment peculiarly 
fitted for the duties of that office, and if he is elected will honor 
the position. 

Mr. Harris: I would place in nomination, James Kingsbury, 
of Yankton County. 

The President pro tern: There being no dissenting voice, it 
will be taken as the will of this Convention that these elections, 
be by VIVA VOCE vote. You have as nominees for the position 
of Enrolling and Engrossing Clerk, 'Dr. A. W. Hyde, of Brookings 
County, and James Kingsbury, of Yankton County; as your names 
are called, respond to the candidate of your choice. 

Mr. Hyde received fifty votes, and Mr. Kingsbury nineteen, 
and Mr. A. W. Hyde was declared duly elected to the position of 
Enrolling and Engrossing Clerk. 

Mr. Corson: I now move we proceed to the election of Ser- 
geant -at -Arms of this body ; I nominate James Carney, of Lawrence 
County, for that position. Mr. Carney is one of our old residents, 
and is the only officer of the Convention we are asking for west of 
the river, and I hope he will receive the vote of this Convention. 

Mr. Van Buskirk: I nominate W. T. Buchanan, of Minnchaha 
County. 

Mr. Price: I take pleasure in seconding the nomination of 
Mr. Buchanan. 



18 SOUTH DAKOTA DEBATES, 1889. 

Nominations being declared closed, the Convention proceeded 
to VIVA VOCE vote, which resulted in the election of James Carney 
to the position of Sergeant -at -Arms, Tie receiving fifty votes, and 
Mr. Buchanan, twenty-one votes. 

Mr. Dickinson: I move we now take up the election of a 
Watchman, and name E. C. Warner, of Webster, Day County, 
for that office. 

Mr. Neill: There appears to be no other nominees, and we 
might expedite matters, by electing Mr. Warner by acclamation; 
that is the motion I make. 

Which motion was duly seconded. 

Mr. Cal dwell: Does the rule permit it? 

The President pro tern: I do not know of any rule upon the 
subject. 

The motion prevailed, and Mr. E. C. Warner, was declared 
elected to the office of Watchman of the Convention. 

Mr.'Matson: I move the election to the office of Messenger, 
Frank Hoppin, of Iroquois. 

Mr. Anderson: I place in nomination, Mr. P. D. Durflinger, 
of Hand County. 

The President pro tern: In the absence of a motion I shall 
take it the sense of the Convention to proceed as before to a VIVA 
VOCE vote. 

Mr. Hoppin received forty-eight votes, and Mr. Durflinger 
twenty-three. Mr. Hoppin was declared elected to the position 
of Messenger of this Convention. 

Mr. Willis: I will nominate to the office of Chaplain, Rev. 
J. A. Wakefield, of Brookings. 

Mr. Ramsey: I wish to place in nomination for the position 
of Chaplain, Bishop Hare, of Sioux Falls. 

Mr. Wakefield received forty-five votes, and Bishop Hare 
twenty-six. 

The President pro tern: By your vote as announced, Rev. 
Mr. Wakefield is elected Chaplain of the Convention. 

Mr. Sherwood: Are the offices now all filled? If that is the 
case, and it would be in order at this time, I offer this resolution 
and move its adoption. 

The Constitutional Convention of South Dakota, now duly 
assembled and organized, does hereby declare on behalf of the people 
of said State, that we do hereby adopt the Constitution of the 
United States. 



DRAWING SEATS 19 

Mr. Caldwell: I am not certain Mr. President, and will 
simply ask generally for information, if he has consulted the 
Organic Act, and whether or not this complies exactly with the 
requirements; I do not think such a resolution must be adopted. 

Mr. Sherwood: It is as the Omnibus Bill requires; it is ex- 
actly the language of the section. (Reading from the Act.) 

The President pro tern: The gentleman moves the adoption 
of this resolution as read by the Clerk. 

Mr. Neill: I suggest that that be adopted by rising vote. 
Which suggestion was acted upon without objection. 

The President pro tern: Seventy-three gentlemen have 
voted, and all have voted in the affirmative. The resolution is 
unanimously adopted. 

The President pro tern: We will now pass to the order of 
business. Unfinished business. 

A Member: I move that each delegate be allowed to write 
his name upon the desk blotter on the desk in which he prefers 
to sit (unless there are members who wish to change) and then 
the cards that are presented can be fastened upon the desks and 
compared with the names so written, as suggested by Mr. Caldwell, 
of Minnehaha. 

Mr. Lee: Would it not be well to have those of the same 
county delegation sit near each other; would not it be well to have 
a few changes. 

Mr. Caldwell: I believe it will give better satisfaction if 
there should be a determination of seats by lot. The custom in 
at least the Territorial Legislature, I believe is, that the number 
of seats to be drawn are written upon ballots, put into a box, and 
that they are then drawn out, then the one who gets the first 
number has the choice; it is not that he draws a seat per number 
but that he draws a choice; I believe that will be more satisfactory. 

The President pro tem: The gentleman at my right made 
a motion, but it is not before the Convention. 

Mr. Neill: I rise to a point of order; some of these motions 
being made out of the order of business; this all comes up in the 
proper place. We now have the matter of unfinished business. 

The President pro tem: The Chair entertained that business 
as long as no objection was made; if the gentleman will let his 
motion remain until \vc reach that order of business. 



20 SOUTH DAKOTA DEBATES 1889 

The President pro tem: The report of select committees is 
called for. 

Mr. Jolley: The committee on rules have met and agreed 
substantially upon the rules that they will submit for the consid- 
eration of this convention. That they will differ but slightly from 
the rules of 1885 convention, and the result is that the rules that the 
committee are going to report will have to be adopted. (Laughter.) 

We have met this dilemma in the Committee ; we find we have 
not a gentleman on this Committee who can write ; we will probably 
be ready to report for the consideration of this Convention to- 
morrow afternoon; there is one branch upon which the Committee 
are agreed, and I am instructed to report this afternoon, and this 
is substantially the views of the Committee. 

Sioux Falls, Dak., July 5th. 1889. 
MR. PRESIDENT: 

Your Committee on Rules have instructed me to report that 
the Joint Commission on the part of South Dakota to agree upon 
an equitable division of all property belonging to the Territory of 
Dakota, the disposition of all public records and adjust and agree 
upon the amounts of debts and liabilities of the Territory shall 
consist of seven members, to be appointed by the President of this 
Convention; that said Commission be entitled to a clerk, and to 
employ such assistance as they sha^l deem necessary. 

JOHN L. JOLLEY, 

Chairman. 

Mr. Jolley: For the purpose of bringing this report before 
the Convention, I move you, Sir, that the report be adopted. 

Mr. Neill: I second the adoption of the report. 

The President pro tem: You have heard the report of the 
Committee on Rules; the question before the Convention is upon 
the adoption of this report just read to you by Mr. Jolley. 

Mr : Jolley: That part of the report, that on which this rule* 
is founded is Section Six of the Omnibus Bill, which reads as 
follows: 

It shall be the duty of the Constitutional Conventions of North 
and South Dakota to appoint a joint commission, to be composed 
of not less than three members of each Convention, whose duty it 
shall be to assemble at Bismarck, the present seat of government of 
said Territory, and agree upon an equitable division of all property 
belonging to the Territory, of Dakota, the disposition of all public 
records, and also adjust and agree upon the amount of the debts 
and liabilities of the Territory, which shall be assumed and paid by 



JOINT COMMISSION 21 



each of the proposed States of North Dakota and South Dakota; 
and the agreement reached respecting the territorial debts and 
liabilities shall be incorporated in the respective constitutions, 
and each of said States shall oblige itself to pay its proportion of 
such debts and liabilities the same as if they had been created by 
such States respectively. 

The Committee have instructed me to report verbally that 
they considered this matter this morning and did not deem it part 
of their duty, and did not deem it the part of prudence to consult 
North Dakota before selecting this number. It is not one of 
those things to be considered ; suppose North Dakota had ten, and 
South Dakota had seven members of that Commissoin, it is for 
each of these states to say whether they will adopt the report 
which is agreed to by the Commission coming from each one of 
these states. After consultation with a number of the members 
of the Convention, the highest number asked for by any of the 
members of the Committee was placed at seven; the Committee 
reported seven; that they should proceed as quick as they are 
named, to Bismarck and at once agree upon the division; when 
that is made, then it comes before this Convention whether it 
will adopt their report. Mr. President, it is desirable and you 
assume the responsibility of appointing the committee recommended 
I should not like to stand in the way , or hinder a speedy settlement 
of the matter, that we may get the report of this Commission 
before us. If there is hurry necessary, I certainly shall not in 
Convention delay this action; the Committee before considered 
this matter fully and now ask your consideration of the report ; 
I am certainly in favor of receiving the report and relieving the 
Committee from a portion of their work. I would like to explain a 
little further why we made the number, "seven". We said if 
three politicians went up there and made a settlement, they would 
be in a sort of political purgatory at once; and it was not safe to 
serve any body of green politicians that way ; there are seventy-five 
members of that Convention, and if they have but three members 
of that Commission there would be seventy-two others behind them ; 
for moral force; we felt we ought to have just as. heavy moral force 
behind our men proportionately as they have behind theirs; we 
believe that these gentlemen going into the face of another Con- 
vention ought to have the moral force of numbers and therefore, 
we unanimously, on that ground, settled the number at seven. 

Mr. Hartley: I rise to a point of order; as I understand the 



22 SOUTH DAKOTA DEBATES 1889 

first motion will be received instead of being adopted; I therefore 
move that this report of this Committee be received. 

The President pro tern: The Chair did not understand the 
point of order ; this is a report of a select committee presented and 
read to the Convention; it is received without action on the part 
of the Convention; the Chair so understands it. 

Mr. Peck: I will move as a substitute, that the report be 
received and the adoption remain an after consideraion. 

The President pro tern: It is moved that the report simply 
be received by this Convention. Are you ready for the question 
on the amendment? 

Mr. Jolley: There can be no question about the parlimentary 
practice on such a motion as that (?) When this Convention ap- 
points a committee and asks a report at its hands and they present 
that report, it would be the heighth of discourtesy to make a 
motion to receive it; if the gentlemen do not like this report, or if 
there is anything wrong about it, they can correct it; the proper 
way is to vote it down or either send it back to that Committee, or 
another one, but to refuse to receive the work of a committee asked 
to make a special report is folly. 

The President pro tern: The Chair has already expressed its 
opinion. 

Mr. Lee: It is a distinction without a difference which is 
not right ; the question now is upon the adoption of the amendment. 
I move you that clause of the resolution authorizing a clerk, be 
stricken out, for the reason there is no provision for paying this 
clerk ; it is too much to ask a man to go up there and pay his own 
expenses. 

Mr. Clough: If it is in order, we believe that there is provision 
for the payment of this clerk, and believing that the provision is 
in this matter, we may mention, the Commission will have to have 
maybe, two or three clerks ; the work of the Commission will re- 
quire a great amount of accountant work. 

The President pro tern: The question as to an appropriation 
for a clerk is not before the House ; it is out of order ; the question 
is now upon the adoption of the amendment of the gentleman 
substituting the term "receive" this report for its adoption. 

Mr. Peck: I would like to inquire whether receiving this re- 
port, adopts it, or whether receiving it leaves the adoption of it 
until bye and bye, and leaves the power of appointing this Com- 



JOINT COMMISSION 23 



mittee unsettled. My understanding is, if we receive this report, 
it lays there for consideration by the Convention. If we adopt 
it, it is past consideration. 

The President pro tern: This report is received when it is 
accepted, when it is returned to this Convention and read, it is 
then received; then action is taken as to its adoption or non- 
adoption; does the gentleman insist upon the motion that the re- 
port shall be received? The opinion of the Chair is, that the 
motion is out of order, but the Chair is disposed to put it. The 
Chair is now going upon the theory of the mover of this motion, 
that this will not in any way commit the Convention to the action 
suggested in the report but simply allows this Committee to make 
this report to us. 

Mr. Peck: If you will allow me to say, we have already re- 
ceived this report, what I desire to do is not to part with my 
right and privilege to look this over and a little further consider 
the matter before it passes out of my hands, and if it is a fact 
we have received it already, and must vote upon the resolution 
that is the end of it so far as we are concerned; and this is action 
by the Convention that would almost force me to move that it 
lay upon the table until tomorrow, to accomplish my desire; all 
I want is to get a little time to consider the matter that the Com- 
mittee have had before them. 

Mr. Wescott: I second the motion of Mr. Peck, (of Hamlin) 
that it lay upon the table. 

Mr. Jolley: I rise to a point of order, that the motion is out 
of order. 

Which point of order was sustained by the Chair. 
Mr. Price: I move you, Sir, that the consideration of the 
resolution as presented, be made a special order for tomorrow after 
this body convenes. It is a matter of a great deal of importance 
and something that should be considered carefully. There is 
another question involved in this matter and the members ought 
to have plenty of time to think about it. It is this question, 
whether or not under the provisions of the Omnibus Bill you can 
delegate the power to the President of this Convention to appoint 
this Commission. I am not ready to say we can ! I think we should 
thoroughly investigate this matter. 

Mr. Jolley: On behalf of the Committee, would say, we are 



24 SOUTH DAKOTA DEBATES 1889 

glad the motion has been made to postpone action. So far as the 
suggestion made by Mr. Price, that question presented itself to 
the Committee and we took this view of it, by presenting the report 
that we did to the Convention, and the Convention adopting that 
report, if they did adopt it, made it the action of the Conven- 
tion, to delegate the power to the President to appoint the Com- 
mission ; if that was not sufficient power, then after the Commission 
had been appointed by the Chair, to have the Convention ratify 
that again. 

Mr. Atkinson: I have no objection as to this delay in this 
matter, but it seems to me that this Committee should be ap- 
pointed at the earliest possible moment and be on their way to 
Bismarck. It seems to me that we might arrange these matters 
now, as far as the difference in opinion as to whether the President" 
appoint or the Convention elect ; we can in a short time elect them 
this afternoon. Let them be appointed and let them be on their 
way. This delay is expensive. 

Mr. Wood: The suggestion of the gentleman with reference 
to the cost of delay is not important if my position is correct; I 
have been advised of the fact that the Convention at Bismarck is 
not fully organized and its organization will not be completed 
before Monday, consequently if our Commission should arrive before 
Tuesday, it will have to wait at Bismarck. The proposition sug- 
gested by my friend, Mr. Price, is a matter that presented itself 
to the Committee and so far as I am concerned, I' would like to 
hear it discussed in the Convention. There may be a question 
of delegation of power. The Committee of course considered the 
proposition; I would like to have the members of the Convention 
consider it for the purpose of making assurance doubly sure that 
we make no mistake in that regard. We had better take until 
tomorrow. I would not cause delay, but it is evidently the sense 
of the Committee that we take a little time to consider this matter ; 
today is Friday, tomorrow is Saturday, and you could not get 
started the way the trains run to Bismarck. As a matter of fact 
you will gain nothing by acting today. Sunday comes before you 
could reach Bismarck. I think the opinion is almost unanimous 
that the matter rest until tomorrow and give the gentlemen this 
time to examine the matter thoroughly and discuss it. 

Mr. Humphrey: If the only question at issue is the question 
of the authority of the Convention to confer upon the President 



JOINT COMMISSION 25 



the power to appoint, said appointments to be ratified by the 
Convention, it would save time that might perhaps be more 
profitable to give to the President in making his selection of the 
members of that Committee, if this is disposed of at this hour. 
Mr. President, it is not probable that the appointment would be 
made in time for the Commission to leave for Bismarck before 
Monday or Tuesday ; it is not probable that he would appoint them 
in a moment ; it is not probable that he would appoint them before 
sometime tomorrow, at the earliest time, and if this is the only 
question involved to necessitate delay, it seems to me it might 
be overcome by adding these words "said appointments to be rati- 
fied by this Convention". I would move you Mr. President, if 
it is in order to place a motion before the House to that effect, 
that the words, "said appointments to be ratified by this Con- 
vention" be added to the report of the Committee on Rules. 

Mr. Spooner: I support the original motion; I think this 
should be a matter of mutual consideration; the Committee have 
had an opportunity to consider it, and the Convention desires the 
same opportunity. 

The President pro tern: The question is upon making this 
partial report of the Committee on Rules the special order for to- 
morrow. 

Which motion prevailed unanimously. 

The President pro tern: The next order of business to occupy 
the attention of this Convention will be consideration of reports 
of standing committees. 

Mr. Price: I desire to present a matter which I think of con- 
siderable importance, to the two states about to be formed, and 
one upon which action should be taken; that is relative, Mr. Presi- 
dent, to the boundaries of the two new states. You will remember, 
Sir, that the Omnibus Bill provides that the boundary shall be 
changed from the Forty-sixth Parallel to the Seventh Standard 
Parallel. It is true, Sir, that there are two Seventh Standard 
Parallels in Dakota Territory ; a fact which may not generally be 
known. It seems to me that this is a matter of great importance ; 
that in defining the boundaries bewteen North and South Dakota, 
it ought to have the careful attention of this Convention. I say. it 
is fraught with importance for this reason; there are two Seventh 
Standard Parallels well defined, and both of them have been en- 
dorsed and reported, and have been through the Interior Depart- 



26 SOUTH DAKOTA DEBATES 1889 

merit, adopted. I have before me a diagram showing the exact 
condition of things relative to this matter, prepared by the Surveyor 
General of Dakota, together with a letter of explanation, which 
enters into the full details of the whole matter. It seems to me 
that if this question is not decided between the Conventions of 
both North and South Dakota and boundary lines agreed upon, 
well defined and interpreted, endless trouble and litigation will 
grow out of it. It is true if we shall adopt and unanimously 
declare the 7th Standard the boundary, North Dakota can claim 
one and South Dakota, the other, both approved by general gov- 
ernment. Another thing to be taken into consideration by this 
Convention especially is this ; that if a general plank shall go into 
this Constitution proclaiming and declaring the 7th Standard 
Parallel the boundary line, North Dakota will get a great many 
acres of land which does not belong to her, and in that land are 
several school sections which sometime we hope will be very val- 
uable ; but without discussing this matter further, 1 desire to move 
that a commission consisting of three members be appointed by 
the Chairman of this Convention to confer with a similar committee 
to be requested to be appointed by the North Dakota Convention, 
to determine upon and define the boundaries of this Territory. I 
will "suggest this further that I have before me a complete diagram 
of the whole matter and have a letter which explains the whole 
matter in its fullest details and the Committee whoever may be 
appointed especially, shall have the use of them. 

Mr. Elliott: I second the motion. 

Mr. Sherwood: It seems to me as this is a new matter also 
coming before the Convention, and as it seems new matter entirely, 
to all of us, that this should bear consideration as well as the matter 
we have already considered. If the other needs consideration, 
and if we are to send a commission to North Dakota to settle other 
differences, why would it not be weir to incorporate into their 
duties the settlement of this difference? I also move that this 
matter be made a special order of business for tomorrow. 

Mr. Price: I will consent that it be made a special order. 

Mr. Dickinson; I move you that a committee of five be 
appointed by the Chair to take this matter under consideration 
to report tomorrow as to the facts in the case as they find them, 
with recommendations. 

Mr. Neill: I think we will b,e under the necessity of placing 



ADJOURNED 27 



a great many committees, and we are forestalling the work of our 
Committee on Order of Business. The best thing we can do at 
the present time, is to adjourn at once and wait for their report. 
I move we do now adjourn. 

Mr. Clough: I move that when we do adjourn, it be until 
two o'clock. 

Mr. Neill: I accept that. 

The motion to adjourn, coming to a vote, a rising vote was 
called for, which resulted in forty-one votes in the affirmative 
and nineteen votes in the negative, and the Convention stands 
adjourned until two 'o'clock,, tomorrow afternoon. 



THIRD DAY. 

Sioux Falls, Dak., July 6th, 1889. 

Two o'clock P. M. 

The Hon. A. J. Edgerton, President, in the chair. 

The President of the Convention: The Convention will be 
in order. 

Prayer by the Chaplain as follows: 

Our Father who art in Heaven, at the beginning of this session 
come we before Thee to ask Thy guidance and Thy care; we will 
thank Thee in every word, in every thought and in every deed, and 
may all be done to the good of Thy people and to Thy glory. Help 
us to remember that the fear of the Lord is the beginning of wisdom ; 
and do Thou graciously bless us with the wisdom that will enable 
us to so direct, that ours shall be the credit and our posterity shall 
receive the benefit from this, our government, by us established. 
Give us Thy divine care, in Jesus name, 
AMEN. 

The President of the Convention: Reading of the Journal 
of yesterday. 

The Chief Clerk read the Journal of yesterday. 

The President of the Convention: Are there any corrections 
to be made in the Journal. 

Hearing none the Journal is approved. 

Mr. Coats, of Minnehaha, has not been sworn in, and if there 
is no objection he will now be sworn in as a member of this Con- 
vention. 

The following oath was administered to Mr. Coats, of Minne- 
haha, by Joe Kirby, Esq., Notary Public. 

You do solemnly swear that you will support the Constitution 
of the United States, and that as a member of this Convention, 
you, under the Act of Congress, enabling South Dakota to be ad- 
mitted as a State of the Union, will well and faithfully discharge 
the duties of that office according to your best learning and dis- 



GREETING FROM MONTANA 29 

cretion, with all good fidelity to yourself as well as to the people. 
So help you God. 

The President of the Convention: I will ask the Clerk to 
read a communication received from the President of the Constitu- 
tional Convention of Montana. 

The Chief Clerk read the communication as follows: 

Helena, Montana, July 5th, 1889. 
To Hon. A. J. EDGERTOX: 

Montana, standing on the threshold of statehood, reciprocates 
your cordial greeting, and indulges the hope that the Constitution 
which you have met to frame may be based upon the virtues and 
intelligence of the people, and when so framed, it may survive the 
years to come in all its vigor, unimpaired, until a hundred sovereign 
states have been erected into one confederacy, there to remain an 
indestructible and indissoluble union. 
(Signed:) J. K. TOOLE, 

Temporary Chairman. 

(Applause.) 

The President of the Convention: What is the further busi- 
ness before the Convention? I am informed that there is a special 
order made for this afternoon at two o'clock. 

Mr. Neill, of Grant: Mr. President, that was not set at any 
hour, and I think it should properly come in after the report of 
the Committee on Rules. 

Mr. Caldwell, of Minnehaha: Mr. Chairman, has the roll been 
called? 

The President of the Convention: The Chief Clerk will call 
the roll. 

Mr. Neill, of Grant: Mr. Chairman, I move the calling of 
the roll be dispensed with. 

The President of the Convention: It will be so ordered unless 
objection is made. 

What is the further pleasure of the Convention? 

Mr. Jolley, of Clay: Mr. President: Yesterday afternoon 
just before we adjourned, there was a motion made to postpone 
the consideration of the report of the Committee on Rules until 
today, and there was no hour specified at which the report should 
be taken up. The situation is this: The Committee made a 
partial report; the report of the number of employees they would 
ask to be appointed by this Convention, and a motion was made 
to adopt the report, and that is the question to come up at this 
time. 



30 SOUTH DAKOTA DEBATES 1889 

The President of the Convention: The report has been read 
to the Convention? 

Mr. Jolley, of Clay: Yes, sir. 

The President of the Convention: Is the Convention ready 
for the question? 

Mr. Kellam, of Brule: Mr. President, there has been a diversity 
of views expressed upon this question of the number and the forma- 
tion of this commission, and it migth result in a discussion which 
would make a voluminous and expensive report to print. I there- 
fore move that the Convention now go into committee of the Whole 
for the consideration of the report of the Committee on Rules, so 
far as made. 

A Voice: I second the motion. 

The President of the Convention: It has been moved that 
the Convention do now go into committee of the Whole for the con- 
sideration of the report of the Committee on Rules so far as made. 
Is the Convention ready for the question? Those of the opinion 
that the motion prevail will say aye; those opposed no. The 
motion is carried. I will call Mr. Sterling, of Spink, to the chair. 

Mr. Sterling, of Spink, took the chair. 

Mr. Price, of Hyde: Mr. Chairman, at this time I will call 
for the reading of the report of the Committee as presented yesterday. 

The Chairman of the Committe -. of the Whole ; The Clerk 
will read the report. 

The report of the Committee on Rules, as submitted yesterday, 
was read by the Chief Clerk. 

The Chairman of the Committee of the Whole: What will 
the Committee do with the report? 

Mr. Jolley, of Clay: Mr. Chairman, I move that the report 
of the Committee be adopted. 

A Delegate: I second the motion. 

The Chairman of the Committee of the Whole: Gentlemen, 
you have heard the motion that the report of the Committee be 
adopted. Are you ready for the question? 

Mr. Atkinson, of Brookings: Mr. President, I would like to 
move an amendment to strike out as much of it as authorizes them 
to employ a clerk, for the reason that there is no provision made to 
pay this clerk. 

Mr. Jolley, of Clay: Mr. Chairman, I would like to change 
my motion. I move that this Committee be instructed to report to 



CONSIDERATION OF RULES 31 

the Convention and recommend that the report be adopted. 

The Chairman of the Committee of the Whole: Exactly. 
There is no second to the motion to amend the motion. 

Mr. Wood, of Pennington: I second the motion. 

Mr. Jolley, of Clay: You second the amendment? 

Mr. Wood, of Pennington: No, sir. 

By the Chief Clerk of the Convention: Mr. Chairman, may 
I suggest that by the rules all motions and amendments shall 
be reduced to writing. 

Mr. Jolley, of Clay: Yes, but not upon the suggestion of 
the Chief Clerk, Mr. Chairman, but by the President or any of the 
members! (Laughter.) 

The Chairman of the Committee of the Whole: You have 
heard the motion and the amendment 

Mr. Wood, of Pennington: Mr. Chairman, I did not second 
the amendment but the motion. 

The Chairman of the Committee of the Whole: Very well, I 
did not so understand it. The question is upon the motion to 
adopt the report of this Committee. Those of the opinion that 
the motion prevail will say aye; those opposed will say no. 

The motion is carried. 

Mr. Jolley, of Clay: Mr. Chairman, there is no instruction 
for this Chairman to report to the President as yet. I was just 
going to move that the Committee rise and report to the Convention 
and recommend that the report be adopted. 

A Delegate: I second the motion. 

The Chairman of the Committee of the Whole: It is moved 
that the Committee of the Whole now rise and report to the Con- 
vention and recommend that the report of the Committee on rules 
be adopted. Are you ready for the question? Those in favor 
of this motion will say aye; those opposed no. The ayes have it 
and the motion prevails. 

The President of the Convention resumed the Chair. 

Mr. Sterling, of Spink: Mr. President, I have to report to 
the President of the Convention that the Committee of the Whole 
have had under consideration and recommend to the Convention 
the adoption of the report of the Committee on Rules. 

The President of the Convention: Gentlemen of the Con- 
vention, the Chairman of the Committee of the Whole, reports 
that the Committee of the Whole have had under consideration 



32 SOUTH DAKOTA DEBATES 1889 

and recommends to the Convention the adoption of the report 
of the Committee on Rules. Are you ready for the question? 
Those of the opinion that the motion prevail will say aye; those 
opposed no. 

The ayes have it and the motion prevails. 

The President of the Convention: I was not here yesterday. 
Did I understand the Chairman of the Committee on Rules to state 
that the Committee on Rules was ready to make a further report ? 

Mr. Jolley, of Clay: Yes, Sir, we are ready, Mr. President, 
to report when that order is reached. That report that has just 
been adopted was made a special order. 

Mr. Sherwood, of Clark: Mr. President, there was another 
matter made a special order for this time. 

The President of the Convention: Was there another special 
order, Mr. Clerk? 

The Chief Clerk read from the Journal of yesterday, as follows: 
"Mr. Price moved the appointment of a commission of three to 
confer with a like commission from the Constitutional Convention 
of North Dakota, to definitely determine the boundary between 
the two states." 

The President of the Convention: The time for the consid- 
eration of the special order has arrived. 

Mr. Price, of Hyde: Mr. President, I desire at this time to 
withdraw, that motion creating a special committee to consult 
with a like committee of the North Dakota Convention, with the 
consent of the second. 

A Delegate: I consent .to it. 

Mr. Price, of Hyde: Mr. President, now Sir, I desire to move 
that the whole matter relating to boundary be referred to a special 
committee to report to this Convention as soon as they can, and 
that that committee be empowered to send for persons and papers, 
or the Surveyor General or anybody else they desire to consult 
in regard to the matter. 

A Delegate: I second that motion. 

Mr. Neill, of Grant: Mr Chairman, I am opposed to raising 
special committees where it properly falls within the channel of 
the regular committee. We have been anticipating these matters 
somewhat and we have adopted our standing committees. The 
report will soon be made. This matter can be referred to the proper 



BOUNDARIES 33 



committee. I move you that this entire matter be referred to the 
regular standing committee when it is appointed, 

Mr. Price, of Hyde: I accept the amendment Mr. Chairman. 

By the President of the Convention: It is moved that the 
question of boundary be referred to the standing Committee on 
Boundaries. Are you ready for the question? Those of the 
opinion that the motion prevail will say aye; those opposed say no. 

The ayes have it and the motion prevails. 

The question of boundaries is referred to the Committee on 
Boundaries. 

The President of the Convention: I understand that the 
Committee on Rules is ready to make their further report. 

Mr. Jolley, of Clay: Mr. President, the Committee on Rules 
have instructed me to make their report in fact they make the 
report themselves. This morning at the meeting of the Committee 
this report was read and signed by all the members. Since it 
has been signed, on Rule No. 11 there will be a minority report. 
The rules as ordered reported by the Committee are as follows: 

Here Mr. Jolley read the report of the Committee on Rules 
with reference to the number of members to constitute the joint 
commission, and the introductory part of the report of the same 
Committee, with reference to standing committees. 

Mr. Jolley, of Clay: (Continuing.) With reference to this 
first committee, the Committee on Judiciary, touching members, 
the understanding of the Committee, which of course does not 
bind the Convention, was that two members should be appointed 
from each Judicial District, as provided for in the Sioux Falls 
Constitutional Convention (1885) and one at large. 

(Mr. Jolley here proceeded to read the report of the Committee 
with reference to rules for the government of the proceedings of 
the Convention.) 

This Rule 1 1 is the rule in which there is a disagreement of the 
Committee. (Reading Rule 11.) 

Mr. Wood, of Pennington: Mr President; I think the Chair- 
man of the Committee is under a misapprehension. There was a 
suggestion made by a member of the Committee to amend so far 
as related to our report on Rule 1 1 , but on the matter being pre- 
sented individually to the members, the minority concurred with 
the majority. I think the Chairman misunderstood what was 
said. \\Y all concurred in the report. 



34 SOUTH DAKOTA DEBATES, 1889. 

Mr. Jolley, of Clay: I certainly misunderstood. 

The President of the Convention: I understood' the Chairman 
of the Committee on Rules to move the adoption of the report. 

Mr Jolley, of Clay: I so intended. I move that the report 
of the. Committee on Rules be adopted. 

The President of the Convention: It has been moved that 
the report of the Committee on Rules be adopted. Are you ready 
for the question? 

(The motion was seconded.) 

(Cries of question, question!) 

Mr Wescott, of Deuel: Does this adopt the report without 
further discussion? 

The President of the Convention:.- I simply asked if the Con- 
vention was ready for the question. 

Mr. Wescott, of Deuel: I desire to move to amend, by reading 
these rules section by section, after which, if there is no objection 
made, they will be considered as adopted, and so on to the end. 
And if no objection is made at once, that the rules be adopted. 

Mr. Jolley, of Clay: The rules as reported were the rules that 
governed the Constitutional Convention of 1885. These rules as 
reported here were substantially the same. 

Mr. Wescott, of Deuel: Mr. Chairman; I don't doubt that, 
but I don't think we can with only one reading intelligently com- 
prehend them. If my motion is seconded, I hope the House will 
sustain me. 

A Delegate: Well, I'll second your motion. 

Mr. Huntley, of Jerauld: There is one little thing in the 
rules, Mr. President, it seems that two members may demand a 
roll call, and we may be kept here a very long time. It ought at 
least require five. I move in that particular an amendment that 
it be changed from two to five. 

The President of the Convention: It is moved by the Chair- 
man of the Committee on Rules that the report be adopted. It 
is moved by the delegate from Deuel that the rules be read section 
by section and that each rule be acted upon separately. Is the 
Convention ready for the question on the amendment of Mr. 
Wescott, of Deuel? 

A Delegate: I did not understand the motion was seconded. 

The President of the Convention: It was seconded. The 
question is now upon the amendment by the gentleman from Deuel 



CONSIDERATION' OF RULES 35 

County that the report shall be read rule by rule and adopted by 
the Convention. Is the Convention ready for the question? As 
many as are of the opinion that the amendment be adopted say 
aye; those of the contrary opinion say no. The noes appear to 
have it. The noes have it. 

Mr. Huntley, of Jerauld: Mr. President, I move that the rule 
be amended so as to require five members to call for a roll instead 
of two. 

(The amendment was seconded.) 

Mr. Clough, of Codington: Mr. President, we studied that 
matter somewhat, and we believe that the. ends of justice might 
sometimes be reached better upon the call of two members, rather 
than five. 

Mr. Jolley, of Clay: Mr. President; if I was afraid to make 
any record here so that the boys who sent me would not know it, I 
would make it ten instead of two. 

Mr. Neill, of Grant: The moving of any motion to get it 
before this House requires two members. There is then no dif- 
ference between an ordinary motion and the calling of the yeas 
and nays on any question, under these rules. We might find our- 
selves annoyed very much by some captious member or two. I 
think five is certainly a very low limit, and I hope this amendment 
will prevail. 

The President of the Convention: The question before the 
Convention is on the amendment of the gentleman from Jerauld. 
The recommendation of the Committee is that two delegates 
may call for the roll. The amendment is to strike out "two" 
and insert "five". Are you ready for the question? Those of 
the opinion that the amendment prevail will say aye; those op- 
posed say no. The Chair is unable to determine. Those in favor 
of the amendment will rise and stand to be counted. You may 
now be seated. Those of the contrary opinion will rise and stand 
to be counted. Be seated. 

The Secretary announced that there were in favor of the 
amendment, 30 ayes, and against the amendment 42 noes. 

The President of the Convention: So the amendment is lost. 
Are there any further amendments? The question now recurs 
on the original motion that the report of the Committee be adopted. 
Is the Convention ready for the question? Those of the opinion 
that the motion prevail will say aye; those opposed say no. The 



36 SOUTH DAKOTA DEBATES 1889 

ayes have it, and the report of the Committee on Rules is adopted. 

What is the further pleasure of the Convention? 

Mr. Spooner, of Kingsbury: Mr. Chairman, I notice that 
there are in the city, and perhaps in this audience, some who have 
been members of both of the prior Conventions, namely, Hon. H. 
J. Campbell, and Hon. G. C. Moody, and I move you that they 
be accorded the courtesies of the floor. 

A Delegate: I second the motion. 

The President of the Convention: It is moved that all mem- 
bers of the two Constitutional Conventions, of 1883 and 1885, be 
accorded the privileges of the floor. Those of the opinion that the 
motion prevail will say aye ; those of the contrary opinion will say 
no. The ayes have it and the motion prevails. 

Mr. Neill, of Grant: Mr. Chairman, I move you, Sir, that 
Ivan W. Goodner, of Huron, and Theron G. Brown, of Sioux Falls, 
be employed as stenographers of this Convention, according to 
the provisions made in the report of the Committee on Rules. 

Mr. Hole, of Beadle: I second the motion. 

The President of the Convention: It is moved that Ivan W. 
Goodner, of Huron, and Theron G. Brown, of Sioux Falls, be 
employed as stenographers of this Convention. Is the Convention 
ready for the question? Those of the opinion that the motion 
prevail will say aye; those of the contrary opinion will say no. 
The ayes have it and Mr. Goodner and Mr. Brown are elected the 
Stenographers of this Convention. 

Mr. Cal dwell, of Minnehaha: Mr. President; it is desired by 
the parties having charge of the printing of the Convention that 
the Convention will indicate the probable number of finished copies 
of the Journal they will have printed. It is necessary that the 
type set for the Daily Journal shall be so arranged as to make a 
complete book, when it shall be printed day by day, and this 
Journal the completed Journal, as I understand it, is furnished 
from the appropriation which has been made for the expenses of 
the Convention, and it is desirable that there shall be at once an 
indication as to how many copies will be needed. 

The President of the Convention: If the gentleman makes 
no motion, there is nothing before the Convention. 

Mr. Caldwell, of Minnehaha: I desire that someone who has 
better ideas in regard to this than I have should make this motion. 
I merely ask on behalf of the Secretary of the Territory and on 



NUMBER OF JOURNALS 37 

behalf of the printers of the Journal that there shall be an indi- 
cation as to this matter. 

Mr. Neill, of Grant: Mr. President, I move you, Sir, that 
there be 500 bound copies printed of the Journal. 

Mr. Caldwell, of Minnehaha: I doubt, if it be the object of 
the gentleman to furnish them for the use of the Convention 

Mr. Neill, of Grant: Yes, Sir. 

The President of the Convention: Is the Convention ready 
for the question? I would suggest that this had better go to a 
committee, from the fact that we only have a limited amount of 
money. As I understand we are restricted in the amount which 
shall be used for the printing. 

Mr. Caldwell, of Minnehaha: Yes, Mr. President, that is so. 
There is only $3750 for the two Conventions, as I remember the 
amount. 

Mr. Davies, of Edmunds: Mr President, I move as an 
amendment that this be referred to the Committee on Printing. 

The amendment received a second. 

The President of the Convention: Is the Convention ready 
for the question? 

Mr. Caldwell, of Minnehaha: Mr. President, it is very neces- 
sary that this matter be determined at a very early time, because 
the accumulation of type for the Daily Journal saps the facilities 
of the printing institution so that it is necessary that it be determined 
very soon. 

Mr. Wescott, of Deuel: Mr. Chairman, I move as an amend- 
ment that it be fixed at 300 instead of 500. 

The President of the Convention: The question is upon the 
motion to refer to the Committee on Printing. The motion pre- 
vailed and the subject was referred to the Committee on Printing. 

Mr. Jolley, of Clay: Mr. President, I move you, Sir, that 
300 copies of the rules that have just been adopted be printed for 
the use of the members of the Convention. 

Mr. Kellam, of Brule: I move as an amendment to ma! 
150. 

Mr. Jolley, of Clay: Mr. President, all I have to say is this: 
The reason why the Committee lias been twenty-four hours in 
report ing is from tin- faet that \ve have hunted from one end of 
the Territory to the other so as to find the printed rules and not 
make it necessary for us to write them out. 



38 SOUTH DAKOTA DEBATES 1889 

A Delegate: Mr. Chairman, I wou'd favor the amendment 
that 150 be the number. It sounds better anyhow. 

The President of the Convention: The question is upon the 
amendment by the gentleman from Brule that the number be fixed 
at 150. Is the Convention ready for the question? 

Mr.- Caldwell, of Minnehaha: Mr. President; of course the 
report of this Committee will go in the Journal and there are suf- 
ficient numbers of the Journal to furnish to members the text of 
this report ; and it seems to me it would be a wise thing to either 
dismiss the text of this report from the Journal or else vote down 
a proposition to print the report separately. 

The President of the Convention: The question is on the 
amendment of the gentleman from Brule that the number be fixed 
at 150. Those of the opinion that this motion prevail will say 
aye; those of the contrary opinion say no. The ayes appear to 
have it. The ayes have it. 

(Crie.s of "Division, division".) 

The President of the Convention: It is moved that 300 copies 
of the Rules be printed for the Use of the Convention alone; and 
to that motion Mr. Kellam, of Brule, proposes an amendment that 
only 150 copies be printed for the use of the Convention, and it 
is upon the adoption of that amendment that the Convention is 
called upon now to act. Now, as many as are in favor of the 
amendment that only 150 copies be printed, rise and stand to be 
counted ; those of the contrary opinion rise and stand to be counted. 
There are 49 ayes and 22 noes, so that the amendment is adopted. 
The question now recurs upon the original motion as amended, 
that is, that 150 copies of the Rules be printed for the use of the 
Convention. 

Mr. Harris, of Yankton: Mr. President, I move an amend- 
ment by inserting after the word "Rules of the Convention", the 
words, "and list of the standing committees." 

A Delegate: I second the amendment. 

The President of the Convention: The question is upon the 
motion that 150 copies of the Rules be printed. Mr. Harris, of 
Yankton, moves an amendment that 

A Delegate: Mr. President, I move as a substitute that there 
be printed of the regular Journal instead of these 150 extra copies 
of the rules, 300 copies of that Journal giving the rules and the names 
of the committees. 



RULES 39 

The President of the Convention: It is suggested to me that 
under one of the rules this is not in order, but I will not raise it 
if it is not raised by anyone. 

Mr. Kellam, of Brule: Mr. President, I do not care about 
this, but the names of the members of the committees will not 
appear on the Journal that contains the report. I understood 
the motion of Mr. Harris to be that this same copy of the Rules 
should contain the names of the standing committees. That is 
the only information we care about. We don't care what standing 
committees there are, but we want to know what members are on 
the several committees, so that this motion will not meet the end. 
The standing committees are not yet announced, and the Journal 
of today will give us no information upon that subject. 

The President of the Convention: It is moved that 150 copies 
of the Rules be printed for the use of the Convention. Mr. Harris 
moves an amendment that the members of the committees, as I 
understood that is, the list of the standing committees, should 
be printed at the same time. It is moved as a substitute that 
this all be printed in the Journal of today. In other words, if I 
understand the question, it is that no extra copies of the rules be 
printed, and no extra copies of the list of standing committees 
be printed except that contained in the Journal of today, and that 
300 copies of the Journal of today be printed. 

Mr. Peck, of Hamlin: Mr. President, I fail to understand 
how we are going to get a list of the names of the members of the 
committees today, inasmuch as they will not be named by yourself. 
I fancy we can get enough if we can get 300 copies of the Journal 
of today and of the Journal upon the day after the names are an- 
nounced. 

Mr. Caldwell, of Minnehaha: The amount for the printing 
is S3, 750 for the two Conventions as I am 'informed by Secretary 
Richardson, and it will probably be necessary to economize some- 
what in the matter of printing, and the motion which has been 
offered as a substitute is a step in that direction, and 1 therefore 
hope that it will be adopted. 

The President of the Convention: I will state the question 
again; it is in effect that no rules and no list of the standing com- 
mittees be printed except as they occur in the Journal of toe lav, 
and that 300 copies be printed. 

Is the Convention rea-ly for the question? Those of the 



40 SOUTH DAKOTA DEBATES 1889 

opinion that the motion prevail will say aye ; those of the contrary 
opinion say no. The ayes appear to have it. The ayes have it. 

I was in hopes that some member would suggest to the Con- 
vention, that it would be perfectly impossible to carry out that 
order. I cannot announce those committees today. 

Mr. Dickinson, of Day: It was not my idea that the names 
of the committees be published but simply the list of the committees ; 
but whenever the committees are named they will also appear, 
and we can have 300 copies of the Journal of that day with the 
names of the members. 

Mr. Humphrey, of Faulk: I move that the President of this 
Convention be instructed to inform the Constitutional Convention 
of North Dakota by telegraph that the Constitutional Convention 
of South Dakota has provided for a joint commission of seven 
to agree upon an equitable division of all property belonging to 
the Territory of Dakota, the disposition of all public records, 
and to adjust and agree upon the amount of debts and liabilities 
of the Territory, and request that a like commission be appointed 
by the Constitutional Convention of North Dakota. 

A Delegate: I second the motion. 

The President of the Convention: It is moved that the Presi- 
dent of the Convention, by telegram, inform the Constitutional 
Convention at Bismarck of the action of this Convention with ref- 
erence to the joint commission. 

Mr. Neill, of Grant: Mr. President, I believe we gave our 
committee authority to act on that subject. If that is not the 
understanding that the committee has we simply wish to know it. 
I do not wish to take any action here that would be discourteous 
to that Committee. 

Mr. Humphrey, of Faulk: Mr. President; the motion finally 
referred to the Committee on Rules was to the effect that a special 
committee be appointed to communicate with North Dakota and 
ask them how many they wanted on the commission and when 
they should meet. The Committee thought it would be hardly 
proper we thought it would be more compatible with the dignity 
of South Dakota that the President of this Convention should 
notify them, instead of the Committee on Rules. 

Mr. Wood, of Pennington: Mr. President ; in that we assume or 
arrogate to ourselves the right to direct North Dakota to appoint 
the same number that we have, seven. Now, we get the righi to 



JOINT COMMISSION 41 

appoint this commission from the same source that they do. With 
that exception I think the motion is all right. It would be better 
for us not to put this motion in this form, I think. We ought not 
to suggest to North Dakota what to do at all. The law is in op- 
eration there as well as here. I move to amend by striking out 
that portion of the motion requesting them to appoint a like com- 
mission consisting of a like number. 

A Delegate: I second the motion. 

Mr. Humphrey, of Faulk: Mr. President, I accept the amend- 
ment. 

The President of the Convention: Do I understand the 
gentleman to accept the amendment in full or only so far as the 
number is concerned. 

Mr. Wood of Pennington: I think it was accepted only so 
far as the number is concerned. 

The President of the Convention: It is moved by Mr. Humph- 
rey, of Faulk, that the President of the Convention be instructed 
to notify the Constitutional Convention of North Dakota, by tel- 
egraph, that the Constitutional Convention of South Dakota 
had provided for a joint commission of seven, and that they be 
requested to appoint a like number 10 confer with them. To this 
Mr. Wood, of Pennington, moves an amendment that all that part 
of the resolution requesting the Constitutional Convention of 
North Dakota to appoint a like number be stricken out. 

Mr. Humphrey, of Faulk: I accept the amendment with the 
consent of my second. 

The President of the Convention: Is the Convention ready 
for the question? 

A Delegate: I accept the amendment. 

The President of the Convention: The question then recurs 
upon the original proposition that the President of this Convention 
notify the Constitutional Convention at Bismarck, by telegram, 
that this Convention lias adopted a resolution providing for tilt- 
appointment of a joint commission of seven to assemble at Bismarek. 
As many as are of the opinion that this motion prevail will say 
as manv as are of the eont rary 'opinion say no. The ayes 
appear to have it. The ayes have it. 

Mr. Voting, nf Lake: Mr. President, it is very evidei: 
the majority of the members here that \ve are lal-orin^ under very 
serious ineonvenienee from lack of eopies of the Omnibus Hill and 



42 SOUTH DAKOTA DEBATES 1889 

of the Constitution. I will, therefore, move you that 100 copies 
of the Omnibus Bill be requested of the Secretary of the Interior 
of the United States, and that 100 accurate copies of the engrossed 
copy of the Sioux Falls Constitution be furnished for the use of 
the members of this Convention. 

Mr. Price, of Hyde: Mr. Chairman, I move to lay that motion 
upon the table. This Omnibus Bill has been printed by the 
Argus-Leader, and numerous other papers in the Territory, and 
it would take until after this Convention has adjourned before we 
could get it anyhow. 

Mr. Lee, of Spink: Mr. Chairman, I think that is very wise. 
Most of us have brought it with us anyway. 

Mr. Young, of Lake: Mr. President; there seems to be some 
question about the legitimacy of the form of the motion; but its 
importance is such that if it cannot be disposed of finally at this 
time I would ask the unanimous consent of the Convention to 
withdraw it until Monday, and then put it in such a form that it 
can go through. 

The President of the Convention: The Chair hears no objec- 
tion and consent is given. 

What is the further pleasure of the Convention? 

A Delegate: Mr. President, I move that we now adjourn 
until Monday at two o'clock. 

A Delegate: I second the motion. 

The President of the Convention: It has been moved that 
the Convention do % now adjourn until Monday at two o'clock. 
Those of the opinion that the motion prevail will say aye; those 
qf the contrary opinion say no. 

The ayes have it, and the Convention stands adjourned until 
Monday next at two o'clock P. M. 

ADJOURNED. 



FIFTH DAY. 

Sioux Falls, Dakota, July 8th, 1889. 

Two o'clock P. M. 

The Convention assembled pursuant to adjournment. 

Prayer was offered by the Chaplain as follows: 

Oh Thou God of hosts, we thank Thee for the privilege we 
enjoy of life, liberty, and the pursuit of happiness; and we would 
ask Thee that Thou wilt help us, that we so conduct the affairs 
that are placed in our hands, that the world shall be better that 
we have lived therein. These favors we ask, and Thy continued 
favor, in Jesus' name, 

AMEN. 

After the reading of the Journal had proceeded some little 
time Mr. Caldwell moved that further reading of the Journal be 
dispensed with. 

Which motion prevailed. 

Mr. Kellam: As I remember the motion of Mr. Jolley, (of 
Clay) for printing three hundred copies of the rules was disposed 
of; I understood that. there was an amendment, or substitute car- 
ried? 

Mr. Caldwell: There are several of the members, (myself 
among the number) who have not yet received today's Journal 
at the desk. 

Voices from different parts of the house: "None here". 

Mr. Dickinson: The mover of that substitute as given by 
the Journal, is a name I do not recognize as a member of this 
Convention. It should read Dickinson, not Harris. 

The President: The Clerk will note the correction. 

Mr. Caldwell: I believe it is the ordinary practice, and would 
certainly be well in this instance at least, in order to prevent in- 
cumbering the Joiirnal, with motions which may be made and not 
carried, that such motions shall not be entered upon the minutes; 



44 SOUTH DAKOTA DEBATES 1889 

unless the motion made has reference to a subsequent action. 
Where a motion is merely made and not carried, I suggest that 
they be omitted from the records. 

The President: You now move that hereafter the Clerk be 
required to omit from the Journal, the motions that are made and 
lost, that they do not really become the proceedings of the body; 
would not it be well to refer that to the Committee on Rules. 

Mr. Caldwell: I was suggesting merely, parlimentary practice 
of deliberative bodies, without any rules. 

The President: The next order of business is communications 
and presentations of petitions. 

Mr. Caldwell: If it will be in order to make a verbal com- 
munication under this order of business I would, on behalf of the 
Commissioner of Immigration of the Territory, state. that he has 
forwarded to me several copies of a map of North Dakota, and 
also maps of South Dakota for distribution to the members; and 
likewise copies of these hangers (Indicating.) These are from 
his office and there is one for each member of the body; and also 
the Secretary has forwarded to me a copy for each member of 
Long's Legislative Handbook, containing a copy of the Sioux 
Falls Constitution and a large amount of statistics which will be 
desirable for this body to have, and that he requested me to have 
them distributed. 

Mr. President: Under the order of unfinished business of 
the preceding day, I will state to the Convention that I have not 
been able to complete, fully complete the list of the committees ; 
I will have it tomorrow at the session of the Convention. I can 
only announce the committee that will goto Bismarck. The com- 
mittee forming a part of the joint commission to proceed to Bis- 
marck under the Omnibus Bill, is Mr. Kellam, of Brule; Mr. McGil- 
licuddy, of Pennington; Mr. Neill, of Grant; Mr. Caldwell, of Min- 
nehaha; Mr. Elliott, of Turner; Mr. Price, of Hyde; and Mr. Brott, 
of Brown. 

Mr. Coats: My business was such that it was impossible 
for me to be present at the first two days' meeting of this Con- 
vention; I shall be obliged to ask to be excused and have it so ap- 
pear upon the record. 

The President: If there is no objection, it will be so ordered. 
The Chair hears no objection ; it is so ordered. 



CONSTITUTION OF 1885 45 

The President: The Chair appoints Charles C. Walts and 
A 1 bert J. Keith, as Pages. 

Mr. Jolley: I make the report verbally that the Committee 
on Rules, ask that Rule 43, page 4, as published in these proceed- 
ings, be amended by striking out the words "two pages" and in- 
serting in lieu thereof, the words "three pages". The Committee 
arrived at this conclusion for this reason to give a page to this side 
of the hall and an extra Page for the presiding officer of this Con- 
vention, and the officers. 1 move you that the words "two Pages", 
in line four, of Rule Forty-three, be stricken out and insert in lieu 
thereof, the words "three Pages". 

Which motion prevailed, and the Rule was declared so amended. 

Mr. Price: The members on this side of the hall have not 
been furnished copies of the Journal. 

The President: Only a few copies have been received from 
the printers. 

Mr. Price: It is a small matter, but the Journal reads in line 
31, page 9, that Mr. Coats moved the motion with relation to pro- 
curing 100 copies of the Omnibus Bill, be tabled ; that should appear 
Mr. Price, instead of Mr. Coats. 

The Presdient The Clerk will make the necessary change. 

Mr. Caldwell: I would ask if there has been any direction 
yet to the Commission to go to Bismarck, as to the time it shall go. 

The President: I sent the communication ordered by the 
Convention, on Saturday, to the President of the Constitutional 
Convention at Bismarck ; it probably went so late that he did not 
receive it until after the adjournment of the Convention on Satur- 
day; I have received no answer as yet. 

Mr Young: As we are forming a document here, the import- 
ance of which is so great that it is absolutely necessary that it be 
correct in every detail, and although I do not know as to the quality 
of the copy in Long's Legislative Manual, I do know that these 
copies that have been distributed by the Central Committee and 
the copy in the Argus-Leader are different, greatly; I notice in 
Section Five, of Article Eight, that there is a discrepancy in regard 
to three words in one section ; now I do not think that such copies 
are right copies to have as a basis of our work, therefore, I re- 
submit the following resolution: 

RESOLVED, That a committee of five In- appointed whose duly 
it shall be to procure from the President the original and authentic 



46 SOUTH DAKOTA DEBATES 1889 

engrossed and certified copy of the Constitution, and procure the 
same to be carefully and correctly copied, and to have the same 
carefully and correctly printed under their supervision and laid 
upon the desks of the members, and the same committee be in- 
structed to procure and place upon the tables of the members 
carefully and correctly printed copies of the Enabling Act, under 
which this Convention has assembled; the same committee be also 
instructed to procure from H. M. Avery, the assistant secretary 
of the last Convention, the engrossed copy of the Constitution in 
his possession, and that the same committee be instrticted to care- 
fully compare said copies with a view to the correction of any 
mistakes. 

Mr. Young: I move the adoption of that resolution. 

Mr. Dickenson: I second the motion. 

The President: Do you mean the engrossed copy or the en- 
rolled copy? Under the authority of the last Convention it was 
committed to my custody and has remained there until today. 

Mr. Young: I was instructed there were two copies; one in 
your possession and one in the possession of Mr. H. M. Avery. 

The President: I cannot tell what Mr. Avery has; I have 
the original copy; the only copy that can be authority anywhere; 
that was committed to me by the Convention, and ordered by the 
Convention to be kept by me, until it was deposited with the Sec- 
retary of State of the state to be. My intention was to present 
that at some proper time to this Convention, as I believe now it 
belongs to and should be the property of this Convention. As I 
said before, the original enrolled bill, I have just as signed by the 
members of that Constitutional Convention. I only make this 
suggestion for the information of the members of the Convention. 

Mr. Peck: Not having been furnished the Journal of Satur- 
day, in which the several committees were named, I have no way 
of knowing whether a committee was appointed on Constitution; 
I presume in that connection that the Committee is to correct that 
Constitution; we have parted with our rights as a Convention to 
correct that Constitution except through that Committee; and 
we require of the Committee to get such information as will enable 
them to give us a correct copy of the report. 

Mr. Caldwell: It occurs to me that the necessities of the case 
are scarcely sufficient to warrant the printing of another Consti- 
tution. It seems to me that if the Chairman should have the 
official copy of the Constitution it would be possible to thereby 
indicate to this Convention the changes which the Committee 



CERTIFIED COPY 1885 47 

might deem to be necessary, by comparison with this copy of 
Long's Legislative Handbook, that the Convention would then 
have in its possession, that which would enable it to understand 
what it has got to do in the work before it. The time required to 
print a sufficient number of copies from this enrolled copy of the 
Constitution would be greater than the benefits to be derived from 
it would amount to. I would therefore oppose the motion as it 
is made. 

Mr. Sterling: I simply wish to say that I agree with the 
speaker last upon the floor in this respect. It seems to me that 
with the official copy here, such as I understand the Chairman to 
say he has, a comparison can be readily made with the copies that 
we have at our desks ; it can be ascertained whether the copies are 
true or not, while we have the original here and the time and ex- 
pense would be both saved. I would oppose the resolution. 

Mr. Young: It seems to me a misapprehension that some 
are laboring under is this: The Committee will have this perfectly 
correct copy to work with in making their reports; I would for 
that reason supply them with copies that they might work with 
uniformity, so that the comparison might be made by one com- 
mittee instead of every committee. 

Mr. Peck: I have since my remarks been served with a copy 
of the Rules; I find committee twenty-three are appointed for 
revision and correction of the Constitution; I understand that 
they have that in hand, and one copy will be quite sufficient for 
seven men to make the correction from, I fancy. 

The resolution reaching a vote of the Convention, was lost. 

Mr. Dickenson: Referring to the top of the ninth page of the 
Journal, Mr. Neill of Grant, moved that five hundred "bound" 
copies of the Journal be printed instead of five hundred "extra" 
copies. That motion was referred to the Committee on Printing. 

The President: Mr. Dickenson asks that the Journal be cor- 
rected by striking out the word "extra" and inserting the word 
"bound". 

Mr. Caldwell: With regard to this matter I would like to 
urge the necessity of prompt action on the part of the Committee 
on Printing in determining the number of bound volumes the Con- 
vention will desire ; there are certain mechanical questions involved 
as to the facilities for doing the printing, and if it is possible for 



48 SOUTH DAKOTA DEBATES 1889 

this Committee to determine pretty near about it, it will greatly 
facilitate the matter of providing the Journal. 

The President: It will be pretty difficult for the Committee 
to act until they are appointed. 

Mr. Caldwell: It WILL be pretty difficult! (Laughter.) 

Mr. Neill: I think when it comes to be left to the Committee 
on Printing, to determine the number of copies, that they will be 
as much at 'sea as the Convention now is, in recommending the 
number. This Convention might just as well settle the number 
of copies at once, as to do it at a later date, and therefore to bring 
this matter before the Convention and have it decided, I move 
you that five hundred bound copies of the Journal be printed; 
that is of the complete Journal. 

Mr. Jolley: Can you entertain that motion while this matter 
has already been sent to a Committee? 

The President: Not if any objection is made. 

The President: The Chair hears no objection. 

Mr. Spopner: I rise to a point of order; it is not the proper 
motion to submit ; there was a previous motion referring the matter 
to the Committee on Printing. 

The President: The gentleman from Kingsbury raises the 
point of order that on Saturday some motion was before the Con- 
vention and the Convention referred the matter to the Committee 
on Printing; the Chair is of the opinion that the point of order is 
well taken. 

Mr. Caldwell: If it is not to be regarded as discourteous to 
a committee not yet in existence (laughter) I would move that 
the matter of bound copies, be withdrawn from the Committee on 
Printing and again brought before the House, for consideration. 

Mr. Peck: I will gladly second that if in order; can probably 
facilitate the work of the Committee, if we can give them such 
consideration. 

Mr. Caldwell: It is suggested that it would make the Journal 
in better form if the motion referring this to the Committee on 
Printing, be reconsidered; I would by consent of the House, with- 
draw the previous motion, substituting therefor, the motion to 
reconsider the vote by which the subject of bound copies of the 
Journal was referred to the Committee on Printing. 

Which motion prevailed. 

Mr. Neill: The motion I believe before the House, is the one 



ROUTINE 49 



made Saturday, that five hundred bound copies of the Journal be 
printed for the use of the Convention; am I right? 
The President: Yes, Sir. 

Mr. Neill: Mr. President; my reason for making that the 
number of bound copies is this: We will get five hundred about 
as cheaply as we will get three hundred, because the greater part 
of the expense in getting up a book of that kind comes in the first 
three hundred or five hundred. Yet we do not wish to act with 
extravagance that would require us to modify that order. I 
think we should order the largest limit compatible with the needs, 
and with the expenses that this Convention could well afford to 
pay. I, for these reasons, move that we have five hundred copies 
of the bound volume of the Journal. I do not think that three 
hundred copies would be as satisfactory as five hundred ; it would 
only make something like five or six to each of us. 

Mr. Peck: I would second that if the mover would designate 
his manner or recommendation of dividing those; how they will 
be distributed. 

The motion of Mr. Neill, (of Grant) prevailed. 
Mr. Peck: I would make a resolution supporting the same 
thing; that six copies be given to each member of this Convention, 
and the balance remain in the Parlimentary Library for further use. 
Mr. Caldwell seconded the motion. 

Mr. Caldwell: I would suggest the correction of the motion 
as I intended it; I didn't intend "Parlimentary Library". 

Mr. Peck: That simply shows where I came from, that is 
all. (Laughter.) 

By rising vote the motion prevailed. 

Mr. Goddard: It seems to be necessary for me to be absent 
tomorrow; I ask to be excused. 

Th'e President: If there is no objection, the member will 
be excused tomorrow; the Chair hears no objection. 

The President: I think I shall be able to announce the com- 
mittees tomorrow at two o'clock; I had hoped to do it today. It 
has been more difficult than I at first supposed possible to enter- 
tain all the conflicting interests and claims of members and local- 
ities; therefore, I have to claim the indulgence of the Convention 
for another day. 



SO SOUTH DAKOTA DEBATES, 1889. 

Mr. Price: I move we do now adjourn until tomorrow at 
two o'clock. 

Which motion prevailed. 

The President: I announce the name of Frank E. Clough, as 
the third Page of this Convention. 



SIXTH DAY. 

Sioux Falls, Dakota, Tuesday, July 9th, 1889. 

Two o'clock P. M. 

Convention called to order by the President, in the chair. 

Prayer by the Chaplain as follows: 

O God, our Heavenly Father, we ask Thee that Thou wilt be 
with us individually ; that our every act may be such as to meet 
the approval of all the others in this Convention, and may we as a 
whole so administer the affairs placed in our hands as to meet with 
Divine approval; and may we in voicing the sentiments of the 
people that have sent us, also voice the will of God. In Jesus' 
name we ask it, 

AMEN. 

Reading of the Journal of yesterday. 

The President of the Convention: Are there any corrections 
of the Journal? 

Mr. Clough, of Codington: Mr. President; ought it not to be 
the fifth instead of the fourth day? I ask the question for in- 
formation. 

The President of the Convention: I don't know myself what 
the rule is in making up a Journal. I never made up a Journal, 
but the rule for conventions and legislatures is that they count 
from the first day to the last, including Sundays. 

Mr. Caldwell: Mr. President, I would say that it is the prac 
tice, so far as the Territory is concerned, to skip Sunday and to 
make the Journal show the number of days of the session so that 
yesterday would have been the fifth day. 

Mr. Clough, of Codington: I move, Mr. President, that it 
be changed to the 5th day instead of the 4th. 

The President of the Convention: If there is no objection, 
it will be so ordered, and the Clerk is ordered to make the correction. 

Mr. Neill, of Grant: In the minutes of yesterday there is 
a mistake in the name of Neill 



52 SOUTH DAKOTA DEBATES 1889 

A Delegate: On the second 1 page, third line, in agreement 
with the suggestion of the gentleman from Clay, made a few days 
ago, in favor of not cumbering our records and of having them 
accurate I think they ought to change the words "two Pages" 
to the word "two" and the words "three Pages ' to "three", in 
the interests of accuracy. 

Mr. Jolley, of Clay: If the gentleman will read on further 
be will find the words "two dollars" also, and he will discover that 
it is necessary that this be left as it is, in order to prevent mis- 
understanding. 

The President of the Convention: I would say that I think 
the Clerk has recorded the motion as the Chairman of the Committee 
on Rules made it. If it is a mistake, it is a mistake of the Conven- 
tion in passing the resolution of the Chairman of the Committee 
on Rules. 

Mr. Jolley, of Clay: There is no mistake made, either by the 
Chairman of the Committee or by the Convention, your honor 
Mr. President, I mean I thought I was trying a case before your 
honor! (Laughter.) If the word changed was simply the word 
"two" we wouldn't know whether it was the words "two dollars" 
or "two Pages". The Committee instructed me to insert the words 
"two Pages". 

The President of the Convention: I suggested that if there 
was any mistake it was the mistake of the Committee and of the 
Convention, and not of the Clerk. 

Mr. Cal dwell, of Minnehaha: Mr. President, as this Journal 
is making history, and as those connected with it would like to be 
right, I would say that it is H. M. Avery instead of H. A. Avery. 

I believe also that it is the custom of the Clerk to sign each 
day's proceedings and have it appear upon the Journal. 

The President of the Convention: If that is the rule then it 
is my mistake. It is one continuous session; I never saw it so in 
my life. The Convention will probably adopt the recommendation 
of the Committee on Rules in that respect. I would suggest here- 
after that any mere clerical error of that kind be suggested to the 
Clerk, and he make the entry, as he will at once, on the Journal. 
It is not necessary to take either the time of the Convention nor 
to encumber the record; a clerical mistake of that kind will be 



THE MENNONITES S3 



corrected at once by the clerk. 

Mr. Atkinson, of Brookings: Mr. President, I would inquire 
if it is the intention to have the word "Territorial Library" here, 
or "State Library", at the bottom of the page. The point is 
whether we intended to have it in that way we have it here. The 
motion was that they should be deposited in the "Parlimentary 
Library", and that was corrected and made State Library. 

Mr. Peck, of Hamlin: You simply did not adopt my sug- 
gestion and got it worse, that's all! (Laughter.) 

The Presdient of the Convention: I will now submit the list 
of Committees. Perhaps I should say to the Convention that I 
have no hope no expectation that the committees will suit every 
member of the Convention. It has been rather of a laborious 
duty to have all the different locations satisfied and to have the 
different interests in the Convention made content ; and it has 
been impossible to so make up the list that everyone would be 
satisfied. The Clerk will read the list of committees. 

(The Chief Clerk here read the appointment of committees.) 

The President of the Convention: What is the further pleas- 
ure of the Convention? 

Mr. Williams, of Bon Homme: Mr. Chairman, if it is in order 
at this time, I have a petition I would like to present. This peti- 
tion comes from a religious society in Bon Homme County, setting 
forth their views as belonging to what is known as the non-resistant 
sect setting forth their privations in Russia, their sacrifices in 
property, and their emigration to America, and asking that this 
Convention incorporate into the Constitution an exemption from 
military duty; which resolution I move be received and referred 
by the President to the appropriate committee. 

The President of the Convention: It will be so ordered unless 
objection is made. Have you any suggestion as to the committee? 

Mr. Williams, of Bon Homme: Mr. President, I think it 
would be proper to refer it to a committee on military. 

Mr. Kellam, of Brule: Mr. President, if in order at this time 
I desire to present a resolution and move its adoption. Perhaps 
I can read it more readily than the Clerk: 

WHEREAS, By resolution of this Convention authorizing the 
same, the president of this Convention has named and appointed 
as the members of the joint commission on the part of South Dakota 
to agree upon an equitable division of the property belonging to 
the Territory of Dakota, the disposition of all public records, and 



54 SOUTH DAKOTA DEBATES 1889 

adjust and agree upon the amount of debts and liabilities of the 
Territory, which should be assumed and paid by each of the States 
of North Dakota and South Dakota, the following named members 
of the Convention, to-wit: A. G. Kellam, V. T, McGillicuddy, 
Henry Neill, E. W. Caldwell, William Elliott, C.. H. Price, S; F. 
Brott. Now be it 

RESOLVED, That the aforesaid appointment by the President 
be, and the same is, by this Convention hereby adopted and in all 
things confirmed. 

Mr. President, I move the adoption of the resolution. 

Mr. Hole, of Beadle: Mr. President, I second the motion. 

The President of the Convention: The question, is upon the 
adoption of the resolution just made by Mr. Kellam, of Brule, is 
the Convention ready for the question? Those of the opinion that 
the resolution be adopted will say aye ; those of the contrary, opin- 
ion say 'no. The ayes have it and the resolution is adopted. 

Mr. Cldugh, of Codington: Mr. Chairman, if it is in order I 
move that the motion requiring the Secretary to furnish 200 copies 
of the daily minutes be reconsidered, and that 500 be ordered 
printed. 

Mr. Lee, of Spink: Mr. Chairman, I second the motion. 

The President of the Convention: I would suggest to the 
gentleman from Codington that possibly, the motion to reconsider 
be first made. 

Mr. Clough, of Codington: I move to reconsider the motion. 
The reason is that newspapers all about are asking for copies. . 

A Delegate: I second the motion. 

The President of the Convention: It has been moved and 
seconded to reconsider the motion requiring the Secretary to fur- 
nish 200 copies daily of the Journal. Is the Convention ready 
for the question? 

Mr. Price, of Hyde: Mr. President, I am in favor of that 
motion, but I move an amendment that the Chief Clerk be instructed 
to lay upon the desk of each member a certain number of copies 
each morning. 

The President of the Convention: Is the Convention ready 
for the question? 

Mr. Caldwell, of Minnehaha: Mr. President, I rise ,to the 
point of order that more than two days have elapsed since the 
motion was made, and it cannot be reconsidered. 



ROUTINE 55 



Mr. Jolley, of Clay; Mr. President, the rules require that two 
business days yesterday was Monday and this is Tuesday. 

Mr. Caldwell,, of Minnehaha: Mr. President, I sit down! 
(Laughter.) 

Mr. Wescott, of Deuel: Mr. Chairman; is is not possible that 
having ordered 200 on the previous day, we can order 200 more 
today. 

The President of the Convention: The question is upon the 
motion to reconsider. Is the Convention ready for the .question? 
Those of the opinion that the motion prevail will say aye ; those 
of the contrary opinion will say no. The ayes have it and the 
motion prevails. 

Mr. Clough, of Codington: Mr. Chairman, I move that the 
Chairman of the Committee on Printing be directed to secure 500 
copies and that six copies' be laid on the desk of each member. 

Mr. Atkinson, pf Brookings: Mr. President, I move an amend- 
ment to the motion by making it the duty of the Messenger to do 
this distributing. (Great Laughter.) 

Mr. Wood, of Pennington: Mr. President, it seems- to me 
that the motion ought to provide for their being delivered before 
the session each day, 

Mr. Clough, of Codington: I accept the amendment. 

The President of the Convention: Is the Convention ready 
for the question? As many as are of the opinion that the motion 
be so amended say aye; those to the contrary say no. The ayes 
have it. 

As many .as are of the opinion that the motion prevail, as 
amended, say aye; those of the contrary opinion say no. The 
ayes have it and the motion prevails. 

Mr. Zitka, of Bon Homme: Mr/President, I move you that 
the Constitution of 1885 be ordered read in this Convention to- 
morrow for the purpose that the different portions thereof may 
be referred to the appropriate committees. 

A Delegate: Mr. President, I second the motion. 

The President of the Convention: It has been moved that 
the Constitution of 1885 be read in this Convention tomorrow in 
order that the different portions thereof may be referred to the 
appropriate committees. 'Is the Convention ready for the question? 
As many as are of the opinion that the motion prevail, will say 



56 SOUTH DAKOTA DEBATES 1889 

aye; those of the contrary opinion say no. The ayes have it. 
The motion prevails. 

Mr. Caldwell, of Minnehaha: Mr. President, this was done 
in order that it might be referred to the appropriate committees- 
Mr. Neill, of Grant: Mr. President, I ask the unanimous 
consent of the House to present the following resolution and press 
its action at the present time, to avoid the necessity of sending 
it to the Committee: Resolved that R'lle 33 be amended by 
adding thereto the words "and no such motions and resolutions 
shall be printed in the Journal". If the House would like, I will 
explain the reason for the motion,- and I move that the resolution 
be adopted. 

The President of the Convention: Unless otherwise ordered 
this will go to the Committee on Rules. 

Mr. Jolley, of Clay: Mr. President, I would like to read Rule 
33: "All motions and resolutions not pertaining to the current 
business of the Convention, shall be, upon being read, referred by 
the President to the appropriate committee without debate." 

Mr. Neill, of Grant: Mr. President, I move you, Sir, that the 
House give consent to the present consideration of this motion. 

A Voice: Mr. President, I second the motion. 

The President of the Convention: It is moved that the rules 
be suspended in order that the House may consider the resolution. 
Those of the opinion that the motion prevail will say aye; thosft 
of the contrary opinion will say no. The noes have it. The 
motion is lost and the resolution is referred to the Committee on 
Rules. 

Mr. McGillicuddy, of Pennington: Mr. President, I have a reso- 
lution which I will send to the Clerk's desk for reading. 

(The Chief Clerk read the resolution, which was to the effect 
in substance, that a committee of five be appointed whose duty 
it should be to communicate with President Harrison, requesting 
him to suspend action on all questions being considered by the 
Interior Department relating to the establishment of mineral 
claims on school lands in Dakota until North and South Dakota 
were admitted to statehood.) 

The President of the Convention: The resolution is referred 
to the Committee on School Lands. 

Mr. Clough, of Codington: Mr. President, I hold in my hand 
a letter, and hanging upon the Stenographers' desk is a seal from 



STATE DEBT 57 



Mr. John Banvard, of Watertown. I move you, Sir, that it be 
referred to the Committee on Seal. 

The President of the Convention: If there is no objection 
they will go to the Committee on Seal. 

Mr. Price, of Hyde: Mr. President ; Delegate Jeffries, of Clark 
County, was unexpectedly called home after the session of the 
Convention yesterday, and he desires to be excused by the Con- 
vention until next Monday. 

The President of the Convention: If there is no objection 
he will be excused. The Chair hears no objection. 

Mr. Anderson, of Hand: Mr. President; the nature of my 
private business is such that it will be necessary for me to be 
absent from the Convention about two days, and I ask leave of 
absence for Wednesday and Thursday. 

The President of the Convention: If there is no objection 
you will be excused. 

Mr. Neill, of Grant: Mr. President, I move you that the 
President of this Convention be empowered to excuse members 
of this Convention for three days, without reference to a committee. 

The President of the Convention: The resolution is referred 
to the Committee on Rules. 

Mr. Neill, of Grant: Mr. President, I offer the following 
resolution: Resolved, that the Committee on Schedule provide 
for the election of clerks of the court in the settled counties of the 
state. 

The President of the Convention: Referred to the Committee 
on Schedule. 

Mr. Corson, of Lawrence: Mr. President, I desire to present 
a resolution to the Convention, and ask its reference to the Com- 
mittee on Public Accounts and Expenditures. 

(The resolution was read by the Chief Clerk and was in sub- 
stance that the indebtedness of South Dakota assumed from the 
Territory in becoming a state be not included in the limit of $500- 
000; that this limitation be denned in the Constitution so as to 
state that the indebtedness of the State, created by the State, 
shall not at any time exceed $500,000; that the inheritance of 
South Dakota's share of the Territorial indebtedness is not PER 
SE a state debt. 

The President of the Convention: Referred to the Committee 
on State, County and Municipal Indebtedness. 



58 SOUTH DAKOTA DEBATES 1889 

Mr. Smith of Charles Mix:' Mr. President, I would ask to 
be excused from this Convention for tomorrow. 

The President of the Convention: If there is no objection 
it is so ordered.- 

The President of the Convention: What is the further pleas- 
ure of the Convention? 

Mr. Lee, of Spink: Mr. President, if there is no objection I 
should be glad to occupy about a minute asking a personal favor. 

The President 'of the Convention: Proceed, if there is no 
objection; 

Mr. Lee, of Spink: Mr. President and Gentlemen 'of this 
Convention: When I ca-rrie 'to Dakota I retired to private life; 
I am here prepared, however, doing the best I can, practicing for 
the purpose of manufacturing and making a speech or lecture or 
whatever you may call it not to run for any" office or to make 
any money, but to do a little good. T should like to deliver the 
lecture here in this 'hall. I have been asked to several times by 
the 'church people. 'I want especially ' Mr. Caldwell to come. I 
would like to have you all come, not that I expect to : play Henry 
Clay or Daniel Webster, but because with my hand lifted toward 
Heaven I want to do good. : I hope the members will listen to the 
announcement, and give Father Lee one more chance. My text 
will be "The Fatherhood of God, the Brotherhood of Man, and the 
Good of Prohibition Generally." (Great applause.) 

The President of the Convention: The Clerk suggests that 
if the delegates will leave their names on the blotter or upon a 
piece of paper upon their desks, he will have them printed and placed 
on the desks so that everyone will know the seat. 

Mr. Neill, of Grant: Mr. President, the committee appointed 
to go to Bismarck would like to ask of this' Convention whether it 
would be willing to grant them one of the official stenographers, 
if they deem it necessary that they have one of them. We think 
perhaps that the labors of this Convention 'as a whole will not be 
very cumbersome, as it will be mostly committee work, and one 
of the official stenographers will perhaps be enough to leave "be- 
hind, and the other might be a great convenience and an accom- 
odation to us; and if we should deem it necessary to have him, 
we would like that the President of this Convention be authorized 
to grant him that leave of absence to accompany us. 

Mr. Atkinson, of Brookings: Mr. President, I understood the 



STENOGRAPHER TO JOINT COMMISSION 59 

arrangement of this Committee was that they -had the power to 
employ such help as they need. It occurs to me that if they need 
a stenographer that they ought, in this great Territory, to be able 
to secure one without taking our stenographers away from us. It 
would not be only a hardship for us to lose them, but it would be 
an additional expense to take one from here, for there is not only 
his mileage and expenses on the road, but it would consume sev- 
eral days on the road. They certainly can find some talent in the 
great Territory of Dakota at that time. 

Mr. Neill, of Grant: Mr. President, it was a matter of economy 
with us, and in order not to hire an additional stenographer, because 
the pay of this one is going on while he is here; and also the fact 
that it is impossible to secure a stenographer at Bismarck. Governor 
Mellette has to come to Watertown to get one, otherwise to St. 
Paul or Minneapolis. 

Mr. Ringsrud, of Union: Mr. President, I move you that the 
President of this Convention be authorized to designate one of 
the official stenographers of this Convention to accompany the 
Commission to Bismarck. 

A Delegate: I second the motion. 

The President of the Convention: It has been moved that 
the President of the Convention shall designate one of the official 
stenographers to accompany the Joint Commission to Bismarck. 
Is the Convention ready for the question? Those of the opinion 
that the motion prevail will say aye ; those of the contrary opinion 
say no. The ayes have it and the motion prevails. 

Mr. Zitka, of Bon Homme: Mr. President, I move that the 
Convention do now adjourn. 

Mr. Van Buskir-k, of Codington: Mr. President, I would like 
to be excused for two days. Our term of court is in session and 
I have been telegraphed to come there. 

The President of the Convention: It is so ordered unless 
objection is made. 

Mr. Caldwell, of Minnehaha: It is desired by several of the 
members to meet Mr. Hubbard, the financial head of this institu- 
tion; and if he is now present I would like that he be presented, 
in case any of the gentlemen desire to fix up their finances. 

The President of the Convention: It has been moved that 
the Convention do now adjourn. Those of the opinion that the 
motion prevail will say aye; those of the contrary opinion say no. 



60 SOUTH DAKOTA DEBATES 1889 

The ayes have it and the Convention stands adjourned until 
tomorrow at two o'clock. 

ADJOURNED. 



SEVENTH DAY. 

Sioux Falls, Dakota, July 10, 1889. 

Two o'clock P. M. 

Convention called to order by the President. 

The Chaplain: Oh Lord, our God, Thou who art the Ruler 
of the Universe, who are the God of nations, we thank Thee, that 
Thou hast given us the privilege of taking a part in this the forma- 
tion of a government that shall be worthy the name of the children 
of a living God. We do ask Thee, that Thou wilt help each in- 
dividual member of this Convention, that in our going out and 
coming in before this people we shall reflect credit upon those who 
have sent us here, and in the work that Thou hast intrusted to our 
hands may we do great good for humanity ; in the name of Jesus 
Christ we ask these favors, 

AMEN. 

The President: The suggestion that I made yesterday after- 
noon I think will expedite matters somewhat and tend to stop 
encumbering the record; that where the Journal shows a clerical 
error only, for the delegates to call at the Clerk's desk afterwards 
and it will be corrected without taking the time of the Convention 
and without incumbering the records. If it is a substantial error 
needing the attention of the Convention, it may be b.tter to call 
the .attention of the Convention to it, but if a clerical error it can 
be changed by the Clerk at the Clerk's desk at any time. 

Mr. Price: I move that the reading of the Journal be dis- 
pensed with. 

Which motion prevailed by a rising vote of thirty ayes, to 
nineteen nays. 

Mr. Spooner: I desire to present a resolution for the purpose 
of memorializing Congress upon the development of our artesian 
system, and request that it be referred to the Committee on Federal 
Relations and Internal Improvements. 



62 SOUTH DAKOTA DEBATES 1889 

Mr. Sterling: I ask for the reading of the resolution. 

Thereupon the Clerk read as follows: 

A Memorial to the Congress of the United States requesting 
the appointment of a Commission for the purpose of making a 
geological and hydrographic survey of the State: 
To THE CONGRESS OF THE UNITED STATES: 

The Constitutional Convention of the State of South Dakota 
duly assembled, would respectfully represent to your honorable 
bod'y that it has been demonstrated that within the limits of South 
Dakota there exists what is known as an artesian basin or system, 
but that its extent has not been fully determined. And that a 
desire is being generally expressed by the people of South Dakota 
that the matter be investigated and the extent of the system fully 
determined and its availability for the purposes of agriculture and 
manufactures be determined. 

Now, therefore, the said Convention would respectfully memor- 
ialize your honorable body and request you to appoint at the 
earliest possible time a Commission for the purpose of making, and 
with power to make, a thorough and complete geological and hydro- 
graphic survey pf the State, including the mineralogical formation 
of the Black Hills and the artesian basin of South Dakota, and 
that you make the necessary appropriations therefor. 

The President: It will be referred as requested. 

Mr. Jolley: I have a report from the Committee on Rules; I 
will read it. 

Sioux Falls, Dakota, July 10, 1889. 
MR. PRESIDENT: 

Your Committee on Rules have instructed me to report that 
they recommend that Rule 33 shall be amended to read as follows: 

RULE 33. All motions and resolutions not pertaining to the 
current business of the Convention, shall be, upon being read, 
referred by the President to the appropriate committee without 
debate, and such motion or resolution shall not be printed in the 
Journal until reported from the committee. 

And I am further instructed by the Committee on Rules to 
report that they recommend an additional rule for the government 
of this Convention, to-wit ; 

RULE 45. That the President of this Convention is authorized 
and empowered to grant leave of absence to any member of this 
Convention for a period not to exceed three days. 

JOHN L. JOLLEY, 

Chairman. 

Mr. Jolley: I move the report of the Committee on Rules 
be adopted. 

Which motion prevailed. 



LOANING SCHOOL FUHDS 63 

Mr. Caldwell: I would ask if this that has been just done 
means an amendment to the Rules ? 

The President: I understand it means an amendment of 
the rules in this: One rule is amended and a new rule added. 

Mr. Jolley: Rule 33 is amended, and Rule 45 is a new rule. 

Mr. Caldwell: I believe it is required that for an amendment 
of the Rules it is necessary that there be a two-thirds majority? 

Mr. Jolley: The gentleman from Minnehaha is correct. 

Mr. Caldwell: I raise the question that there is nothing but 
a roll call or registering the vote would show a vote to be a two- 
thirds majority. Where a special number of any deliberative 
body is required in order to adopt any measure we must do -some- 
thing which is documentary evidence of the fact that a sufficiency 
is secured, 

Mr. Jolley: If there is no individual objects and no ayes 
and nays or division called for it is presumed that two-thirds are 
voting in the affirmative on a measure under consideration. 

The President: There is a rule which reads differently in 
some of the states ; in some of the states the constitutional provision 
is that in certain duties, it shall take two-thirds of all elected to 
the office to constitute a quorum ; this is two-thirds of those present. 
I apprehend the usual rule is, that all those that are voting are the 
only ones considered voting, unless it lacks a quorum; and if all 
vote aye, and none vote no, it does not need a roll call to decide 
that two-thirds are voting aye. This will be the ruling of the Chair 
unless the Convention orders otherwise. 

Mr. Sterling: I have a resolution I desire to present. 

WHEREAS: It is provided by Section 11 of Article VIII of 
the Constitution that all moneys belonging to the school funds 
may be under such restrictions as the Legislature may direct, be 
loaned and 

WHEREAS, Section IX of Article VIII of the Constitution pro- 
vides no lands mentioned in this article shall be leased except for 
pasturage and meadow purposes. 

BE IT RESOLVED: That said Section IX of the Constitution 
be so amended that said school lands may be leased for pasturage, 
meadow and agricultural purposes. 

The President : What committee do you ask its reference to ? 

Mr. Sterling: The Committee on School Lands. 

Mr. Price: I desire to present a resolution, and desire to have 
it referred to the Committee on State Institutions; and here is 
another I desire to go to the Legislative Committee. 



64 SOUTH DAKOTA DEBATES 1889 

The President: The Secretary will read for the information 
of the Convention. 

The Clerk: A proposition to amend Section III of Article III 
of the constitution of 1885: 

RESOLVED: That Section Three of Article Three of the Con- 
stitution of 1885, be amended by striking out "who shall not have 
attained the age of twenty-five years" where they appear in the 
first and second clause of said Section Three. 

The President: That is referred to the Legislative Committee. 

The Clerk: Proposition to amend Section I of Article XIV: 

RESOLVED: That the charitable and penal institutions of the 
State of South Dakota shall consist of a penitentiary, insane hos- 
pital, a school for the deaf and dumb, a school for the blind, a 
school for feeble minded children, a reform school, and such other 
charitable and penal institutions as may be provided by law. 

The President: That is referred to the Committee on State 
Institutions. 

Mr. Clough: I offer the following resolution: 

RESOLVED: That in all counties where no Auditors exist, one 
shall be elected in conformity with the Constitution at the October 
election. 

The President: Referred to the Committee on Schedule. 

Mr. Dickenson: Have we not a special order for today 
reading of the Constitution? 

The President: The. Secretary will proceed to read the Con- 
stitution under the order of the Convention, yesterday. 

The Clerk: Article 1, Name and Boundary, 

Mr. Zitka: If the Convention wishes to signify certain por- 
tions, I am willing. 

The President : Do I understand that as the Clerk finishes 
reading one section or article that he waits for the members of 
the Convention to make any suggestions with reference to referring 
such propositions to certain committees? 

Mr. Zitka: I think that would be better; the Clerk will read, 
and at the end of each article, wait just a moment. 

Mr. Caldwell: I would suggest that the Constitution be read 
merely by captions of the various articles; it would be sufficient 
to indicate the proper committee to which the body of the article 
be referred, as the purpose of this reading is merely for reference 
by title it seems to me it will be accomplished faster ; I make that 
motion, Mr. President. 

Which motion was duly seconded. 



REFERENCES TO COMMITTEE 65 

Mr. Goddard: Have we any authority to copy anything that 
we know is unreliable as the copy of the Constitutions are? 

The President: I suppose if its accuracy is questioned it 
will have to be compared with the official copy of the Constitution 
which will probably reach here tonight. I shall place the other 
at the disposal of the Chairman of the proper committee. 

Mr. Lee: Would not it be wise to postpone this reading 
until the other comes, and save reading it twice? 

Mr. Cal dwell: However desirable it might be for general 
purposes to have a correct copy of the Constitution, it can hardly 
be regarded as necessary for the purposes for which the motion 
is made, which is merely that the various portions of the Con- 
stitution may be referred to the proper committee. 

The President: The motion before the Convention is that 
the Constitution be read by separate articles so that the Conven- 
tion may be informed that certain propositions may be referred 
to proper committees; the gentleman from Minnehaha moves an 
amendment, that instead of the articles being read, that the cap- 
tions of each article be read for the information of the Convention; 
it is upon the amendment the Convention will now act. 

The amendment prevailed. 

The President: The Secretary will proceed and read the cap- 
tions of each article. 

The Clerk: Article 1: Name and Boundary. 

Mr. Caldwell: The reference will be made by the President 
of the Convention without a formal motion from the body of the 
House. 

The President: What did I understand? 

Mr. Caldwell: That the reference to the proper committee 
will be made by the President of the Convention ; as the caption 
of the article is read, the President will announce the Committee 
to which it is referred. At least that is the ordinary practice. 

The President: If it is the ordinary practice, it is where I 
never have been; this is the Constitution that the people have 
ratified. This does not have to be referred except as the committee 
itself may act upon it. If it is a resolution that comes in, it may 
be referred. 

Mr. Caldwell: It was the purpose as stated by the gentleman 
who made the motion and by the gentleman who moved the amend- 



66 SOUTH DAKOTA DEBATES, 1889. 

ment, that it be read merely for the purpose of dividing up the 
Constitution among the various committees, in order that it may 
be regularly and formally in the hands of these bodies that are to 
consider it and report their action to this Convention. It does 
not stand here therefore in the nature of a constitution that has 
been adopted by the people. Merely as an ordinary document for 
the consideration of this body and its reference would therefore 
simply be properly taking the course which ordinary matters for 
the consideration of the body to take. 

The President: I would suggest to the gentleman from Min- 
nehaha County, that I differ with him entirely as to the powers of 
this Convention; if the Convention so orders I shall make the 
reference. 

Mr. Clough: I then move that at the reading of each one of 
these captions it be assigned to the proper committee. 

Mr. Hole: It has been my understanding, and I think it is 
the common understanding that the fact when this was submitted 
to the people, it fixed this as the constitution of the State of Dakota, 
with few exceptions. I see no purpose, no object other than merely 
for comparison that this Constitution be referred to any committee. 

Mr. Davies: I think we are placing a great responsibility upon 
our worthy President in naming the committees in this way. It 
seems to me it will be a very difficult task for the President to refer 
these without any aid without placing the work in conflict with 
the work done yesterday where this same work has been referred 
to committees. 

Mr. Caldwell: If I may be excused for speaking so many 
times, I would say, that of course these various committees, (for 
instance, on Name and Boundary) all these various committees 
have been appointed but they can act only upon such matters as 
are definitely and regularly referred to them by this body. While 
it is true that this Constitution has been adopted by the people, still 
there are many portions of it other than those enumerated in the 
Enabling Act which will require some sort of fixing and change, in 
order that they shall agree with the requirements of the Omnibus 
Bill. I find there are some provisions in this Constitution, which 
will not need to be changed or amended, still nevertheless they ought 
to go to the various committees to be reported back to this House 
and then be incorporated in a definite official formal document 



REFERENCES TO COMMITTEE 67 

which shall be prepared by this body to be submitted to the people 
next October. It does not make any difference whether any par- 
ticular proposition has any change in it whatever; it nevertheless 
has to be voted upon, has to be first submitted by this Convention; 
the fact of the provision having been approved at the election in 
September, 1885, does not give it any standing as a part of the 
fundamental, law of this commonwealth at this time, and as stated 
by the gentleman from Bon Homme the purpose of this reference 
is to refer this document to the various committees in order that 
it may be properly reported to this body; I. would therefore again 
respectfully refer to the motion which has been made. 

The President: The question before the Convention is 
whether these separate articles shall be referred to the separate 
committees ; the Constitution called the "Sioux Falls Constitution". 

The motion prevailed. 

Mr. Huntley: As the Secretary proceeds to read the captions, 
I move that the President assign it to the various committees. 

The President : I have no idea that this Convention can amend 
one of these articles except that it comes within the requirements 
of the Omnibus Bill ; I want it to be understood that this reference 
is by the Convention. 

Mr. Zitka: I made the motion that the different provisions 
of this Constitution be referred so that those which might be changed 
may be considered by the proper committees and that those com- 
mittees may turn to their work or proceed to work. Some of us 
are anxious to get home, and they do not know as yet what their 
duties are with reference to the Convention; therefore let the Con- 
stitution be referred to the different committees, that each committee 
may make their report after examination; if there is anything to 
do; let them do it, if they cannot do anything, that ends their 
work. The captions in each and every one of these articles in this 
Constitution indicates to which committee that portion of the Con- 
stitution shall be referred, and I do not think there will be any dif- 
ficulty whatever on the part of the President. 

Mr. Young: I move the Preamble be referred to the Com- 
mittee on Phraseology. 

Mr. Caldwell Not desiring to be captious, I would question 
that as being the proper reference ; it seems me that it should go to 
the Committee on Bill of Rights. The very name, is the declaration 



68 SOUTH DAKOTA DEBATES 1889 

as to what is the purpose of this Committee on Arrangement and 
Phraseology; its functions comprise only the work of getting 
together in proper shape the matter which has finally been adopted 
by this Convention. 

Mr. Young:: There is certainly nothing in this Preamble 
that interferes with any rights or that grants any of our personal 
rights ; the subject matter is certainly now within the scope of the 
duties of the Committee on Bill of Rights. The changes to be 
made in the Preamble is simply to change the name of the state ; 
it seems to me that comes purely within the scope of the duties 
of the Committee on Arrangement and Phraseology. 

Mr. Boucher: It seems to me as I look at it, that as the Pres- 
ident is to assign these captions, that this motion is out of order. 

Mr. Sterling: I second the motion; it is my idea that there 
was no committee now to which this might be assigned; there is 
no committee given us by the Committee on Rules on Preamble; 
hence I think as the gentleman moved that the Committee on 
Arrangement and Phraseology is the proper Committee to which 
this might be referred, for the reasons stated. 

Mr. Williams: It seems to me the only change that is neces- 
sary to be made is in the name of the State, that the proper com- 
mittee would be the Committee on Name, Boundary and Seat of 
Government. Perhaps I am not informed. 

Mr. Fellows: I move as an amendment, that it be referred 
to the Committee on Bill of Rights. 

Which motion was lost by a rising vote of forty-one ayes, and 
fourteen nays. 

The original motion prevailed, by a rising vote of thirty-eight 
ayes and ten nays. 

The President: The Preamble stands referred to the Com- 
mittee on Arrangement and Phraseology. 

Clerk: Article 1, Name and Boundary. 

The President: Unless otherwise directed, this will be re- 
ferred to the Committee on Name and Boundary. 

Clerk: Article 2, Division of the Powers of Government. 

The President: Will the gentleman from Bon Homme indi- 
cate what committee he desires that referred to ? 

Mr. Zitka: I will leave it to you Mr. President, to indicate 
the Committee. 



REFERENCES TO COMMITTEE 69 

Mr. Caldwell: In order that the tail may go with the hide, I 
move that it be referred to the Committee on 'Arrangement 
and Phraseology. 

Motion was not seconded. 

Mr. Spooner: I move that it be referred to the Executive 
and Administrative Committee. 

Which motion prevailed, and the President declared it so 
referred. 

Clerk: Article 3, Legislative Department. 

The President: Referred unless otherwise ordered, to the 
Legislative Committee, No. 3. 

Clerk: Article 4, Executive Department. 

The President: Unless otherwise ordered, to Committee Xp. 
2, Executive Department. 

Clerk: Article 5, Judicial Department. 

The President: Committee No. 1, unless otherwise directed, 
Judiciary. 

Mr. Caldwell: I would call attention to the fact that part of 
Article 5, refers to apportionment of the Judicial Circuits o the 
State, and would ask if it might not be proper to refer so much 
of it to the Committee on Apportionment. 

Mr. Caldwell: I withdraw the suggestion. 

Clerk: Article 6, Bill of Rights. 

The President: What committee will you have that referred 
to? 

Mr. Westcott: I move that it be referred to the Committee 
on Bill of Rights. 

The President: Referred to Committee No. 4, Bill of Rights. 

Clerk Article 7, Election and Right of Suffrage. 

The President: Unless otherwise ordered, to Committee No. 
5. 

Article 8 Referred to Committee No. 8, Education and School 
Lands. 

Article 9, County and Township Organization. Referred to 
Committee No. 11, County and Township Organization. 

Article 10, Municipal Corporations. Referred to No. 9, Mu- 
nicipal Corporations. 

Article 11, Revenue and Finance. Referred to No. 13, Revenue 
and Finance. 



70 SOUTH DAKOTA DEBATES 1889 

Article 12, Public Accounts and Expenditures. Referred to 
Committee No. 14. 

Article 1*3, Public Indebtedness. Referred to Committee No. 
12. 

Article 14, State Institutions. Referred to Committee No. 15. 

Article 15, Militia. Referred to Committee No. 22. 

Article 16, Impeachment and Removal from Office. 

Mr. Caldwell: I suggest the Judiciary Committee. 

Mr. Zitka: I think the Legislative Committee is the proper 
Committee. The Legislature is the body that tries impeachments. 

Mr. Price: I move that it be referred to the Legislative 
Committee. 

Which motion was duly seconded. 

Mr. Caldwell: Impeachment is certainly a judicial proceeding, 
and not legislative; it seems to me the original suggestion ought 
to prevail, that it be referred to the Judiciary Committee, not the 
Legislative; I offer as an amendment, that it be referred to the 
Judiciary Committee. 

Which motion received a second. 

Mr. Spooner called to the chair, and President Edgerton took 
the floor. 

Gentlemen of the Convention: I do not concede for a moment 
that under the provisions of the Omnibus Bill, this Convention has 
any authority to adopt the course we are now pursuing. The 
interests at stake are far too momentous to make any mistake in 
this matter. It is for that reason that I present these views. I 
may not represent a majority of this Convention. It is my opinion 
that we cannot change a branch of this Constitution; we have these 
questions that have been ratified by the people and there is no 
power in this Convention to alter, or change or add to this article 
on impeachment. That is the question you are now referring. 
Taking from the Constitution and referring it ito a committee they 
must act upon it ; that is annuling the Constitution. 

Mr. Caldwell: While I agree perfectly with the gentleman 
from Davison, that it is beyond the province of this Convention 
to order anything not contemplated by the Omnibus Bill, it is 
nevertheless a fact that this Convention will very much expedite 
its business if it shall refer these various subjects to proper com- 
mittees and' allow them to inform the Convention bv their examin- 



EDGERTON OPPOSES REVISION 71 

ation as to whether or not there be anything contained within any 
particular Article that may or may not come within the scope of 
the Enabling Act. The Enabling Act, in addition to providing 
certain specific changes, such as those referring to the name of the 
state, and such as referring to the boundary of the state, and such 
as referring to apportionments, also requires that there shall be 
such other changes as shall be necessary to make this Constitution 
comply with the requirements of the Enabling Act. Now whether 
or not there be anything in the particular Article, needing change, 
this Convention cannot at this time determine, and it could scarcely 
determine otherwise than by having it read ; a much better way, and 
the way which was contemplated by the gentleman who offered 
the motion which prevailed here, was that these various portions 
of the Constitution should be referred to these several committees, 
not that changes which are necessary be reported by such com- 
mittees but that such committee should determine whether or not 
there is anything in the respective provision that does need chang- 
ing. This is a matter which it seems to me is freely within the 
scope of the powers of this Convention and of its Committees. 
Take for instance the Preamble; now there is nothing in the En- 
abling act which refers to any change in the Preamble ; nevertheless 
a change in the Preamble is necessary, because it reads, "We the 
people of Dakota". There is to be a change in the name of this 
commonwealth, and that name must be stated, at least suggested 
or best brought before this Convention for action, by having it 
come in the way of a report from a committee. As I say with 
regard to this particular Article 16, whether or not there be any- 
thing in that that necessitates a change in order that it shall comply 
with the provisions of the Enabling Act, how is the Convention to 
know ; each member may know by reading whether or not that be 
the case, but this Convention as a body cannot know it until it be 
communicated to it and that particular part be before it ; it there- 
fore seems to me to be perfectly practical, and absolutely necessary 
that every article, that every part and parcel of this Constitution 
and the Schedule and Ordinance, should be referred in order that 
the action or .non-action may come before this Convention regu- 
larly and properly. 

Mr. Jolley: I do not see for the life of me, why there is to 
be any value attached to this document, the Constitution of the 



72 SOUTH DAKOTA DEBATES 1889 

Convention of 1885, outside of the fact that they did their work and 
signed it. The people last May said they would support by a large 
majority th Sioux Falls Constitution and that a constitutional 
convention should meet here to make such changes as should be 
made under .the Enabling Act. That constitution so passed by a 
constitutional convention in 1885 was an instrument signed by 
men composing that Constitutional Convention, who then sub- 
mitted it to the people; that instrument, as an instrument, has 
nothing at all to do with this Convention ; we do not know what it 
is; it can't come before us, it is something that has to be referred 
to our Committees here in order to know what it is. How can it 
more properly be done, than in this manner? For instance the 
question, Impeachment and Removal from Office, is submitted to 
a committee; there possibly may not be any changes in it; there 
certainly is not that I have seen from reading it through since this 
discussion began. But, Sir, when that committee comes in, and 
says that that is the Article that we report as your committee on 
Impeachment and Removal from Office, and it is adopted and 
ratified by this Convention, then it is the act of this Convention. 
There is no other way that we can tell whether changes can be 
made; and there is no member on the floor of this Convention that 
will watch any closer not to violate the provisions of the Omnibus 
Bill, than I will. I have lived too long in this country as a territory 
to risk again, the chance of voting. I will go as far as the gentleman 
from Davison; as far as he can possibly do to avoid overstepping 
our powers under the Omnibus Bill, but I cannot possible see how 
this Convention can take action without these propositions are 
referred to committees, and they may make their report to this 
body for their final action. That constitution that was passed 
in 1885, is in the hands of the President of this Convention to remain 
there until he places it in the hands of the Secretary of the State of 
South Dakota. He is the custodian of it now It is not before 
this Convention in any way ; but it can be brought before these 
committees and they can by comparison decide whether it is the 
same constitution adopted at that time, and then report to this 
Convention, and this Convention then votes on those articles. We 
cannot adopt a Constitution not in the hands of this Convention; 
we cannot say what it is ; we cannot sign an article if it remains in 
our President's hands ; it cannot be enrolled in his hands. It cannot 



JOLLEY' VIEWS ON REVISION 73 

be brought before this body in any other way than by reference ; 
it cannot be considered by committee without reference. 

Mr. Edgerton from Davison: I may have been in fault; I 
stated my opinion fairly upon this floor as a lawyer ; I have no doubt 
upon the proposition; not the least in the world, but if it will sat- 
isfy the gentleman, I will withdraw all opposition; but for myself 
I do not think Col. Jolley and myself will differ upon that, that 
it is impossible for this Convention to alter a single phrase of that 
Constitution except upon the grounds made in the Omnibus Bill ; 
it cannot be done ; but if it will satisfy these two gentlemen that 
they vote upon it again, I am satisfied. I thought the reference 
might possibly imply the right to change, so I interposed this ob- 
jection, but if it will satisfy anyone that it shall be re r erred, I have 
no objection. This may be said in its favor; I didn't know yester- 
day, when I made the long list of committees, that many of them 
would not have much to do, and if this will exalt the character of 
these committees that I appointed yesterday and give them more 
prominence before this Convention, and in the State, I would be 
the last one to throw a straw in their way. I do not know how 
many of my friends are upon these committees, but in order that 
those committees may be exalted, I withdraw all objection and let 
all these articles go before these committees as if they had never 
been ratified by a former convention, elected by the people of 1885, 
as if it never had been ratified by Congress, and yet not ratified by 
the people on the 4th of May last ; I withdraw all objection and let 
it come before the committees. 

Mr. Jolley: So far as I am concerned myself; I hope I am not 
so foolhardy as to set myself up upon so bold a proposition as stated 
by the gentleman from Davison, if he supposes that is my position. 
I supposed, Sir, that the gentleman from Davison, and myself were 
both delegates in this Convention, each entitled to an opinion, and 
if we differ, we can differ as gentlemen, and that is the way we do ; 
I state it is, as far as I am concerned. I will state again to the 
gentleman from Davison, that I will go as far as he will not to 
change any article in the Constitution that the Omnibus Bill does 
not allow us to change; I will oppose dotting an "i" or crossing 
a "t" that the Omnibus Bill does not unqualifiedly allow; yet I do 
contend that the only way we can get at it is by referring it to 
committees and have the committees report. 



74 SOUTH DAKOTA DEBATES 1889 

Mr. Hole: I have no special objection that this go to the 
committees; that may be the best way to facilitate the work of 
this Convention, but I think it should be distinctly and unquali- 
fiedly understood that that part of this constitution that has been 
ratified by the people, and wherein we have no manner of right 
to charge that that stands as the people have adopted it ;^we do not 
need to adopt that over again. 

Mr. Cal dwell: In my judgement it makes no particu'ar 
difference that the people of this commonwealth have adopted this 
Constitution, except that we have it here now; the fact that it is 
the Constitution of 1885, would make no particular difference; it 
would be as incumbent upon this body to take up every line of it, 
and re-adopt it now, as it was for it to have been adopted first, be- 
cause, when this document, the Constitution of 1889, shall go out 
from this body, not only must go out that part which may be ra- 
tified by this body, but there must go with it and with the seal of 
this Convention upon it, also, that part which may have been 
brought over from the Constitution of 1885, which was re-adopted 
on the 14th of last May ; and those who maintain' here the idea of the 
reference to committees, do not have any idea whatever of changing 
a single jot or title of that which ought not to be changed. But 
it is claimed by them, that in order that this body may have the 
action of the Convention of 1885 properly before it, that the Con- 
stitution of 1885, should be taken and allotted to these respective 
committees that have been appointed that they make the ex- 
amination. It would be perfectly proper if this Convention should 
see fit, to go to work and examine it itself; it is necessary, however, 
that this Convention shall examine and shall know officially what 
was the action of the 1885 Convention; what is the document that 
Congress has said shall be preserved here ; it is necessary that this 
Convention shall do it ; it is necessary that this Convention shall 
do it as a body, determine what there is in the action of the 
Constitutional Convention of 1885, that shall remain, and the 
very much easier and better way, is to allot the various portions 
of this document to the committees which have been appointed 
and allow them to report and thus bring' the matter before this 
body; and if any other idea than this should prevail, what would 
be the result? There would have to be submitted to the people 
next October, two documents, at least two parts of documents; 



CALDWELL'S IDEAS 75 



there would have to be submitted to the people next October for 
their re-adoption such parts of this Constitution of 1885 as were 
not changed, and there would have to go also such parts of this 
Constitution as were necessarily qualified by this Convention; 
the result would be that there would be twins presented to the 
people of this commonwealth for their adoption. It seems to me 
no such thing as that was contemplated by Congress; the object 
was that this Convention should frame a document out of what 
had already been ratified by the people with such limitations as 
were prescribed by this Enabling Act. 

Mr. Edgerton, of Davison: I ask the indulgence of this Con- 
vention. The gentleman says, that unless all of these articles are 
re-adopted by this Constitutional Convention they have no place 
in the fundamental law of the State; that is not my understanding. 
I ask him this ; suppose the majority of this Convention do not 
agree upon this article now under consideration, Impeachment 
and Removal from office, can this Convention blot it out after the 
people have ratified it twice, and after the Congress of the United 
States have sent it here under the existing circumstances? I deny 
that this Convention has got the power to blot out that article on 
impeachment. I had supposed that all objections were withdrawn ; 
I withdrew all that I had ; I want it referred to the separate com- 
mittees so that every committee may have something to do ; I an- 
nounced to the Convention fairly that I withdrew all objection; 
it was only in answer to that one proposition that I asked the in- 
dulgence of the Convention. 

Mr. Lee: I ask the Convention if Congress has not made a 
will, complete, signed, sealed and delix-ered? The Honorable Judge 
at my left, is right ; we have no occasion or right to prate about the 
will ; I do not believe we have any business to take up this matter 
and refer it to committees at all; it is already fixed; we cannot 
change it ; we can take the whole business and look it over and 
come back and make a half a dozen changes that must be made, 
here in white and black. What is the use of spending our time for 
nothing? 

Mr. Davies: I think this discussion will settle this point as 
to future points; it is not wasted time; it is something that is liable 
to come up at any time until the question is settled. I see no way 
out of this without reconsidering our work of yesterday. With 



76 SOUTH DAKOTA DEBATES 1889 ' 

reference to the gentleman from Davison, and the other gentleman 
whose countenance I do not remember at once, I do not think there 
is that conflict which it might appear. It is true that we have 
light from both these sources; the Omnibus Bill is our authority; 
the moment we get out of that we find rough sailing. The Omnibus 
Bill contemplates that this Convention take every line and adopt 
it as it is when not necessary to modify it according to the directions 
of the Omnibus Bill, to modify it when and where we are told to 
do so by that bill. In my opinion every line of this Constitution 
must have the stamp of this Convention upon it before we can pre- 
sent it to the people for their vote next October; that it is now 
understood that every article as presented to the committees, 
that these committees understand that they are not to change only 
as the Omnibus Bill directly tells them so. This work will be 
simplified, and we can hasten on with it. The question, it seems 
to me, is one of reference to the committees. I shall favor reference 
to the Legislative Committee, if that is the motion before the 
House. 

Chairman: Is the Convention ready for the question? 

Mr. Zitka: The motion was, that Article 16 be referred to the 
Legislative Committee: "The House of Representatives shall 
have the sole power of impeachment. The concurrance of a majority 
of all members elected shall be necessary to an impeachment". 
What would be more proper than the Legislative Committee for 
this reference? Impeachments are tried by the Legislature, and 
every member of the Legislature is judge. Therefore, I insist as 
far as my vote is concerned, that it be referred to the Legislative 
Committee. 

Mr. Caldwell: I ask that the gentleman will look at Section 
3; while of course Section 1 refers to Legislative Impeachment, 
there is a good deal more under the order of impeachment than 
impeachment of the members of the Legislature; Section 3 reads: 

(Here. insert Section 3, Article 16.) 

Certainly that is judicial matter. 

Mr. Wescott: I move an amendment to the amendment 
before the House 

The Chairman: The previous question is called for; I think 
the time for an amendment is passed ; are you ready gentleman for 
the question? 



FURTHER REFERENCES TO COMMITTEES 77 

Mr. Davies: Please state the question. 

Mr. Wescott: Amendments are always in order. My amend- 
ment is that this question be referred to the Committee on Bill 
of Rights The impeachment is the right of the general public; 
but at the same time there are rights on both sides. I move the 
question be referred to the Committee on Bill of Rights. 

Mr. Jolley: What is the condition of the motion; how many 
amendments are there, please? 

The Chairman: I believe there are two; there is no second 
to the last motion. 

Mr. Jolley: I move an amendment to the amendment, that 
this bill be referred to the Committee on Military Affairs ; my reason, 
Sir; for moving this Committee is, that the Chairman of that Com- 
mittee is a man who during one day of the week preaches the Gospel, 
and he does all he can to preach religion in its purity ; the other six 
days he is stirring up war and destruction and everything that's 
bad ; the Chairman of the Committee that I ask that this be referred 
to is the fighting parson from Codington County. (Laughter.) 

Mr. Atkinson: I second the amendment to refer it to the 
Committee on Bill of Rights. 

Which proposition to so refer was, upon coming to a vote, lost. 

The Chairman: The question recurs upon the amendment 
to refer it to the Judiciary. 

Mr. Dickinson: I rise to the point of order ; if the main amend- 
ment or the original motion is now before us; the gentleman from 
Minnehaha County moved an amendment which was lost and the 
motion now refers to the original question. 

- The Clerk: Our record shows Mr. Price moved Article 16 be 
referred to the Legislative Committee and Mr. Caldwell moved to 
refer it to the Judiciary, which we are acting upon now. 

A division of the House being called for the amendment was 
lost by rising vote. 

The question recurring upon the original motion, the motion 
prevailed and Article 16 was referred to the Legislative Committee. 

The Clerk: Article 17, Corporations. 

The Chairman: Will the President assume his seat; I do not 
wish to refer these myself. 

The President of the Convention again occupied the chair. 



78 . SOUTH DAKOTA DEBATES 1889 

The President: What committee, Mr. Zitka, do you wish 
this referred to? 

Mr. Zitka: Number ten, Corporations Other Than Banking 
and Municipal. 

The President: It is so referred. 

Article 18, Banking and Currency, was referred to Committee 
No. 21, Banking and Currency. 

Article 19, Congressional and Legislative Apportionment was 
referred to Committee No. 16, Congressional and Legislative Ap- 
portionment. 

Article 20, Seat of Government, was referred to Committee 
No. 6, Name, Boundaries and Seat of Government. 

Article 21, Miscellaneous, was referred to No. 27, Miscellaneous 
Subjects. 

Mr. Willis: I object. This Committee will have to be oc- 
cupied with Section 5. I foresaw the trouble a moment ago that 
we would get in a squall like this ; some women are not married 

The President: Does the gentleman ask this reference to 
any special committee or do you ask that a portion of it be referred 
to one Committee and a portion to another. 

Mr. Willis: All I ask for is, that the Committee on Rights of 
Married Women have their portion of this Article, and :f it is 
necessary, ask that it be substituted. 

The President: If I understand the gentleman it is this, 
that Section 5, of Article 21, be referred to Committee No. 20 on 
Rights of Married Women. 

Mr. Willis: Perhaps this motion should cover the whole 
ground that the different sections of this Article be referred to the 
Committees that are named. 

Which motion prevailed. 

The President: , Section 1, of Article 21, is referred to Com- 
mittee No. 25, Seal of State, Coat of Arms, and Design of Same. 

Section No. 2 is referred to Committee No. 28, Compensation 
of Public Officers and Members. 

Section No. 3, to what committee will you have that referred? 

Mr. Caldwell: I would suggest No. 27. 

The President: It will be so referred. 



JUDGE CARSON ON REVISION 79 

Section 4, of Article 21, is referred to Committee No. 19, Ex- 
emptions and Personal. 

Section 5 is referred to Committee No. 20. 

The Clerk: Article 22. 

The President: It is referred to Committee No. 7, Federal 
Relations. 

Articles 23, Amendments and Revision of the Constitution, is 
referred to Committee No. 23, Amendments and Revision of the 
Constitution. 

Article 24, Prohibition. 

Judge Corson: I move that further consideration of this 
matter be postponed until two o'clock tomorrow ; I propose to move 
a reconsideration of this matter in order to have this question dis- 
cussed this afternoon and re-discussed tomorrow. I think we ought 
to have a full understanding of this matter before proceeding any 
further. 

Mr. Hole: I second the motion of the gentleman from Law- 
rence. 

Mr. Atkinson : I move we make this the special order tomorrow 
at ten o'clock and that when we do adjourn it be until ten o'clock. 

Mr. Davies: There are committees to meet tomorrow and 
it will be impossible to do committee work and be here at the same 
time. 

Mr. Dickinson: It seems to me that after the discussion of 
this subject that we have had now that we should go into a committee 
of the whole and discuss the proposition. 

Mr. Corson: I object to that motion because this motion 
to postpone until two o'clock tomorrow is made for the express 
purpose that the members may look into this matter carefully I 
desire to look into it myself a little more; I desire to examine it; 
it may be a very important question; I see by the Omnibus Bill 
that the Constitution adopted is to be re-submitted. Not the Con- 
stitution that we may make here, but the Constitution framed in 
the Convention of 1885, and adopted, it is to be re-submitted; not 
some other Constitution, not something that we may make here ; 
not such amendments as we may desire to make. In order that 
we can proceed intelligently we had better take one day to consider 
this matter. That we get into no false position in regard to this 
subject ; hence I desire time to examine it ; I think every mem- 



80 SOUTH DAKOTA DEBATES 1889 

ber here desires to examine it carefully and proceed with care in 
this matter because it is a matter of too much importance to pro- 
ceed hastily ; hence I hope the gentleman will not press the motion 
to take it up now because the motion is made to postpone it until 
tomorrow that every gentleman in this Convention may himsqlf 
examine it, and among ourselves compare notes and get at the true 
methods on which we are to proceed. I therefore suggest again 
that it is an extremely important matter how this Constitution 
is to be handled in this Convention. To know what to do with the 
Constitution adopted in 1885 to be re-submitted in October. If 
we are ready to make a new one that is not the Constitution of 
1885, it is another and different constitution, and there is doubt if 
we have any authority or power to make it. I merely throw out 
the suggestion for the purpose of showing the importance of the 
question before the Convention. 

Mr. Lee: I think after we have all slept one more night we 
shall be satisfied to go by the Omnibus Bill, without any further 
debate. 

The President: The gentleman from Lawrence moves the 
further consideration of this reference be postponed until tomorrow 
at two o'clock and made a special order for that hour. An amend- 
ment is proposed, that it be made a special order for tomorrow at 
ten o'clock, and when this Convention adjourn, it adjourn to 
meet at that hour. I would suggest Rule Thirty-four, unless it 
is changed makes the hour of meeting at two o'clock tomorrow; 
unless it is changed and the rule modified. If the Chair is right 
the amendment is not in order. 

Mr. Atkinson: I withdraw the amendment. 

The President: The motion before the Convention is, shall 
the further consideration of this order of business be postponed 
until tomorrow at two o'clock and made a special order for that 
time. 

Which said motion prevailed. 

Mr. Corson: I now move that the vote by which we adopted 
the resolution to read the Constitution and refer the different sub- 
jects to the proper committee be re-considered, and that motion 
be made the special order for tomorrow. 

Motion duly seconded. 

Mr. Dickinson: I believe in a full discussion of any matter 



REVISION or CONSTITUTION OF 1885 81 

upon which we differ; it seems to me that there is no difference of 
opinion; I hear no suggestion from any of the speakers that they 
contend for an amendment of the Constitution. We only differ 
as to the methods of proceedure in doing our work. I am for one 
very anxious that we get our work done and delay no longer than 
necessary ; I wish we might accomplish more each day , in session and 
get through quicker; for that reason, I am opposed to this motion. 
My own understanding is that we have simply to deal with two 
documents, that we have no power of amendment at all; that we 
have our requirements in the Omnibus Bill to carry out, and this 
is a reference to the different committees only in order that if there 
is any change in accordance to the requirements of the Omnibus 
Bill, they can so report it. It seems to me a delay until tomorrow 
is an unnecessary delay ; we might just as well settle that here as 
tomorrow. 

Mr. Hole: As I understand the question, there is a radical 
difference; the one side assumes the necessity of re-adopting the 
Constitution; of going through and referring it to committees and 
having the report of the committees which pre-supposesthe adoption 
of it. While upon the other hand the few that I have talked with 
is of the opinion that the reference is simply for the purpose of 
comparison ; that we cannot adopt it ; we have no such right as 
that ; our only right is to reveiw it and compare and see if it compares 
with the other, and is the Constitution of 1885 which has been 
voted upon by the people. All we have to do, and all we can do 
under the Omnibus Bill is merely to compare that and then make 
the necessary additions and carry out the intention of the Omnibus 
Bill. There is a direct confliction in this House and that question 
should be settled. I think if we have time to consider it I am 
satisfied we will settle it right ; I do not want to see it settled this 
afternoon; I want to give it some study, for it may be very impor- 
tant. 

Mr. Zitka: There was no intention on my part when I made 
this motion to revise the Constitution, nor do anything of the kind; 
simply to comply with the Omnibus Bill ; to refer the Constitution 
to the different committees so that they may see what changes 
should be made according to the Omnibus Bill. That there are 
no portions of the Constitution which had no provision in the 



82 SOUTH DAKOTA DEBATES, 1889. 

Omnibus Bill; and if there is any parts of the Constitution which 
has no provision in the Omnibus Bill, to leave it alone without 
touching it ; without doing anything with it ; and what parts there 
are that require any changes to make them. That was the only 
object. The only way to get at this was to refer the Constitution 
to the different committees ; because if we took time in Committee 
of the Whole, or in Convention, it would take from one day to an- 
other and I think we would not get through this summer. As far 
as my experience goes, that is the only proper way to do it, and 
that we are far from unanimous upon that point and that this 
motion should prevail. 

Mr. Caldwell: I would simply call attention to the Enabling 
Act, in Section Four: "Whereupon the said Convention" (referring 
to the four states proposed) "shall be, and are hereby authorized 
to form constitutions and state governments for said proposed 
states respectively." And then with regard to South Dakota 
particularly: "It shall be the duty of the Convention which may 
assemble at Sioux Falls, as herein provided, to re-submit to the 
people of South Dakota for ratification or rejection at the election 
hereinafter provided for in this act, the Constitution framed at 
Sioux Falls and adopted November 3, 1885, and also the articles 
and propositions separately submitted at that election, including 
the question of locating of the temporary seat of government, 
with such changes only as relate to the name and boundary of the 
proposed state, to the reapportionment of the judicial and legis- 
lative districts, and such amendments as may be necessary in 
order to comply with the provisions of this Act." 

There is to be a constitution formed ; the powers of this body 
include that ; and it is to be re-submitted ; so that such submission 
as has been had heretofore, cuts no figure whatever. As I said 
previously, this Constitution of 1885, or one like it, might have been 
submitted annually for a thousand years and it would not have 
made any difference; would not have given it a single particle of 
validity, now or hereafter. The Congress of the United States has 
required this Convention, that it shall go to work and frame a Con- 
stitution; that it shall re-submit such parts of this Constitution 
of 1885 as may be brought over, or re-adopted by this Convention. 
Of course if this Convention, in its foolhardiness should see fit to 
run counter to the requirements of the Enabling Act, or the people 



DISCUSSION OF REVISION CONTINUED 83 

would, and to suppose that it is the purpose of any committee of 
this body or of this body itself to jeopardize statehood and all 
blessings which we have hoped from it, by attempting to enact 
here for submission to the people, something which is outside the 
province of this body as fixed by the Congress of the United States, 
is to suppose a foolhardiness, which I do not believe the history of 
this body will prove to have been just. The reference to a com- 
mittee is certainly neither by implication nor by necessity nor upon 
any other consideration, any attempt whatever, or can be construed 
into an attempt to change anything; but as I said before it is neces- 
sary for this body to have regularly before it, what are the pro- 
visions of this Constitution of 1885, and the only way to do that 
is to take what purports to be the Constitution of 1885 and to 
submit or refer to these various committees these things which 
purport to be the provisions of the Constitution of 1885, and when 
these respective committees examine and compare them they will 
be able to notify and inform this Convention as to whether or not 
these "various parts are contained within the document and by no 
other way can this information be secured unless this body itself 
shall go to work and make the comparison. 

Mr. Davies: The two motions which have passed this Con- 
vention answer the purpose for which it was passed; to give us 
further time until tomorrow to consider all this, and it is well; 
but why now go to work and undo all we have done; why undo it 
until we do know, for we have until tomorrow to consider this very 
matter; if we find our work today is not right it will not then be 
too late to change and ask for a reconsideration of this whole matter. 
We as a convention are to re-consider and examine this Consti- 
tution with a view to meet the requirements of the Enabling Act ; 
how? We have appointed the committees, and given this com- 
mittee a certain portion, and that a certain portion to look over 
and report, and then we have the Convention as a Commi; 
the whole, if you please, who can consider every line that comes 
from every committee. The mere fact that a committee makes a 
report does not make the Constitution does not take from this 
Convention one iota of power or authority. I see no reason there- 
fore, why we should not sustain this second motion, and undo all 
we have done. Let us go on with whatever business is before us, 



84 SOUTH DAKOTA DEBATES 1889 

and if necessary tomorrow if this is to be the understanding, then 
re-consideration will be in time. 

Mr. Corson: My motion was simply a motion to reconsider 
and postpone that until tomorrow, so that if we find we are pro- 
ceeding regularly, it can be withdrawn and voted down; it delays 
nothing; there is no reason why the motion to reconsider should 
not stand until tomorrow ; I think we had better make it today and 
let them go over together. 

Mr. Willis: Give us time to consider whether or not we want 
this motion to reconsider, before us or not ; let it remain as it is. 

The President: The motion to reconsider the resolution by 
which the Constitution was ordered to be read section by section 
and referred to proper committees, that the consideration of that 
motion to reconsider may be postponed until tomorrow at two 
o'clock, until the time of the special order, if there is no objection 
that will be the order of the Convention; the Chair hears no objec- 
tion; it is postponed until tomorrow at two o'clock. 

Mr. Humphrey: I have a resolution I wish to offer, and a 
motion. I move that a committee of three be appointed to care- 
fully proof read and compare the copy of the Constitution as found 
in Long's Legislative Hand Book, with the original copy now in 
the hands of the President of this Convention and report any and 
all errors or discrepancies existing between them. 

Which motion was duly seconded. 

Mr. Humphrey: My object in moving this covers a portion 
of the ground, which as I understood it, lead to the adoption of 
the motion yesterday, that we should read to this Convention the 
original copy of the Constitution; I had understood it was the pur- 
pose of some to have a proof read copy furnished every member 
of this Convention, of the Constitution a corrected copy, so that 
whether it was referred by sections, or whether it was not referred, 
whenever a committee reported every member of this Convention 
would have in his possession a verified copy of the original docu- 
ment with which he could compare every report and every alter- 
ation proposed, and settle in his own mind and judgment whether 
it comes within the provisions of the Omnibus Bill. That we have 
no right to make any alterations whatever except as required by 
that bill, I believe is the judgment of every member of this Conven- 
tion. It is for the purpose of placing in the hands of every member 



TECHNICAL ERRORS CORRECTED 85 

of this Convention, the errata showing any changes or alterations 
that may exist ; then if they are few they can be made with the pen, 
but if many, it mav be proper for the Convention to provide a 
re-print of the Constitution proof read and verified, and place in the 
hands of the Convention. 

The motion as made by the gentleman from Faulk prevailed. 

The President: The committee provided for in the last mo- 
tion will consist of Humphrey of Faulk, Mr. Dickinson and Mr. 
Zitka, 

Mr. Caldwell: In order at least to have the matter suggested 
to the members of this Convention, I would make this inquiry, 
whether or not in this proof reading, suppose that a manifest 
error should be observed in the official engrossed copy, we will 
say an error in grammar, an error in punctuation, or an error in 
orthography, and say further that the aforesaid errors should have 
been corrected in this Long's Legislative Hand Book, is this Com- 
mittee understood to be required to report that the correction be 
changed back to the error in the enrolled copy ? And in that con- 
nection, while I am not speaking to any motion, I would at the 
same time, like to call the attention of the Convention to some 
matters pertinent to the suggestion which I have made ; it is that 
unless this engrossed copy be a much better document clerically 
than documents of such character usually are, it is unavoidable 
that there shall have been many errors crept into it. There is 
one section, in which the change of a single letter in a single. word 
did in my judgment precipitate a greater amount of argument with 
regard to the provisions of this Constitution during the campaign 
of last May than was precipitated by any other consideration ; that 
is with regard to bribery, and its punishment. There is the word 
in the printed form in almost all the copies of the Constitution, 
"for" should have been "of" ; the language is as I recall it, "The of- 
fense for bribery or corruption", whether or not the error exists 
in the official copy I do not know, but it would seem to me and I 
would state it as my private judgment that it is within the purview 
of this Convention to make all such changes as that, which may 
be discovered in that enrolled copy, and I would therefore move 
that this Committee just appointed, shall be requested to report 
to this Convention precisely what discrepancy there may be between 
the copy of the Constitution as contained in Long's Legislative 



86 SOUTH DAKOTA DEBATES 1889 

Hand Book and the copy which is to be regarded as the official 
enrolled copy, in order that when the action of this Convention 
shall have been enrolled and engrossed, that no error which may 
have existed in the original enrolled copy may find its way into our 
work. It seems to me that changes of that character, while this 
Convention is not permitted to make amendments of a general 
character, 'still it seems to me that it is within the powers of this 
Convention to change those manifest errors which may exist in 
the enrolled copy, even in those articles which cannot be amended 
by this body . I believe that to be the case for the reason, that this 
Convention is required to prepare a constitution and is authorized 
to make such changes therein as are necessary in order that the 
result of this work shall comply with the requirements of the En- 
abling Act. The requirements of the Enabling Act most certainly 
are, that there shall be formed a document as free from these 
clerical errors as possible. Of course all the legal evidence there 
is of the Constitution of 1885, is the engrossed copy, and all this 
Committee are requested to do is to notify this body of the dis- 
crepancy between the enrolled copy and this copy here, and the 
matter will be brought officially to the attention of this body , and 
I will move that the Committee be requested to report every dis- 
crepancy of any sort, even in the matter of orthography, even in 
the spelling of names of counties to be reported to this Convention. 

Mr. Humphrey: I will request the gentleman to read the 
motion I made; it covers that ground. 

Mr. Willis: I suggest that the gentleman from Minnehaha 
get credit for his speech all the same. 

On motion of Mr. Fellows, the Convention stood adjourned 
until tomorrow, July 11, 1889, at two o'clock, P. M. 



Two o'clock, P. M. 



EIGHTH DAY. 

Sioux Falls, Dakota, July 11, 1889. 



The Chaplain: Our Father who art in Heaven, Hallowed be 
Thy name; wilt Thou help us as we come before Thee, the Creator 
and Preserver of us all, and ask that Thou wilt be with us this day; 
that we may be wise and discreet and that every act of ours may 
advance those things that may be best for our interests and for 
the interests of those that have sent us here. May we at last 
receive from Thee, that welcome, "Well done thou good and 
faithful servants, enter thou into the joy of thy Lord." In Je- 
sus' name we ask it. 

AMEN. 

The President : There were two special orders made y esterday , 
but unless otherwise directed by the Convention, I will complete 
the regular calls before announcing the special order. 

Mr. Jolley : We do not seem to have any copies of the Journal 
of yesterday on our desks. 

Mr. Price: I move the reading of the Journal be dispensed 
with. 

Which motion prevailed. 

Communications and presentations of petitions. 

Unfinished business of -the previous day. 

Reports from Standing Committees. 

Consideration of reports from Standing Committees. 

Mr. Humphrey: Your Committee on Education and School 
Lands beg leave to submit a partial report; in explanation of it 
I would say that it is in the nature of a memorial to the President of 
the United States with relation to the preservation of the school 
lands; especially those that were particularly brought to our at- 
tention by the resolution introduced by Mr. McGillicuddy ; it is 
as follows: 



88 SOUTH DAKOTA DEBATES 1889 

To THE PRESIDENT OF THE UNITED STATES: 

Your memorialists, the members of the Constitutional Con- 
vention, for the State of South Dakota, now in convention as- 
sembled at Sioux Falls, in said state respectfully represented: 

That several of the most valuable sections of lands reserved 
for the use of the State for school purposes, which lie in agricultural 
districts, and some of which are contiguous to considerable towns 
and cities are sought to be improperly appropriated under pretense 
or claim that they are mineral or coal lands, and therefore subject 
to appropriation and entry under the mineral and coal land laws 
of the United States. Successful efforts in this behalf will cause 
great loss to the school fund of the State. 

Proceedings by the claimants to such lands are necessarily 
EX PARTE, and at present no authority exists in the State, or any 
of its agents to oppose these claims. 

Your memorialists are advised that applications for patents 
have been, or are about being made to the land department of the 
United States for such lands based upon their alleged mineral 
character. We know of no proceeding by any authorized agent 
of the people of South Dakota by which the applications for pat- 
ent can be as yet successfully resisted. 

The people have no standing in the Department for such 
purpose. As soon as the State shall be admitted and its agents 
qualified, South Dakota will be in condition to resist their claims 
successfully, or to protect the rights of the state whatever they 
may be relating thereto. 

Therefore, your memorialists respectfully but earnestly pray 
the President of the United States to direct that all proceedings 
relating to the entry of or issuance of patent to alleged mineral or 
coal lands situated within the agricultural districts of South Dakota 
be postponed and stayed until the State is by proclamation of the 
President a^elared admitted into the Union of States and until 
the Legislature of said State shall have the opportunity to appoint 
the requisite agents therefor and provide by law for contesting 
the right to make such entries and obtain from the government 
patents to such lands. H. A. HUMPHREY, 

Acting Chairman of Committee on School Lands. 

Mr. Humphrey: I would like to call the attention of the Con- 
vention to the partial report made by the Committee on School 
Lands; I am under the impression that it may be a matter that we 
desire to hear read. 

Clerk: Reads Memorial to the President of the United States 
as offered by Committee on School Lands. 



PROTECTION OF SCHOOL LANDS 89 

Mr. Price: It seems to me proper that before this Convention 
takes action upon so important a matter, that it ought to be dis- 
cussed, and we ought to thoroughly understand it. The object 
of that resolution is as I understand it, to protect sections of land 
for school purposes which are being taken under the mineral and 
other laws. It is suggested to my mind, Mr. President, that it 
would place this Convention in a very ridiculous position before 
the government of the United States, if that resolution was allowed 
to go to its President ; why ? Simply because there are established 
laws relating to public lands, and they stand upon the statute 
books of the country, and the President of the United States, nor 
no other power, in my judgment, Sir, has a right to abrogate those 
laws. William Andrew Jackson Sparks, if you please, a distinguished 
friend of Dakota's interests (?) tried that once, and it was held by 
the courts and everything else, that he had no right to suspend 
the laws of this country. I am constrained to repeat that it would 
place us in a very ridiculous position before our government. 

Mr. Humphrey: It was my purpose to make an explanation 
concerning this matter; it is this; there is no purpose as indicated 
in the memorial that we propose either to petition for, or urge the 
setting aside of the Land Laws of the United States. It is a matter of 
common knowledge, and especially so throughout Dakota that there 
is no system of laws within the United States, laws that have been 
in the books for years and yet in the application of which we are 
so much at sea as we are with regard to the land laws ; the whole 
system of rulings and decisions is a matter of such complexity that 
it is impossible to determine anything definite about them. The 
facts of the case are, pertaining to this, that it is understood that 
there are parties endeavoring to secure patents of these lands and 
are doing it without sufficiently establishing their just title and 
right to the same ; the object of this resolution is to stop the issuing 
of patents prior to the parties having fully established their rights 
and at the same time aid in the protection of our school lands and 
preserve them from being frittered away and being fraudulently 
deprived of them. It is without the intention of setting aside, or 
urging the President to set aside any law. It is understood that 
parties who are anxious to accomplish the patents to these lands 
are pressing the matter, and are personally pressing it at Washing- 
ton; I have no idea that they will hurry the officers there any, but 



90 SOUTH DAKOTA DEBATES 1889 

still, it is not impossible; and such things have been done. To 
prevent the possibility of their hastening action by providing that 
they be taken out of their order and acted upon before they all 
can be heard from, that is the purpose and object of the memor- 
ial, and that is all. 

Mr. Wood: There are some things in that Memorial, which 
I think it would be beyond question, going too far, for us to adopt. 
In the first place, the President has not really anything to do with 
the matter. These laws are for him to execute. It would be like 
a criminal judge suspending sentence after a verdict of guilty had 
been returned. There is a provision in the Federal Statutes for 
the protection of all parties in interest in this matter; the County 
Superintendents, if my recollection serves me right, are obligated 
by their official duties to see that no undue advantage is taken or 
any trespass committed upon the school lands, that is, lands that 
will be school lands, if we ever become a state. The laws are in 
force as the gentleman from Hyde has stated ; under these laws the 
parties are undoubtedly proceeding, and we are asking the President 
of the United States to suspend such action as is being taken at 
present looking towards securing patent of this land. I think that 
that would be working very great hardship to those who are labor- 
ing in good faith to get title to coal lands and mineral lands. I do 
not believe you should memorialize the President to do anything 
of this character. If there are known cases in which frauds are 
being perpetrated, let these committees name those cases, name 
those individuals who are liable to make an attempt to defraud 
the government, but do not strike at everybody; because one man 
is endeavoring to pick up a quarter section of land as coal land^it 
is no reason for our memorializing the President to suspend patents 
and thus work great damage to our fellow citizens who are not 
endeavoring to defraud the government. I have a desire to pro- 
tect the school lands, but we might make a greater mistake than 
Brother Sparks made in his day. It was acts of this character 
that worked all the hardship that was wrought upon the people of 
this State ; the attempt to protect some counties against threatened 
fraud and bringing everybody else within the operation of the rule. 
This memorial covers too much; I hope the Convention will not 
pass it. As I said before, there must be in the mind of some mem- 
ber or members of this Convention specific cases. Now, if there 



PROTECTING SCHOOL LANDS 91 

are such, name those cases ; if I had any such cases in mind, I would 
name them; if I had any evidence of the fact that an attempt was 
about to be made to fraudulently obtain any of the school lands in 
South Dakota I would describe the land if I knew the numbers, 
and if I did not, I would endeavor to ascertain the numbers, and 
would name the parties or corporations that were endeavoring to 
defraud the government ; then I do not strike at the guilty and 
innocent alike; then I do not impede progress which we should 
not in any manner attempt to impede. Where is the case that 
suggested the inserting of this memorial, let that case be named; 
let the parties in connection with it be named; it might strike at 
some of the delegates for all I know ; I am sure however, not among 
the Democrats of the Convention. (Laughter.) 

Mr. Sherwood: It seems to me that this resolution is a proper 
one ; the matter of the school lands is of too much importance at 
this time to be trifled with; it is I think, a question of as great im- 
portance as will come before this Convention. It seems to me the 
gentlemen upon the other side have misapprehended the idea of 
the resolution. I do not think this is a matter of overriding the 
laws ; I think it is a matter of overloading the courts ; that parties 
interested in this action upon the one side may have a chance to 
be heard. Today we have no reputation at all anywhere ; we stand 
in the position of law, of being represented by nobody; we cannot 
appear in these courts and plead for these school sections which 
are our heritage. This is a matter between the United States and 
individuals; the individuals take the property and appropriate it 
to their own use; nobody appears on the part of the United States; 
whereas, when we become a state, this land will vest in the State, 
and the State will then have the right to appear before the court 
and protect its interests. Today it has no title to this land at all ; 
it cannot appear in the courts or proceedings against the United 
States, or against a party ; therefore, I say in order to give both 
sides a chance to be heard, and give the State, or the people of 
the State, who are interested in these lands, and whose heritage 
these lands shall be, a right to be heard, this memorial should be 
forwarded to the President. It will work no great hardship to 
now suspend all proceedings of this character until the people of 
the State of South Dakota shall be represented in their capacity 



92 SOUTH DAKOTA DEBATES 1889 

as a state, I think that is fair, just and legal. I support the prop- 
osition. 

Mr. Dickinson: I raise the question of order as whether 
memorializing the President or officers of the government as School 
Lands, or Artesian Basin Survey, or anything of that sort is within 
the scope of the work of this Constitutional Convention? It seems 
to me we are here to modify a constitution as per the Omnibus Bill 
and not for these questions or resolutions. 

The President : I apprehend a memorial sent in in the nature 
of a petition, may with perfect propriety be sent to the President 
of the United States or any other department of government, 
whether it be the act of a town meeting, or body of clergymen, or 
anybody else. 

Mr. Huntley: It is true that certain sections of our school 
lands are being sought out by parties, with a view of securing a 
portion of them, under the mineral laws, whether there is any legal 
ground or not ; they are seeking to divert them from their proper 
channel. We will say this section here, that Sioux Falls 
would be near, another at Huron, and some others are mentioned 
that there are now parties at work endeavoring to secure portions 
of these sections as mineral lands because of their great value. This 
is a matter that concerns this Convention and the rest of the State; 
that if such attempts are in progress that we ought to bring about 
such delay as will give the State an opportunity for defense. That 
is about what this Memorial can do ; I hope it will pass and pass 
unanimously. 

M r. Davies: If there is a serious grievance it ought to be met, 
but if we do it, let us do it properly ; if we are not sure the President 
of the United States is the proper person to memorialize, let us seek 
the Department of the Interior ; even the Department of Agriculture 
would be nearer than the President. We might send to any depart- 
ment, and in due course of time it would get to the right place al- 
though not properly directed. But, Sir, if it takes its usual course, 
we will be dead long before it ever reaches its destination. It will 
reach the President who will refer it to the Committee, who will 
pigeon-hole it ; or send it on its rounds through the departments. 

Again, it is too general; it is the same objection that we have 
to the general orders that they are something either good, bad or 
indifferent. There are doubtless men, today that have developed 



PROTECTING SCHOOL LANDS 93 

mineral claims, and are today engaged in doing so, and those who 
are, in good faith, ought not to be hindered in order to find out 
who are not acting in good faith. I presume this affects the section 
of the Black Hills more than any other; I would be pleased to know 
something in reference to the amount of this grievance. In this 
section of the Territory I do not apprehend it is very serious. When 
we become a state, although we have our representatives in Wash- 
ington, we cannot go there and in two minutes turn everything 
upside down, and get things just as we would like them; those who 
have been states long before we ever became a Territory have griev- 
ances today that existed years and years. I dare say, if we were 
to start today and land in Washington tomorrow morning and find 
Congress in session that then we could not have our grievances 
settled by next October, when we hope to be a state. Let us con- 
sider whether it is practical ; let us consider whether it is feasible ; 
let us consider whether it is possible before we go to the President 
with such a memorial. 

Mr. Wood: The Rapid City settlement was in advance of 
the public surveys, and one. section was entered under what was 
known as the Townsite Law, they filed upon onehalf of section thirty- 
six, Township two, north of Range seven, east of the Black Hills 
Meridian; this is now within the corporate limits of Rapid City. 
Last year, or a year ago, coal was discovered in that vicinity, and 
filings were made by two individuals on this land; two quarter 
sections. There has been expended cash, at a cost of about six 
thousand dollars as I understand it, arranging their diamond drill 
and running the same for the purpose of going down to discover 
coal. When I came away, they had reached a depth of something 
over six hundred feet and no coal had been discovered; it was re- 
ported that they had as yet discovered nothing. Whether this 
is an attempt at defrauding the State out of its right 'and title to 
this land is more than I can tell. Sure it is the efforts put forward 
by these parties were fair, and didn't disclose to my mind any fraud 
or idea, or intention to take any undue advantage nor to procure 
title to property that they would not be entitled to receive under 
the law. If there is any facts connected with the entries that will 
suggest to anyone that they are to get the title unfairly, it has yet 
to come to my knowledge. 

I have heard of another case, I thinkj in^Turner County ; it 



94 SOUTH DAKOTA DEBATES 1889 

is this side of the river; but I think no application for title has 
been made. It seems that Section 36, Township ninety-eight, Range 
fifty-one, and Section sixteen, Township ninety-eight, Range fifty, 
similar efforts are being made. I am not acquainted with the facts 
of these cases ; I have suggested all that I know concerning the 
lands. I will state the land that I have been informing the Con- 
vention concerning is now very valuable ; worth from three to 
five hundred dollars an acre. 

Mr. Huntley: I think that those gentlemen who are thus 
honestly pressing their claims for these mineral lands should not 
suffer great hardship or further delay in receiving their patents. 
I can remember that good Brother Sparks (who has been alluded 
to) thought there were so many frauds out in Dakota, issued an 
order that all patents should be delayed five years. I know that 
my patent was delayed four years ; I didn't complain about it ; may- 
be some people suffered hardship under that rule. We do not wish 
to deprive anybody of their rights; we do not propose it in this 
Memorial; simply that delay be had until the matter may be in- 
quired into. I waited four years; I. waited patiently; I got my 
patent all right. Perhaps I will say that I did think Mr. Sparks 
was a little too exacting. I trust that this Memorial, if sent, will 
not keep anyone waiting four years; I simply ask it to delay this 
matter until we become a state. And certainly that is not an un- 
just, nor is it an extraordinary request; and if there are those in 
the Black Hills who have claims they are honestly presenting, and 
who, under the laws, are entitled to patents to portions of those 
coal lands, they will get their rights in due time. I believe this 
Convention will be doing its duty by the people who sent us here, 
to do all that lies in our power to prevent any of these frauds, that 
have been attempted, or are being attempted. 

Mr. Hole: Mr. President; there are some features of this 
Memorial that certainly are correct. There are .some features that 
I want to support but I do not want to support it as submitted. 
It strikes me that if this should be submitted at all, it should be 
submitted to the head of the department to which it belongs. That 
is the only way to have any document of this kind acted upon in 
time to be of any service. Again it seems to me that this Memorial 
might be changed so that it can in no case work hardship. For 
instance the Department of the Interior is provided with attorneys 



PROTECTING SCHOOL LANDS 95 

to protect just such cases. Let the Memorial ask that the attorneys 
provided by the government protect our rights; be called upon in 
these cases. Let the cases be specified and if necessary let the 
school lands of Dakota be included so that whenever patents are 
asked for upon lands that may possibly become school lands in 
Dakota that that matter first be referred to the proper department 
to protect our interests. Then we do not stultify ourselves with the 
administration. We simply, by allowing this to go on, work justice 
to all and hardship to none and we protect the school lands at the 
same time. I think that should be the object of this Memorial. 
In view of this, and wishing to support it in the main, I would move, 
gentlemen, that this be referred back to the Committee for re-con- 
sideration and amendment so as to meet that desired end. 

Mr. Cooper: I think the Memorial is entirely unnecessary for 
this reason: I do not believe for a moment that the school lands 
can be fraudulently appropriated by any man in this Territory ; 
certain steps have got to be taken by any person or class of persons 
who desire to secure title to school lands under the mineral laws. 
That is a matter of record; it is a matter that comes before the 
public, they have to advertise during a certain time that they will 
offer proof; they have to give their testimony under oath; and if 
that land is in the vicintiy of Huron or Sioux Falls or Mitchell, I 
do not believe that the real estate men of this country are going 
to sit around and see them gobble up that land unless it is mineral 
land, and if it is any distance from these towns the prices which 
these men will have to pay for this land is far more than will be 
required to buy the land within three or four miles of the best 
cities in this State ; so I do not believe that it is necessary in the 
first place for the reason I do not believe it is possible under the 
existing order of things to secure any of this land fraudulently. 
I believe that when the first attempt of that kind was made that 
a hundred protests would be filed and then it .is the duty of the 
special agents that are sent out here, to protect the interests of 
the people and protect the interests of the government. One gentle- 
man a few moments ago said, "We will see to it that unless these 
lands are mineral lands that they shall not be appropriated"; while 
the gentleman from Turner County (Mr. Huntley) says that he 
made no complaint when he waited long weary years for his patent. 
I must congratulate him that he is the only gentleman that I have 



96 SOUTH DAKOTA DEBATES 1889 

met that did not make complaint. I see in this action a reflection 
upon the people of South Dakota ; it ought to be voted down. 

Mr. Young: As a member of the Committee on Education 
and School Lands I wish to make a word of explanation. In the 
first place there is a difference under the United States statutes 
between mineral lands and coal lands. The process for getting 
a patent to coal lands is much shorter and less tedious than getting 
a patent to mineral lands. The memorial calls attention only to 
certain valuable sections of land in the mineral districts of the Ter- 
ritory. The memorial calls attention only to certain valuable sec- 
tions of land in certain agricultural districts of the Territory, con- 
tiguous to towns and cities of considerable size. I would suggest 
that it does not refer to any proceedings or applications for patents 
on the part of miners in the Black Hills district at all. Let me say 
with regard to the address of this memorial, that it seems to me 
such a friend of Dakota as we have in the President of theU nited 
States is pre-eminently the man to whom to send a petition from 
such a body as the Constitutional Convention of South Dakota. 

Mr. Davies: I want to explain myself in my position on this 
resolution. I want to vote for it ; and the only object I had in view 
was debate, and if it was presented in proper manner to Congress 
or the proper department, I am not opposing this measure. 

Mr. Humphrey: Just one word with regard to the amend- 
ment that is moved; we have three departments; we have the 
Executive, the Judiciary and the Legislative. The President of 
the United States is at the head of that one department ; this comes 
within that department. We present to him our memorial; he 
will refer it to the proper bureau or department in his executive 
department. This is the direct way of placing it before the man 
who must act upon it. So much for its reference. Then in regard 
to one other point. I wish to state this, that there is a misap- 
prehension of the intention of the Committee that they are making 
an attack upon any location ; but it is a well known fact that there 
has ever been a disposition to take advantage and any advantage 
that they can of the school lands. The action contemplated by 
this memorial, does not hinder any man's rights under the law, 
if any man has taken any steps within the law to secure title to 
these lands this will not prevent him. This is simply a stay of 
proceedings until the rights of Dakota can be secured. 



PROTECTING SCHOOL LANDS 97 

Mr. Caldwell: As a matter of information I would like to ask 
whether or not in the event of a miner entering land which sub- 
sequently proves to be not mineral, does the mineral entry still 
hold good the claim of title? 

A Voice: No, Sir. 

Mr. Caldwell: If it be the case, if it does not, it seems to me 
that the interests of the State are not jeopardized as much as might 
first appear. Of course, if the claimants to land shall be able to 
prove by testimony, that the land actually is mineral, they are 
certainly entitled to the operation of the mineral land laws. of the 
country. And would be entitled to the possession of the land, but 
if they do not prove to be mineral lands, according to the answer 
which I have received, the title to the land reverts to the state, 
or will revert to the government and from the government to the 
State, so that it does not seem to me cause for uneasiness if efforts 
are to be attended, or if unsuccessful experiments are to be prose- 
cuted. It does not jeopardize or limit, the title of the State or 
whatever right it may have to the land. 

Mr. Humphrey: I would like to ask the question, how can 
the gentleman understand that it is the intent of this memorial to 
deprive a party of the possession of the land? It is only intended 
to limit the acquisition of the title; if he gets the patent of it after 
a while, is he greatly inconvenienced? We do not propose to de- 
prive a man of his rights to the land, simply to stay his procuring 
final title. 

Mr. Lee: I rise to ask a favor. In order that we may under- 
stand what we are doing and the character and importance of this 
resolution, I desire to hear the memorial read again. 

(Clerk reads.) 

The President: The question before the Convention is to 
re-commit this report to the Committee on School Lands. 

Mr. Wood: I call for the ayes and the nays. 

The motion was lost by a vote of 28 ayes ; nays 32. 

Mr. Humphrey: I move the previous, the adoption of the 
memorial. 

Mr. Sherwood: I ask that the roll be called on the main 
question. 

Mr. Wood: I desire to call the ayes and noes on the main 
question for the purpose of putting myself upon record as voting 



98 SOUTH DAKOTA DEBATES, 1889. 

no to a petition asking the President of the United States to do 
what he under the law has no authority to perform. 

The vote upon the previous question resulted as follows: 

AYES: Atkinson, Berdahl, Boucher, Buechler, Caldwell, Clough 
Cook, Cooper, Corson, Culver, Davies, Dickenson, Downing, Eddy, 
Edgerton of Yankton, Fellows, Gifford, Harris, Hartley, Heninger, 
Hole, Houlton, Huntley, Humphrey, Jolley, Lee, Matson, Mc- 
Cusick, McGillycuddy, Murphy, O'Brien, Peck, Ramsey, Ringsrud. 
Scollard, Sherwood, Smith, Spooner, Stoddard, Sterling, Stroupe, 
Thompson, Van Tassel, Wescott, Wheeler, Whitlock, Williams, 
Williamson, Wood of Spink, Zitka and Mr. President. (56). 

NOES: Couchman, Diefendorf, Fowles Goddard, Kellam, 
McFarland, Price and Wood of Pennington. (8). 

The vote upon the adoption of the memorial resulted as 
follows: 

AYES: Atkinson, Berdahl, Buechler, Clough, Cook, Corson, 
Culver, Davies, Dickinson, Downing, Eddy, Edgerton of Yankton, 
Gifford, Houlton, Huntley, Humphrey, Lee, Matson, McGillycuddy, 
O'Brien, Peck, Ringsrud, Sherwood, Smith, Spooner, Stoddard, 
Sterling, Stroupe, Thompson, Wescott, Wheeler, Willis, Williams, 
Williamson, Wood of Spink, and Mr. President. (36). 

NOES: Boucher, Caldwell, Cooper, Couchman, Diefendorf, 
Fellows, Fowles, Goddard, Harris, Hartley, Heninger, Hole, Jolley, 
Kellam, McCusick, McFarland, Murphy, Price Ramsey, Scollard, 
Van Tassel, Whitlock, Wood of Pennington, Zitka. (24). 

So the memorial was declared passed. 

The President: The special orders appointed by the Conven- 
tion, yesterday, will now be considered unless otherwise ordered 
by the Convention ; there are two special orders for this hour. 

Mr. Corson: With the consent of the second, I will withdraw 
my motion to reconsider. 

The President : There being no objection it will be withdrawn ; 
the Chair hears no objection, the motion is withdrawn. 

Mr. Williams: If it is now in order, I have a motion which I 
would like to present to the Convention and have it read by the 
clerk, and upon such reading I will move the adoption of the 
motion. 

Mr. Joiiey: We are under a special order of business; unless 
the Convention shall order otherwise, it cannot be heard, if that 
refers to that special order of business it may be, otherwise it can- 
not be received, except by unanimous consent. 

Mr. Williams: I withdraw it at this time. 



FURTHER RF. FKKKXCES TO COMMITTEES 99 

The President: The Clerk will read, I have forgotten what 
we reached yesterday. 

A Voice: Article 22. 

Mr. Humphrey: I would ask consent of the Convention for 
an opportunity for the introduction of a motion that will dispose 
of this matter without the re-consideration of the proposition 
yesterday ; I would like to read it and would like to ask unanimous 
consent for its introduction. 

A Voice: I object. 

The President: The Clerk will proceed. 

Article 24, Prohibition. 

The President: What committee will you have? 

Mr. Atkinson: I move that it be referred to the Committee 
on Rights of Married Women. 

The President: It will be so referred unless objection is made, 
it is so referred, 

Article 25, Minority Representation. 

The President: It will be referred unless objection is made, 
to the Committee on Amendments and Revision of the Constitution. 

Schedule and Ordinance, referred to the Committee on 
Schedule and Ordinance. 

Mr. Caldwell: I would object to this reference of the article 
on Minority Representation. 

The President: It is too late ; it is referred. 

Form of Ballot, 

The President: Mr. Zitka, what will you have that referred 
to? 

Voices: To the Committee on Election, Schedule. 

The President: It will be referred to the Committee on 
Schedule unless otherwise ordered by the Convention. 

Mr. Clough: I move you that the motion by which Article 
24 was referred to the Committee on Rights of Married Women be 
reconsidered. Would not the people of this Territory take that 
as an insult? I think that when it was so referred it was thought- 
lessly done. 

Mr. Atkinson: I disclaim any intention of making a joke of 
this matter; I was in earnest; it belongs to that Committee, who 
is more interested in these matters than married women? 



100 SOUTH DAKOTA DEBATES 1889 

Mr. Clough: I would add to my motion that it be referred 
to the Committee on Schedule. &t5K 

The President: It is moved that the reference of Article 24 
to the Committee on Rights of Married Women, be re-considered 
by the Convention and that it be referred to the Committee on 
Schedule. 

Which motion prevailed. 

Mr. Williams: I have a motion here which I would like read 
by the Clerk and then move its adoption by the Convention. 

RESOLVED: That a committee of five be appointed by the 
President of this Convention, whose duty it shall be to procure from 
the custodian, the original Sioux Falls Constitution of 1885, and 
carefully compare the same with the Omnibus Bill and report to 
this Convention the changes therein authorized by the Omnibus 
Bill together with recommendations. 

Mr. Williams: I move the adoption of that resolution. 

Mr. Caldwell: I simply desire to say that the appointment of 
such a committee, with such powers as that, would practically 
wipe out every committee that has been appointed ; it is the busi- 
ness of each standing committee to compare such parts of the Con- 
stitution as has been referred to it, and report to the Convention. 

Mr. Williams: There was quite a discussion here yesterday 
as to what was the proper method of procedure in this Convention, 
in reference to this Sioux Falls Constitution. It was contended 
by some that this Convention is authorized and that it is its duty 
to submit an entire new Constitution if I understood the remark 
of the gentleman from Minnehaha County I take it this Convention 
is not yet lawfully in possession of the document before the people 
on the I4th day of May nor that this Convention may come into pos- 
session of this document in order to ascertain any further changes 
ordered to be made by the Omnibus Bill. Now that these matters 
may be brought before the Convention, and then referred to the 
proper committee is the object of the resolution. I find on looking 
through and reading a copy of the Constitution as presented in this 
pamphlet there are more than twenty changes authorized and 
there are other questions, that there is a difference of opinion. 
That those changes may be pointed out and those doubtful changes 
may be discussed is the purpose of this Committee, not to usurp 
any power or duty of the other Committees, the purpose of this 



POWERS OF COMMITTEES 101 

Committee is only to point out and indicate the section and line 
where changes are authorized; then these sections or portions will 
be referred to the proper Committees which is already appointed 
and not take away their power. It does seem to me that there 
ought to be a committee whose duty it would be to designate in 
a brief form the changes that are authorized and the powers that 
are granted or prohibited so that the special committee to which 
this subject of the Constitution is referred, may look into that 
matter. I have asked for a committee of five that each subject 
might be thoroughly discussed and disposed of in that way. 

Mr. Price: I move that the motion be indefinitely postponed. 

The motion coming to a vote was by rising vote, of forty ayes 
to eighteen nayes declared indefinitely postponed. 

Mr. Williamson: I move that the committees to which the 
several articles and sections of this Constitution have been referred, 
report to this Convention what changes, if any, must be made in 
such articles and sections in order that the same may comply with 
the provisions of the Omnibus Bill or Enabling Act. 

Mr. Davies: I would like to ask the question for infoimation, 
is not it already supposed that each committee is already author- 
ized to report whether to make these changes or not and would 
a report be considered complete without reporting to the Committee 
on Phraseology all the changes required by the Omnibus Bill? 
That is the understanding is it not ? 

Mr. Williamson: My understanding is, that in this matter 
this Convention has no power to make any changes whatever in 
that Constitution except such as are required by the Enabling Act. 
The question came up in the discussion yesterday as to what powers 
was given to these committees by referring the several sections to 
them. Leaving the committees without any instruction upon that 
point leaves the implication upon the records of this Convention 
that these committees have power to make other changes than such 
as are contemplated in the t Enabling Act. The inference might 
be drawn that this Convention assumed the power to make any 
other changes. Of course none believe any such thing, but that 
all the changes that can be made by this Convention, are only 
such changes as are required by the Enabling Act. I cannot c6n- 
ceive what duties the several committees to which these several 
sections are referred can have, except simply to refer back to this 



102 SOUTH DAKOTA DEBATES 1889 

Convention what changes are required to be made, report what 
those changes are, how these articles must be amended to conform 
to the requirements of the Enabling Act. If they were left without 
any instruction whatever, it might lead to confusion and uncer- 
tainty. I had intended if this original motion had been re-consid- 
ered to offer this amendment to the original motion. I think now 
we have instructed the committees in this respect, that not even 
by implication do we attempt to assume any power and will amend 
no article or section except asjiirected by the Omnibus Bill. Simply 
instruct the committees about what their duties and powers are 
in that matter. 

Mr. Humphrey: I am in favor of the motion ; of the principles 
embodied in the motion, and if the motion to reconsider the refer- 
ence of the Constitution had not been withdrawn I should have 
presented a similar" motion to this Convention ; it was the motion 
that I asked the consent to present ; it embodied the same prin- 
ciples as that read to you with the exception that in its wording it 
is a little more general, and that we may choose between the two, 
I will move it as a substitute ; permit me to read it. 

Moved that the several committees provided for by the Rules 
of this Convention be directed to proceed to the discharge of their 
several duties, and report to this Convention only such changes and 
amendments to the Constitution as in their judgment are directed 
by, or are necessary in order to comply with the provisions of the 
Enabling Act, known as the Omnibus Bill, under the authority 
of which we are here convened, and by the provisions of which we 
must be guided and controlled. 

Mr. Davies: Another question, I would ask, it is my understand- 
ing that the report of these committees comes before this Conven- 
tion and that before that report is disposed of at all, there must be 
a vote of this Convention, either .for or against it? If that is the 
understanding of the Convention, quite a number of members will 
be satisfied on this point. Quite a number seem to doubt, or to be 
at sea whether these reports are final, as I understand it the Con- 
vention as a body, will act upon each report before it is authentic. 
Am I right in this? 

Mr. Williamson: I am perfectly willing to accept the substi- 
tute of the gentleman from Faulk County. 

Mr. Caldwell: I think that there is no gentleman upon the 



PmYKkS OF Co.MMITTKKS TO R K \ 'I S I : 103 

floor who will dispute the proposition that there can nothing go 
into this Constitution, as the one formed by this body, which does 
pass by a majority vote of this body, and that the action of the 
various committees are merely preliminary, the same as any other 
committee report has to be adopted before it is the action of the 
body. 

Mr. Wood: It occurs to me that this resolution is simply to 
instruct the committees how to proceed. I do not know whether 
the committees that I form a part of, understand their business or 
not, but the chances are we will come somewhere near it and the 
other committees .will perhaps understand their duties about as 
well as they will be informed by this resolution or any other of its 
kind. We ought not to pass a resolution of this character. 

The interpretation of the resolution is simply exponent of 
the law and our convictions and what we' propose to do here. 

Mr. Price: Mr. Wood (of Pennington) expresses my views 
exactly upon this question. This Convention has been duly or- 
ganized for business ; we have a distinguished gentleman to preside 
over its deliberations; we have confidence in the honesty, integrity 
and competency (if you please) of the members who constitute this 
body, and I think as the President of this Convention stated yes- 
terday he has made no mistake in the selection of his committees. 
These matters have been referred to these committees for con- 
sideration, and as has well been stated by the gentleman from 
Minnehaha County no part of this Constitution can become a part 
of the Organic law of this new State unless it is adopted by a ma- 
jority vote of this Convention, and I say, Sir, without any disrespect 
to the gentleman who has introduced this resolution that it is an 
insult to the integrity, and competency and honesty of the gentle- 
men who compose this Convention, especially the committees to 
whom it has been referred. This resolution ought not to prevail. 

Mr. Lee: I move that the resolution be laid upon the table. 

Which motion prevailed. 

Mr. Boucher: I have a resolution I wish the Clerk would read. 

Clerk reads as follows: 

That the people of the State of South Dakota hereby ordain 
and declare: 

FIRST: That pert'ei t toleration of religious sentiment shall 
be secured, and that no inhabitant of this state shall ever be mo- 



104 SOUTH DAKOTA DEBATES 1889 



lested in person or property on account of his or her mode of re- 
ligious worship. 

SECOND: That the people inhabiting this State do agree and 
declare that they forever disclaim all right and title to the un- 
appropriated public lands lying within the boundaries thereof, 
and to all lands lying within said limits owned or held by any 
Indian or Indian tribes, and that until the title thereto shall have 
been extinguished by the United States, the same shall be and re- 
main subject to the disposition of the United States, and the said 
Indian lands shall remain under the absolute jurisdiction and 
control of the Congress of the United States, that the lands belong- 
ing to citizens of the United States residing within this State shall 
never be taxed at a higher rate than the lands belonging to residents 
of this State; that no taxes shall be imposed by this State on lands 
or property therein belonging to, or which may hereafter be pur- 
chased by the United States or reserved for its use. But nothing 
herein shall preclude this State from taxing, as other 'lands are 
taxed, any lands owned or held by any Indian who has severed 
his tribal relations, and has obtained from the United States or 
from any person a title thereto by patent or other grant, save 
and except such lands_ as have been or may be granted to any 
Indian or Indians under any act of Congres? containing a pro- 
vision exempting the lands thus granted from taxation but that 
all such lands shall be exempt from taxation by this State so long 
and to such extent as such act of Congress may prescribe. 

THIRD: That provision shall be made for the establishment 
and maintenance of systems of public schools, which shall be open 
to all the children of the State and free from sectarian control. 

Mr. Corson: I move that that be referred to the Committee 
on Schedule and Ordinance. 

Mr. Sherwood: I move that it be referred to the Committee 
on Federal Relations ; I propose it as an amendment to the gen- 
tleman's motion. 

Which motion prevailed and the resolution was referred to 
the Committee of Federal Relation. By the President. 

Mr. Clough: I have a little matter in the nature of a com- 
munication or resolution from a Sioux Falls Preacher's Meeting, 
which upon being read will explain itself. 

Clerk reads: 

To THE SOUTH DAKOTA CONSTITUTIONAL CONVENTION: 
GENTLEMEN: 

This certifies that the following resolution: "Resolved that 
we call upon the Constitutional Convention to be held at Sioux 
Falls, July 4th, 1889, to be put about the election to be held in 



SUGGESTIONS FOR SCHEDULE AND ORDINANCE 105 

October, such safeguards as shall insure an honest vote and to 
prevent colonization of voters, and we also ask that the election 
of state officers be, if possible, put on a different day from the vote 
on the Capital and Constitution", was unanimously passed at the 
Sioux Falls District Meeting of the Dakota Conference, held at 
Parker, May 21st to 23rd, 1889. This District includes twenty- 
three pastoral charges in the southern part of your rising com- 
monwealth. 

L. HARTSOUGH, President. 

The President: The communication will be referred to the 
Committee on Schedule. 

Mr. Sherwood: I would like to have the original motion, as 
amended, just preceding this last communication. 

The President: The amendment made was in the nature of 
a substitution, in effect a substitution clearly, but if the gentle- 
man prefers the original motion put as amended, I will put it ; I 
considered it as a substitute, and so ordered the reference. 

Mr. Sterling^. I move we do now adjourn. 

Which motion prevailed. 



NINTH DAY. 

Sioux Falls, S. Dak., July 12, 1889. 

Two o'clock P. M . 

The Convention re-assembled pursuant to adjournment. 

President Edgerton in the Chair. 

Prayer by the Chaplain: 

We thank Thee, oh God, our Heavenly Father, in that Thou 
hast been with us and hast kept us. We ask Thee, that in this 
session Thou wilt give us Thy spirit that our acts may be pure 
and our purposes of Thine own prompting, and that the result of 
this session may be that which shall bring happiness to future 
generations and joy and glad tidings. We ask it in Jesus' name. 

AMEN. 

Reading of the Journal. 

At this point the President completed the regular call of busi- 
ness and asked -what is the further pleasure of the Convention. 

Mr. Sherwood: I do not know whether this is the proper 
place to present a motion for the re-consideration of the matter 
that transpired in yesterdays proceedings or not. A matter came 
up that, upon examination, was different from what I supposed 
it read; it was in relation to the memorial passed yesterday. I 
desire to say I am in favor of the memorial. I observe in the last 
clause thereof something I had not before seen, desire to read andthen 
if it is proper to reconsider it and offer an amendment by inserting 
three words. In the last paragraph of the memorial, beginning 
"Therefore your memorialists respectfully" in the fifth line thereof 
I desire to move the re-consideration of the memorial to insert into 
it after the word "stayed" the words "upon school sections". I 
think the momorial covers the ground those who voted for it in- 
tended it should cover, and more too, in this, that it is within the 
scope of it to suspend action, upon all lands; I think the intention 
was the suspension of action upon the issuance of patents upon 



108 SOUTH DAKOTA DEBATES 1889 

school sections. With a view of moving that amendment, I move 
you, Sir, that we re-consider the vote by which we adopted the 
memorial yesterday. 

(Motion seconded.) 

Mr. Humphrey: I would say in my judgment, that that is 
an error in the copying of the memorial in the Committee Room. 
Or else at the printing office; it is my judgment it was the intention 
of the Committee that those words be there; I understood it to 
be read that way when it was read. In reading it today upon our 
tables I find it to be the other way ; I am strongly in favor of putting 
those words in. 

Mr. Corson: It seems to me that that appears in the memorial, 
taking the first part of it; it specifically states "that several of the 
most valuable sections of lands reserved for the use of the State for 
school purposes. 

Mr. Davies: It is incumbent upon the President to order that 
change to be made as it was stated that that was the intention of 
the Committee; it appears to be a clerical error; I would judge it 
would be competent to have the minutes corrected the same in 
that respect as in other respects; it was the intention and others 
so understood it ; it was a clerical error and I judge it would be 
competent for the Chairman to order the Clerk to make that cor- 
rection without any objection. 

Mr. Hole: That was one point of our discussion yesterday, 
that is the point I made and the reason that I opposed it ; I think 
that if it is corrected that it ought to be by vote because I thought 
they did not understand it yesterday. 

Mr. Wood: I was going to offer an amendment to the motion 
that this motion be to reconsider for all purposes ; it is confined to 
one particular section; I move to amend, that if it be reconsidered 
that it be for all purposes. I think that is the rule, by the way. 

Mr. Sherwood: My object in voting in favor of .the motion 
might be not to reconsider the whole but only for this one section ; 
I do not know whether it is competent for those who voted against 
a question to vote to reconsider it entirely. 

The President: Will the gentleman from Pennington call 
my attention to the rule? I take it under our rule anyone can 
make this motion whether he voted for or against. 

Mr. Jolley: The gentleman from Pennington has forgotten 



RECONSIDERATION" OF MEMORIAL 109 

the rule; a person voting in the majority can vote to re-consider 
on that day or on the next two days; the parliirentary rule is very 
clear; in Legislative Assembly it would place it upon the third 
reading. 

The President: My own impression was, that when recon- 
sidered, it would then have been upon its final passage and subject 
to all amendments that would be proper at such a stage of pro- 
ceeding; I had understood that a different opinion prevailed. I 
wanted my attention called to the rule otherwise my opinion was 
that as soon as reconsidered it was before the Convention the same 
as it was upon its original passage. 

Mr. Humphrey: The 1 intention of the committee I believe 
to be fully manifest ; the omission would be a clerical one in the 
Committee Room. If it is not competent to have it inserted here 
without the consent of the House, believing the memorial fully 
states the ground, I move the motion to reconsider it lay upon the 
table. 

Which motion upon a division of the House was adopted by 
a vote of thirty-five ayes, to twenty-seven nayes. 

Mr. McCusick: I ask the Convention to excuse me from fur- 
ther attendance upon the Convention, owing to public duties 
which I have at home. 

The President: The gentleman from Roberts will be excused 
if the Chair hears no objection. The Chair hears none. 

Mr. Williams: asked and was granted leave of absence until 
Monday. 

Mr. Huntley: I would like to call the attention of the Con- 
vention, to the expenses of the Convention; the Committee on Ex- 
penditures asks that the members hand to some member of the 
Committee the distance travelled by them in coming to the Con- 
vention, and at as early a date as possible that the Committee may 
discharge its duties and be prepared for its final work. 

Mr. Eddy was upon his own request excused until Tuesi lax- 
morning. 

On motion of Mr. Sherwood the Convention stood adjourned 
until Saturday afternoon. July 13. 



TENTH DAY. 

Sioux Falls, Dakota, July 13th, 1889. 

Two o'clock P. M. 

Convention re-assembled pursuant to adjournment. 

Convention calle i to corder by Mr. Corson, of Lawrence. 

Clerk, upon instructions by the Chairman, read the following 
communication. ^ 

Sioux Falls, Dak., July 12th, 1889. 
JUDGE CORSON: 

I shall be absent from Saturday until Monday. Will you 
please act in the meantime as President of the Constitutional 
Convention. 

A. J. EDGERTOX. 

The Chaplain: We thank Thee, oh God, our Heavenly 
Father for all Thy manifest kindness toward us. We ask Thee 
that Thy holy spirit may this day thoroughly imbue us. Deal 
graciously with all connected with us; and those of our number 
who are absent ; bring us together with a purpose and full deter- 
mination to do just the thing for the best interest of those whom 
we represent. Do Thou guide our steps and lead us on the morrow 
that we conduct ourselves as becoming representatives; as those 
worthy to be called children of the living God. We ask it in Jesus' 
name. 

AMEN. 

The Journal of the preceding day was read and approved. 

The President pro tern proceeded with the regular call of the 
order of business, without interruption. 

Mr. Craig: I am requested to present to this Convention a 
design of the great seal of South Dakota, executed by a Chicago 
firm, and ask that it be referred to the Committee on Seal. 

The Chairman: It will be so referred. 

Mr. Young: It is quite evident that there is not a quorum 
present, we cannot transact any business; I move we adjourn. 

Which motion prevailed. 



TWELFTH DAY. 

Sioux Falls, Dakota, July 15; 1889. 

Two o'clock P. M. 

The Chaplain: Our Heavenly Father, we thank Thee for 
the privilege that we have had of resting on the Sabbath Day 
and of hearing of Thy word from which we may gain wisdom. 
Help us now to remember that the fear of the Lord is the beginning 
of wisdom and if we have the right spirit toward God and men we 
shall surely prosper and do just those things that will be accep- 
table in Thy sight and redound to our good and the glory of our 
Father who liveth forever. Hear us for Christ's sake. 
AMEN. 

Mr. Dickinson: I move that the roll be called to ascertain 
if there be a quorum present. 

Motion is seconded. 

Mr. Humphrey: I move that the motion be laid upon the 
table. 

Which motion prevailed. 

Journal of Saturday's session was read and approved. 

The order of business fo-r the day was gone through by the 
President pro tern. 

Mr. Humphrey: I offer the following resolution and move its 
adoption. 

Resolved that it is the sense of this Convention that the Stand- 
ing Committees should report with as much promptness and dis- 
patch as the proper discharge of their duties will permit. 

Which motion prevailed. 

Mr. Humphrey: The purpose of the resolution is this: The 
Engrossing and Enrolling Committee have a laborious task before 
them; several of these committees have but little duty to perform,. 
a large portion there will be no alteration or amendment and so 



REPORTS OF COMMITTEES 113 

rapidly as these committees report this Engrossing and Enrolling 
Committee can proceed with their labors and thus greatly expedite 
the labors of the Convention. 

On motion of Mr. Humphrey, the Convention was adjourned. 



THIRTEENTH DAY. 

Sioux Falls, Dakota, July 16th, 1889. 
Two o'clock P. M. 

Convention re-assembled pursuant to adjournment. 
President Edgerton in the chair. 

The Chaplain: Oh Lord, our God, we bless and adore Thy 
name this day. In our finiteness and ignorance, we turn to 
Thine infinite love and wisdom for strength and inspiration. Do 
Thou guide our deliberations this day, and may everything that 
is done redound to Thy glory, and the uplifting of mankind. This 
we ask for Jesus' sake. 

AMEN. 

The President: On last Friday Mr. McCusick asked leave 
of absence for the balance of the session; that leaves no member 
from that district on the Committee on Apportionment and unless 
there is objection by the Convention, I will appoint Mr. Wescott 
in his place from that district. The Chair hearing no objection, 
appoints Mr. Wescott to take the place of Mr. McCusick on the 
Committee on Congressional and Legislative Apportionment. 

Mr. Willis: I offer the following resolution: 

Resolved, that the Judiciary Committee be, and are, hereby 
requested to examine and report to the Convention whether or 
not in their judgment any portion of the $20,000 appropriation 
may be used to defray the expenses of the May or October elections. 

Mr. Davies: I ask that the resolution be read again. 

The resolution was adopted, 

M r. Wescott : I move you that the roll of standing committees 
be read in order that progeess may be reported. 



116 SOUTH DAKOTA DEBATES 1889 

The President: If there is no objection the clerk will read 
the list of standing committees. 
Which was done. 

The Committee on Executive and Administrative reported 
as follows: 

To THE PRESIDENT OF THE CONSTITUTIONAL CONVENTION OF 
SOUTH DAKOTA. 

We, the undersigned, the duly appointed Executive and Ad- 
ministrative Committee of this Convention, do hereby respectfully 
report that we have carefully examined Article IV of the Consti- 
tuiton of the proposed state of South Dakota, approved by the 
voters thereof, May 14th, 1889, and find that no change is neces- 
sary or proper in said Article IV, in order to comply with the pro- 
visions of the Enabling Act, passed by the Congress of the United 
States. 

C. R. WESCOTT, 
R. C. ANDERSON, 
J. DOWNING, 
W. G. DICKENSON, 
W. H. MURPHY. 
Sioux Falls, July 1889. 

Mr. Sterling: I move you that the report of the Executive 
and Administrative Committee be made the special order for to- 
morrow at the completion of the regular call of the business. 
(Seconded.) 

Said motion prevailed. 

The Committee on Amendments and Revision of the Con- 
stitution made the following report 

Sioux Falls, Dakota, July 16, 1889. 
MR. PRESIDENT: 

Your Committee on Amendments and Revision of the CoYi- 
stitution, to whom was referred Article XXIII of the Constitution, 
beg leave to report that we have examined said Article and find 
no change necessary in order to make the same conform to the 
Enabling Act, and we therefore recommend that the same be 
submitted as originally drawn. 

L. T. BOUCHER, 
J. DOWNING, 
WM. COOK, 
WM. STODDARD, 
C. J. B. HARRIS. 

Mr. Boucher: I move that the report of the Committee on 
Amendments to the Constitution be adopted. (Seconded.) 



SPECIAL ORDERS 117 



Mr. Dickinson: I offer the substitute that it be made the 
special order for tomorrow afternoon. (Seconded.) 

Mr. Sterling: I believe it would be good policy to make all 
these reports, although it will not take long to consider them, 
to make them a special order for the next day after they are read ; 
we will then have a better opportunity to weigh all the provisions 
of these various articles and it will prevent any undue haste in 
adopting the several sections. 

The substitute to the motion to adopt the report was adopted 
by vote of the Convention. 

Mr. Van Tassel: I move we do now adjourn. 

The motion prevailed and the Convention stood adjourned 
until tomorrow, July 17, 1889. 



FOURTEENTH DAY. 

Sioux Falls, Dak., July 17, 1889. 

Two o'clock P. M. 

Convention re-assembled pursuant to adjournment. 

President Edgerton in the cha:r. 

Prayer by Mr. Clough as follows: 

Almighty God, our Heavenly Father, we thank Thee for the 
privilege of greeting Thee this day. Now we ask of Thee wisdom 
and understanding, for the duties of this hour. Give us discretion 
in all our affairs. May Thy blessing attend us for Christ's sake. 

AMEN. 

Journal of the preceding day was read and no corrections 
suggested. 

The President: I have a long communication here with 
reference to the liquor question, and Prohibition ; I refer it to the 
Committee on Schedule. 

Also a ten page communication in reference to the name of 
the State; I refer it to the Committee on Name and Boundary. 

Communication from T. D. Kanouse was read to the Conven- 
tion as follows: 

Sioux Falls, S. D. July 15th, 1889. 

To THE HONORABLE PRESIDENT AND MEMBERS OF THE SOUTH DA- 
KOTA CONSTITUTIONAL CONVENTION, IN SESSION AT sioux 

FALLS: 
GENTLEMEN: 

If it would be your pleasure as a body, or as individuals, at 
any time during your sojourn in the city to visit this institution, 
you have my most cordial invitation so to do. With highest 
consideration, Very respectfully, 

THEO. D. KANOUSE, Warden. 

The President: Reports of standing committees; the Clerk 
will read the list as ordered, yesterday. 



120 SOUTH DAKOTA DEBATES 1889 

Mr. Hole: Before we commence reading this list, I would 
suggest that the Chairman of the various committees report their 
idea when their reports will come before the Convention. The 
Schedule Committee must necessarily somewhat depend upon the 
condition of the other work and would like the information. 

Mr. Jolley: Under the order of business Reports of Standing 
Committees, the Committee on Rules without making a formal 
report, have drawn up a form and suggested that each Committee 
use this form in making their report to this Convention. The 
form of the report is now in the hands of the gentleman from 
Hutchinson. It is substantially as follows: 

Sioux Falls, Dak., July , 1889. 

MR. PRESIDENT: 

Your Committee on to whom was 

referred Section , entitled , have con- 
sidered the same and have compared said section with the Sioux 
Falls Constitution and the Act of Congress known as the "Omnibus 

Bill" and have instructed me to report the following section 

of Article and that the same is in accordance with the 

Sioux Falls Constitution and the changes thereto authorized by 
the "Omnibus Bill". 

The Committee on Rules thought the reports had better be 
uniform and that the record had better be made upon the Journal 
of this Convention at what date they passed. 

Under the call of business Reports from Standing Committees, 
the following reports were made: 

The Judiciary Committee submitted the following report: 
MR. PRESIDENT: 

Your Committee on Judiciary, to whom was referred the 
resolution requesting said Committee to examine and report to 
the Convention whether or not, in their judgment, any portion 
of the $20,000 appropriation may be used to defray the expense 
of the May or October elections, beg leave to report: That it is 
the judgment of this Committee that no part of the said appropria- 
tion can be used for the purpose of defraying the expenses of such 
elections. 

THOMAS STERLING, 
H. A. HUMPHREYS, 
CHAUNCEY L. WOOD, 
W. T. WILLIAMS, 
C. G. SHERWOOD, 
S. G. RAMSEY, 
C. J. B. HARRIS, 



RIGHTS OF MARRIED WOMEN 121 

GEO. C. COOPER, 
H. F. FELLOWS, 
H. W. EDDY, 
S. B. VAN BUSKIRK. 
of the Judiciary Committee. 

The Committee on Rights of Married Women submitted their 
report as follows: 
MR. President: 

Your Committee on Rights of Married Women, to whom was 
referred Section (5) of Article (21) twenty-one, entitled, "Rights 
of Married Women", have considered the same and have compared 
said section with the Sioux Falls Constitution and the act of Con- 
gress known as the "Omnibus Bill", and have instructed me to 
report the following as Section Five (5) of Article (21) Twenty-one 
of the Constitution, and that the same is in accordance with the 
Sioux Falls Constitution and the changes thereto authorized by 
the Omnibus Bill. 

Rights of Married Women. 

SECTION 5. The real and personal property of any woman 
in this State, acquired before marriage, and all property to which 
she may after marriage become in any manner rightfully entitled 
shall be her separate property, and shall not be liable for the debts 
of her husband. 

L. V. WILLIS, 

Chmn. of Com. 
S. A. WHEELER, 

T. F. DlEFEXDORF, 

T. W. THOMPSON, 
J. G. DAVIES, 
DAVID HALL. 

Mr. Spooner: I move that the report of the Committee on 
the Rights of Married Women be adopted. (Motion seconded.) 

Mr. Sherwood: I move as an amendment that the report 
be made a special order for tomorrow. 

Which motion prevailed. 

Under the order of business, Presentation of Resolutions and 
the Propositions Relating to the Constitution: 

Mr. Sherwood: I have a resolution here I would like to offer. 
Which was read by the Clerk as follows: 

WHEREAS: It appears that several members of the Consti- 
tutional Convention, which convened in the city of Sioux Falls 
on the 8th day of September, A. D. 1885, did not, through error 
or accident, sign the Constitution adopted on November 3rd, 1885 
and, 

WHEREAS: Some of the said members of said 'Convention 



122 SOUTH DAKOTA DEBATES, 1889. 

who have been heretofore prevented from signing said Constitution, 
are now desirious of signing the same. 

RESOLVED: That the President of this Convention be au- 
thorized to permit any duly and elected and qualified member of 
said Constitutional Convention of 1885, who has not heretofore 
signed said Constitution to attach his signature to the same. 

The President: Do you ask its reference to the Judiciary 
Committee ? 

Mr. Sherwood: Yes, Sir. 

The President: It is so referred. 

The President: The hour has arrived for the special order; 
the consideration of the two reports. 

Mr. Sherwood of Clark, called to the chair. 

Mr. Dickinson: I move that the report of the Committee on 
Executive and Administrative and the Committee on Amendments 
and Revision of the Constitution, and made a special order yester- 
day, be re-committed to the respective Committees in order that 
they may be made to conform to the uniform form that is recom- 
mended by the Committee on Rules. 

The Chairman: Do I understand that refers to all the business 
made the special order for today. 

Mr. Dickenson: Yes, Sir; those two reports. 

Said motion prevailed. 

- Mr. Sterling I move you that the Committee now arise 
and report the action of the Committee. 

The Chairman: Do I understand we are now in Committee 
of the Whole? 

Mr. Sterling: If I am mistaken I withdraw the motion. 

Mr. Lee: I do not so understand it, that we were in Com- 
mittee of the Whole. 

Mr. Young: If it is in order I would introduce the following 
resolution: 

WHEREAS: The Fiftieth Congress, by the Enabling Act for 
South Dakota, North Dakota, Montana and Washington, make 
several new grants of lands, moneys and buildings to South Dakota, 
upon its admission into the Union, to be used exclusively for 
specific purposes ; and 

WHEREAS: It is a mooted question with some members of 
the Convention as to whether it is obligatory on this Convention 
and fitting for it to acknowledge and accept said grants by a reso- 
lution of the Convention. Therefore, be it 



ACCEPTANCE OF LAND GRANTS 123 

RESOLVED: That the Committee on Judiciary be requested 
to report on the necessity of such a resolution. 

Mr. Jolley: I rise to the point of order, over the gentleman 
from Lake ; we are in Committee of the Whole. 

Mr. Wood: We are not in Committee of the Whole. 

Mr. Jolley: Did the Chairman rule that? I subside. (Laugh- 
ter.) 

The resolution as presented by the gentleman from Lake, 
was adopted. 

The Chairman: It is referred to the Committee on Judiciary. 

Mr. Sterling: I move we adjourn. (Motion duly seconded.) 

Mr. Spooner: I rise to the point of order. Are we considered 
as in Committee of the Whole? (Laughter.) 

The Chairman: The Chair will state that perhaps he had 
better be advised in regard to this matter. & 

Mr. Spooner: There is a difference of opinion among the 
members. 

The Chairman: I understood that no special motion to go 
into Committee of the Whole was made ; that is what I passed upon ; 
that no special motion was made to go into Committee of the 
Whole. 

Mr. Spooner: Does the Chair pass upon the question whether 
we are in Committee of the Whole or not? 

The Chairman: I think we are. 

Mr. Spooner: I move that the Committee rise. 

Mr. Edgerton, of Davison: There may be some misappre- 
hension; I understand that there were special orders to be con- 
sidered in the Convention today ; the time had arrived for those 
special orders, and we commence the consideration of the special 
orders. I called the gentleman from Clark to the Chair as presiding 
Officer of the Constitutional Convention. 

The Chairman: The motion to adjourn is before the Convention 

Which motion prevailed, and the Convention was declared 
adjourned. 



FIFTEENTH DAY. 

Sioux Falls, Dakota, July 18th, 1889. 

Two o'clock P. M. 

Pursuant to adjournment, the Convention was called to order 
by the President. 

Prayer was offered by Mr. Huntley as follows: 

O Lord God, our Heavenly Father, we thank Thee for the 
privilege of once more taking up our duties for this day, We 
beseech of theethat Thou wilt guide and direct us in all that we 
undertake and that our labors this day may be pleasing in Thy 
sight and that we may do faithfully the duties Thou hast committed 
to us. Guide us by Thy spirit, bless us with Thy favor and when 
we have done, receive us back to Thyself to enjoy Thine everlasting 
favor. These blessings we ask for Christ's sake. 

AMEN. 

The minutes of the preceding day were read and approved. 

At this point the call of the standing committees was proceeded 
with. 

Mr. Humphrey: I did not hear the call of the Committee 
on Education and School Lands. Their reports' are completed ; 
they will be read tomorrow. 

Under the Order of Business, reports of Standing Committees, 
the following reports were submitted. 

Sioux Falls, South Dakota, July 18th, 1889. 
MR. PRESIDENT: 

Your Committee on Compensation of Public Officers to whom 
was referred Section 2, of Article XXI, have considered the same 
and have compared said Section 2 of Article X*XI, with the Sioux 
Falls Constitution and the Act of Congress, known as the "Omnibus 
Bill", and have instructed me to report the following as Section 
2, of Article XXI of the Constitution, and that the same is in ac- 
cordance with the Sioux Falls Constitution and the changes author- 
ized by the Omnibus Bill. 

SECTION 2. COMPENSATION OF PUBLIC OFFICERS. The Gov- 



126 SOUTH DAKOTA DEBATES 1889 

ernor shall receive an annual salary of two thousand five hundred 
dollars; the Judges of the Supreme Court shall each receive an 
annual salary of two thousand five hundred dollars; the Judges 
of the Circuit Court shall each receive an annual salary of two 
thousand dollars; provided that the Legislature may, after the 
year one thousand eight hundred and ninety, increase the annual 
salary of the Governor and each of the Judges of the Supreme 
Court to three thousand dollars, and the annual salary of each of 
the Circuit Judges to two thousand five hundred dollars. 

The Secretary of State, State Treasurer, and State Auditor, 
shall each receive an annual salary of one thousand eight hundred 
dollars; the Commissioner of School and Public Lands shall each 
receive an annual salary of one thousand eight hundred dollars; 
the Superintendent of Public Instruction shall receive an annual 
salary of one thousand eight hundred dollars ; the Attorney General 
shall receive an annual salary of one thousand dollars; the com- 
pensation of Lieutenant Governor shall be double the compensa- 
tion of a State Senator. 

They shall receive no fees or perquisites whatever for the per- 
formance of any duties connected with their offices. It shall not 
be competent for the Legislature to increase the salaries of the 
officers named in this article, except as herein provided. 
Respectfully submitted, 

H. M. WILLIAMSON*. 

Chairman 
I. R. SPOONER, 
J. A. FOWLES, 
CHAUNCEY L. WOOD. 

Sioux Falls, South Dakota, July 18, 1889. 
MR. PRESIDENT: 

Your Committee on Public Accounts and Expenditures, to 
whom was referred Article XII, entitled, "Public Accounts and 
Expenditures," have considered the same and have compared said 
Article XII with the Sioux Falls Constitution and the Act of Congress 
known as the "Omnibus Bill", and have instructed me to report 
the following as Article XII of the Constitution and that the same 
is in accordance with the Sioux Falls Constitution and the changes 
thereto authorized by the Omnibus Bill. 
ARTICLE XII. 

PUBLIC ACCOUNTS AND EXPENDITURES. 

SECTION 1. No money shall be paid out of the Treasury 
except upon appropriation by law and on warrant drawn by the 
proper officer. 

SEC. 2. The general appropriation bill shall embrace nothing 
but appropriations for ordinary expenses of the executive, legis- 
lative and judicial departments of the State, the current expenses 
of state institutions, interest on public debt, and for common schools 



PUBLIC ACCOUHTS AND EXPENDITURES 127 

All other appropriations shall be made by separate bills, each em- 
bracing but one object, and shall require a two-thirds vote of all 
members of each branch of the Legislature. 

SEC. 3. The Legislature shall never grant any extra com- 
pensation to any public officer, employe, agent or contractor after 
the services shall have been rendered or the contract entered into, 
nor authorize the payment of any claims or part thereof 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; nor shall the compensation of any 
public officer be increased or diminished during his term of office; 
provided, however, that the Legislature may make appropriations 
for expenditures incurred in suppressing insurrections or repelling 
invasions. 

SEC. 4. An itemized statement of all receipts and expen- 
ditures of the public moneys shall be published annually in such 
manner as the Legislature shall provide, and such statement shall 
be submitted to the Legislature at the beginning of each regular 
session by the Governor with his message. 

A. 0. RINGSRUD, 
J. V. WILLIS, 
M. R. HENINGER, 
J. G. DAVIES, 
H. M. WILLIAMSON 
JOHN SCOLLARD, 
W. T. WIDLIAMS. 
Sioux Falls, Dak., July, 1889. 
MR. PRESIDENT: 

Your Committee on Amendments and Revisions of the Con- 
stitution, to whom was referred Article 23, entitled, "Amendments 
and revisions of the Constitution," have considered the same and 
have compared said article with the Sioux Falls Constitution and 
the act of Congress known as the "Omnibus Bill", and have in- 
structed me to report the following as Article XXIII of the Con- 
stitution, and that the same is in accordance with the Sioux Falls 
Constitution and the changes thereto authorized bv the Omnibus 
Bill". 

ARTICLE XXIII. 

AMENDMENTS AND REVISIONS OF THE CONSTITUTION. 

SECTION 1. Any amendment or amendments to this Con- 
stitution may be proposed in either house of the Legislature and 
if t lie same shall be agreed toby a majorityof the members elected 
to each of the two houses, such proposed amendment or amend- 
ments shall he entered in their Journals, with the yeas and nays 
taken thereon, and it shall be t he duty of the Legislature to submit 
such proposed amendment or amendments to the vote of the 
people at the next general election. And if the people shall up- 



128 SOUTH DAKOTA DEBATES 1889 



prove and ratify such amendment or amendments by a majority 
of the electors voting thereon, such amendment or amendments 
shall become a part of this Constitution, provided, that the amend- 
ment or amendments so proposed shall be published for a period 
of twelve weeks previous to the date of said election, in such a 
manner as the Legislature may provide; and provided further, 
that if more than one amendment be submitted they shall be sub- 
mitted in such a manner that the people may vote for or against 
such amendments separately. 

SEC. 2. Whenever two-thirds of the members elected to each 
branch of the Legislature shall think it necessary to call a con- 
vention to revise this Constitution they shall recommend to the 
electors to vote, at the next election for members of the Legislature, 
for or against a Convention ; and if a majority of all the electors 
voting at said election shall have voted for a Convention, the 
Legislature shall, at their next session, provide by law for calling 
the same. The Convention shall consist of as many members as 
the House of Representatives and shall be chosen in the same 
manner, and shall meet within three months after their election 
for the purpose aforesaid. 

Sioux Falls, South Dakota, July 18, 1889. 
MR. PRESIDENT: - 

Your Committee on Corporations Other Than Banking or 
Municipal", to whom was referred Article XVII, entitled "Cor- 
porations", have considered the same and have compared said 
Article with the Sioux Falls Constitution and the Act of Congress 
known as the "Omnibus Bill" and have instructed me to report 
the following as Article XVII of the Constitution and that the 
same is in accordance with the Sioux Falls Constitution and the 
changes therein authorized by the Omnibus Bill. 
ARTICLE XVII. 

CORPORATIONS. 

SECTION 1. No corporation shall be created or have its charter 
extended, changed or amended by special laws except those for 
charitable, educational, penal or reformatory purposes, which are 
to be and remain under the patronage and control of the State; 
but the Legislature shall provide by general laws for the organiza- 
tion of all corporations hereafter created. 

SEC. 2. All existing charters, or grants of special or exclusive 
privileges, under which a bona fide organization shall not have 
taken place and business been commenced in good faith at the 
time this Constitution takes effect, shall thereafter have no validity. 

SEC. 3. The Legislature shall not remit the forfeiture of the 
charter of any corporation now existing nor alter or amend the same 
nor passany other general or special law for the benefit of such cor- 
poration, except upon the condition that such corporation shall 



CORPORATIONS 129 



thereafter hold its charter subject to the provisions of this Consti- 
tution. 

SEC. 4. The exercise of the right of eminent domain shall 
never be abridged or so construed as to prevent the Legislature 
from taking the property or franchises of incorporated companies 
and subjecting them to public use, the same as the property of 
individuals and the exercise of the police power of the State shall 
never be abridged or so construed as to permit corporations to 
conduct their business in such a manner as to infringe the equal 
rights of individuals or the general well being of the State. 

SEC. 5. In all elections for directors or managers of a cor- 
poration, each member or shareholder may cast the whole number 
of his votes for one candidate, or distribute them upon two or more 
candidates as he may prefer. 

SEC. 6. No foreign corporation shall do any business in this 
State without having one or more known places of business and an 
authorized agent or agents in the same upon whom process may 
be served. 

SEC. 7. No corporation shall engage in any business other 
than that expressly authorized in its charter, nor shall it take or 
hold any real estate except such as may be necessary and proper 
for its legitimate business. 

SEC. 8. No corporation shall issue stocks or bonds except 
for money, labor done, or money or property actually received; 
and all fictitious increase of stock or indebtedness shall be void. 
The stock and indebtedness of corporations shall not be increased 
except in pursuance of general law nor without the consent of the 
persons holding the larger amount in value of the stock first ob- 
tained, at a meeting to be held after sixty days notice given in 
pursuance of law. 

SEC. 9. The Legislature shall have the power to alter, revise 
or annul any charter of any corporation now existing and revoc- 
able at the taking effect of this Constitution, or any that may be 
created, whenever in their opinion it may be injurious to the cities 
of this State; in such a manner, however, that no injustice shall 
be done to the incorporators. No law hereafter enacted shall 
create, renew or extend the charter of more than one corporation. 

SEC. 10. No law shall be passed by the Legislature granting; 

the right to construct and operate a street railroad within any eit v. 

town or incorporated village without requiring the consent of the 

local authorities having the control of the street or highway pro- 

to be occupied by such street railroad. 

SEC. 11. Any association or corporation organi/ed for tho 
purpose or any individual, shall have the right to construct and 
maintain lines of telegraph in this State, and to connect the same 
with other lines; and the Legislature shall, by general law of 
uniform operation provide reasonable regulations to <^iv<.- full e fleet 



130 SOUTH DAKOTA DEBATES, 1889. 

to this Section. No telegraph company shall consolidate with, or 
hold a controlling interest in the stocks or bonds of any other 
telegraph company owning a competing line, or acquire by pur- 
chase or otherwise, any other competing line of telegraph. 

SEC. 12. Every railroad corporation organized or doing 
business in this State under the laws or authority thereof shall 
have and maintain a public office or place in this State for the 
transaction of its business, where transfers of its 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 amount owned 
by them respectively ; the amount of stock paid in ; and by whom ; 
the transfer of said stock; the amount of its assets and liabilities, 
and the names and places of residence of its officers. The direc- 
tors of every railroad corporation shall annually make a report, 
under oath, to the auditor of public accounts, or some officer or 
officers to be designated by law, of all their acts and doings, which 
report shall include such matters relating to railroads as may be 
prescribed by law, and the Legislature shall pass laws enforcing by 
suitable penalites the provisions of this section. 

SEC. 13. The rolling stock and all other movable property 
belonging to any railroad company or corporation in this State 
shall be considered personal property, and shall be liable to execu- 
tion and sale in the same manner as the personal property of in- 
dividuals, and the Legislature shall pass no laws exempting such 
property from execution and sale. 

SEC. 14. No railroad corporation shall consolidate its stock, 
property or franchise, with any other railroad corporation owning 
a parallel or competing line; and in no case shall any consolidation 
take place except upon public notice, given at least sixty days to 
all stockholders, in such manner as may be providid by law. Any 
attempt to evade the provisions of this section, by any railroad 
corporation, by lease or otherwise, shall work a forfeiture of its 
charter. 

SEC. IS'. Railways heretofore constructed, or that may here- 
after be constructed, in this State, are hereby declared public 
highways, and all railroad and transportation companies are 
declared to be common carriers and subject to legislative control ; 
and the Legislature shall have power to enact laws regulating and 
controlling the rates of charges for the transportation of passengers 
and freight as such common carriers from one point to another in 
this State. 

SEC. 16. Any association or corporation organized for the 
purpose shall have the right to construct and operate a railroad 
between any points within this State, and to connect at the State 
line with railroads of other states. Every railroad company shall 
have the right with its road to intersect, connect or cross any other 



BILL OF RIGHTS 131 



railroad, and shall receive and transport each other's passengers, 
tonnage and cars* loaded or empty, without delay or discrimination. 

SEC. 17. The Legislature shall pass laws to correct abuses 
and prevent discrimination and extortion in the rates of freight 
and passenger tariffs on the different railroads in this State, and 
enforce such laws by adequate penalties, to the extent, if neces- 
sary for that purpose, of forfeiture of their property and franchises. 

SEC. 18. Municipal and other corporations and individuals 
invested with the privilege of taking private property for public 
use shall make just compensation for property taken, injured or 
destroyed by the construction or enlargement of their works, 
highways or improvements, which compensation shall be paid or 
secured before such taking, injury or destruction. The Legisla- 
ture is hereby prohibited from depriving any person of an appeal 
from any preliminary assessment of damages against any such 
corporation or individuals, made by viewers or otherwise; and the 
amount of such damages in all cases of appeal shall on the demand 
of either party, be determined by a jury, as in other civil cases. 

SEC. 19. The term corporations, as used in this article, 
shall be construed to include all joint stock companies or associa- 
tions having any of the powers or privileges of corporations not 
possessed by individuals or partnerships. 

Sioux Falls, Dakota, July 17, 1889. 
MR. PRESIDENT: 

Your Committee on Bill of Rights, to whom was referred 
Article VI, entitled "Bill of Rights" have considered the same and 
have compared said Article VI with the Sioux Falls Constitution 
and the Act of Congress known as the "Omnibus Bill", and have in- 
structed me to report the following as Article VI of the Constitution 
and the changes thereto authorized by the Omnibus Bill, to-wit: 
In Section Twenty-six where the words "State of Dakota" appear 
it shall be altered so as to read "State of South Dakota." 

COMMITTEE ON BILL OF RIGHTS. 

J. R. SPOONER, 

-Chairman. 
ARTICLE VI. 

BILL OF RIGHTS. 

SECTION 1. All men are born equally free and independent, 
and have certain inherent rights, among which are those of en- 
joying and defending life and liberty, of acquiring and protecting 
property and the pursuit of happiness. To secure these rights 
governments are instituted among men, deriving their just powers 
from the consent of the governed. 

SEC. 2. No person shall be deprived of life, liberty or property 
without due process of law. 

SEC. 3. The right to worship God according to the dictates 
of conscience shall never be infringed. No person shall be denied 



132 SOUTH DAKOTA DEBATES 1889 



any civil or political right, privilege or capacity on account of his 
religious opinions; but the liberty of conscience hereby secured 
shall not be so construed as to excuse licentiousness, the invasion 
of the rights of others, or justify practices inconsistent with the 
peace or safety of the State. No person shall be compelled to at- 
tend or support any ministry or place of worship against his con- 
sent, nor shall any preference be given by law to any religious 
establishment or mode of worship. No money or property of the 
State shall be given or appropriated for the benefit of any sectarian 
or religious society or institution. 

SEC. 4. The right of petition, and of the people peaceably 
to assemble to consult for the common good and make known 
their opinions, shall never be abridged. 

SEC. 5. Every person may freely speak, write and publish 
on all subjects, being responsible for the abuse of that right. In 
all trials for libel, both civil or criminal, the truth, when published, 
with good motives or justifiable ends, shall be a sufficient defense. 
The jury shall have the right to determine the fact and the law 
under the direction of the court. 

SEC. 6. The right of trial by jury shall remain inviolate, and 
shall extend to all cases at law without regard to the amount in 
controversy, but the Legislature may provide for a jury of less 
than twelve in any court not a court of record, and for the decision 
of civil cases by three-fourths of the jury in any court. 

SEC. 7. In all criminal prosecutions the accused shall have 
the right to defend in person and by counsel ; to demand the nature 
and cause of the accusation against him; to have a copy thereof; 
to meet the witnesses against him face to face ; to have compulsory 
process served for obtaining witnesses in his behalf, and to a speedy 
public trial by an impartial jury of the county or district in which 
the offense is alleged to have been committed. 

SEC. 8. All persons shall be bailable by sufficient sureties, 
except for capital offenses when proof is evident or presumption 
great. The privilege of the writ of habeas corpus shall not be 
suspended, unless in case of rebellion or invasion, the public safety 
may require it. 

SEC. 9. No person shall be compelled in any criminal case 
to give evidence against himself or to be twice put in jeopardy for 
the same offense. 

SEC. 10. No person shall be held for a criminal' offense unless 
on the presentment or indictment of a grand jury, or information 
of a public prosecutor, except in cases of impeachment, in cases 
cognizable by county courts, by justices of the peace, and in cases 
arising in the army or navy, or in the militia when in actual service 
in time of war or public danger; provided, that the grand jury may 
be modified or abolished by law. 

SEC. 11. The right of the people to be secure in their persons, 



BILL OF RIGHTS 133 



houses, papers and effects, against unreasonable searches and 
seizures shall not be violated, and no warrant shall. issue but upon 
probable cause supported by affidavit, particularly describing the 
place to be searched and the person or thing to be seized. 

SEC. 12. No EX POST FACTO law, or law impairing the obli- 
gation of contracts or making any irrevocable grant or privilege, 
franchise, or immunity, shall be passed. 

SEC. 13. Private property shall not be taken for public use, 
or damaged, without just compensation as determined by a jury, 
which shall be paid as soon as it can be ascertained, and before 
possession is taken. No benefit which may accrue to the owner 
as the result of an improvement made by any private corporation 
shall be considered in fixing the compensation for property taken 
or damaged. The fee of land taken for railroad tracks or other 
highways shall remain in such owners, subject to the use for which 
it is taken. 

SEC. 14. No distinction shall ever be made by law between 
resident aliens and citizens, in reference to- the possession, enjoy- 
ment or descent of property. 

SEC. 15. No person shall be imprisoned for debt arising out 
of or founded upon a contract. 

SEC. 16. The militia shall be in strict subordination to the 
civil power. No soldier in time of peace shall be quartered in any 
house without the consent of the owner, nor in time of war, except 
in the manner prescribed by law. 

SEC. 17. No tax or duty shall be imposed without the consent 
of the people or their representatives in the Legilsature, and all 
taxation shall be equal and uniform. 

SEC. 18. No law shall be passed granting to any citizen, class 
of citizens, or corporation, privileges or immunities which upon 
the same terms shall not equally belong to all citizens or corporations. 

SEC. 19. Election shall be free and equal, and no power, 
civil or military, shall at any time interfere to prevent the free ex- 
ercise of the right of suffrage. Soldiers, in time of war, may vote 
at their post of duty in or out of the State, under regulations to be 
prescribed by the Legislature. 

SEC. 20. All courts shall be open, and every man for an in- 
jury done him in his property, person or reputation, shall have 
remedy by due course of law, and right and justice, administered 
without denial or delay. 

SEC. 21: No power of suspending law shall be exercised un- 
less by the Legilsature or its authority. 

SEC. 22. No person shall be attained of treason or felony 
by the Legislature. 

SEC. 23. Excessive bail shall not be required, excessive fines 
imposed, nor cruel punishments inflicted. 



134 SOUTH DAKOTA DEBATES 1889 

SEC. 24. The rights of the citizens to bear arms in defense 
of themselves and the State shall not be denied. 

SEC. 25. Treason against the State shall consist only in 
levying war against it, or in adhering to its enemies, or in giving 
them aid or comfort. No person shall be convicted of treason un- 
less on the testimony of two witnesses to the same overt act or 
confession in open court. 

SEC. 26. All political power is inherent in the people and all 
free government is founded on their authority, and is instituted for 
their equal protection and benefit, and they have the right in 
lawful and constituted methods to alter or reform their forms of 
government in such manner as they may think proper. And the 
State of Dakota is an inseparable part of the American Union and 
the Constitution of the United States is the supreme law of the 
land. 

SEC. 27. The blessings of a free government can only be 
maintained by a firm adherance to justice, moderation, temperance, 
frugality and virtue, and by frequent recurrence to fundamental 
principles. 
MR. PRESIDENT: 

Your- Committee on Municipal Corporations to whom was 
referred Article X, entitled, "Municipal Corporations", have con- 
sidered the same and have compared said Article X with the Sioux 
Falls Constitution and the Act of Congress known as the "Omnibus 
Bill" and have instructed me to report the following as Article 
X of the Constitution and that the same is in accordance with the 
Sioux Falls Constitution and the changes fhereto authorized by 
the Omnibus Bill. 

DAVID HALL, 
H. L. FELLOWS, 
J. F. WOOD, 
GEO. C. COOPER, 
J. ATKINSON, 
ARTICLE X. 

MUNICIPAL CORPORATIONS. 

SECTION 1. The Legislature shall provide by general laws 
for the organization and classification of municipal corporations. 
The number of such classes shall not exceed four and the powers 
of each class shall be defined by the general laws, so that no such 
corporations shall have any powers, or be subject to any restrictions 
other than all corporations of the same class. The Legislature 
shall restrict the power of such corporations to levy taxes and 
assessments, borrow money and contract debts, so as to prevent 
the abuse of such power. 

SEC. 2. Except as otherwise provided in this Constitution, 
no tax or assessment shall be levied or collected, or debts contracted 
by municipal corporations, except in pursuance of law, for public 



LIMITATIONS OF ORGANIC ACT 135 

purposes specified by law ; nor shall money be raised by taxation, 
loan or assessment, for one purpose, ever be diverted to any other. 

SEC. 3. No street passenger railway or telegraph or telephone 
line shall be constructed within the limits of any village, town or 
city without the consent of its local authorities. 

Mr. President: The report of the Committee on Compensa- 
tion of Public Officers is before the Convention ; what will the Con- 
vention do with the report? 

Mr. Sterling: I move it be made a special order for tomorrow's 
session. 

Which motion prevailed. 

The President: The report of the Committee on Amendments 
and Revision of the Constitution is before the Convention; what 
will you do with this report? 

Mr. Willis: I move that the remainder of the reports of 
Standing Committees as made today be made a special order for 
tomorrow. 

Which motion prevailed. 

The President: What is the further pleasure of the Con- 
vention; the Convention has a special order for this hour? 

Report of the Committee on Rights of Married Women was 
read by the Clerk. 

Mr. Sterilng: I move the adoption of the report. 

Which motion was duly seconded. 

Mr. Humphrey: I am not fully satisfied with the form of 
the report ; though I would not knowingly cast upon the Committee 
any reflection as I am one of them. I neglected to confer with 
the Committee in regard to it. The point I have in mind is simply 
this ; we are not here to draft an article or section of the Constitu- 
tion, as stated in this report, in compliance with the Constitution 
and the Omnibus Bill ; we are here only for the purpose, under 
restrictions, to draft such changes and amendments as are required 
by the provisions of the Omnibus Bill. This report here, purports 
to be simply a section of the proposed Constitution which they 
inform us in their report is in compliance with the Constitution 
and the Omnibus Bill ; that the people are without any knowledge 
that it is the original Constitution; the point is that every report 
of the Standing Committees should clearly and plainly show what 
changes if any, are made in the Constitution by their report. 

Mr. Jolley: I do not understand that this report, handed 



136 SOUTH DAKOTA DEBATES 1889 

in yesterday by the Committee on Rules, is ironclad; only they 
want some uniform report ; they can report in addition to that any 
change that is made. The gentleman from Faulk County can, if 
he wishes, lumber up the record; they have the right to do it; 
nothing to stop them; no rule, made by a committee of this Con- 
vention can stop them; if each Committee report that they have 
compared this article with the Sioux Falls Constitution and have 
made such changes as are authorized by the Omnibus Bill, if in 
addition to that they want to go into detail and show what changes 
they have made, I do not know any rule to preclude them. 

Mr. Humphrey: They do not show that there is any changes, 
or that it is in accordance with the Constitution. "And have in- 
structed me to report the following as section" so and so, "which 
is in compliance with the Constitution and Omnibus Bill"! No, 
Mr. President, I do not desire to lumber or cumber up the records 
of our Journal, but I do hold that the Journal ought to show to 
those whenever reading it say a hundred years from now, any amend- 
ment made in the Constitution. It seems to me to take this report 
where it ends and add, "And we report the following changes and 
amendments" (then truly state what they are) and then let the 
form read as follows: "Your Committee respectfully recommend 
the amendments", etc. We are not here to adopt that Constitu- 
tion we are here for its revision, and if the report follow the words, 
"We are instructed to report the following changes and amend- 
ments" (briefly state them) and then state that the article as 
amended will read as follows, then recommend the adoption of 
the amendment in the submission of the article. 

The President: Is the Convention ready for the question? 
It is moved that the report of the Committee be adopted. 

The motion, reaching a vote, was duly carried and the report 
of the Committee on Rights of Married Women was duly declared 
adopted. 

Mr. Humphrey: I move you that the report of Standing 
Committees be required to clearly and plainly show what, if any, 
changes and amendments 'of the Constitution are proposed. 

Mr. Hole: I move that the resolution be referred to the Com- 
mittee on Rules. 

Which motion prevailed. 

Mr. Sterling: I move you, Sir, that the report of the Committee 



RIGHTS OF MARRIED WOMEN 137 

on Rights of Married Women just adopted, be referred to the Com- 
mittee on Arrangement and Phraseology. 

The President: I do not think it is necessary for the Con- 
vention to so order; it would go there if it is not ordered. 

Mr. Sterling: I may be mistaken ; my opinion is the reports 
should go to the Committee on Arrangement and Phraseology and 
after that Committee report that there should be a vote taken on 
the Constitution as a whole and upon that the ayes and' nays should 
be called and we should pass it as upon the final passage of a bill 
in any body. 

Mr. Davies: I move that we adjourn. 

Which motion prevailed and the Convention was adjourned 
until Friday, July 19th, 1889, at two P. M. 



SIXTEENTH DAY. 

Sioux Falls, Dak., July 19th, 1889. 

Two o'clock P. M. 

Pursuant to adjournment the Convention re-assembled with 
President Edgerton in the chair. 

Prayer was offered by Mr. Matson as follows: 

O God, our Father, we recognize Thee as the Giver of all good. 
Thou art our sufficiency in times of temptation and in need. In 
trial we have the assurance that all our needs shall be supplied 
according to Thy wishes. If we lack wisdom we are encouraged 
to ask of Thee, who giveth liberally. We acknowledge at this hour 
our need of wisdom and understanding in our work and most 
ardently do we pray that we may receive of Thy knowledge so that 
all we do may be approved of Thee. May it commend itself to 
the best judgment of the people. We ask that Thou wilt help us 
to be thoughtful and discreet, carefully weighing all the interests 
that may come before us for our consideration, both here and in 
our committees. May we studiously endeavor to be both harmless 
and wise. We ask that we may personally be careful that we 
injure no man in his rightful interests, and also personally alert 
that we do no injury to those interests pertaining to the best wel- 
fare of the people. We ask these things in our Redeemer's name. 

AMEN. 

Mr. Fellows: I move that we dispense with the reading of 
the Journal. 

Which motion prevailed. 

Mr. Spooner: Ought we not to make corrections now in the 
Journal where they have been observed? I notice the names of 
some of the Committees have been omitted. The Committee on 
Amendments and Revision of the Constitution ; also the Committee 
on Corporations Other Than Banking and Municipal, the names 
of the Committee have been omitted ; I move that they be inserted. 

The President: They will be inserted where they are not in 
the report. The Clerk will so correct it. 



140 SOUTH DAKOTA DEBATES 1889 

Mr. Spooner: Also in regard to the uniformity in the reports 
according to the form which was suggested by the Committee on 
Rules, it would indicate that the Chairman only was to sign which 
I did in the case of the Committee on the Bill of Rights ; I move 
that the names of the whole Committee be inserted. 

The President: I would suggest, Dr. Spooner, that sug- 
gestions do not go in the record. 

Mr. Spooner: I move that in the case of the report of the 
Committee on Bill of Rights that the names of the whole Com- 
mittee be inserted. 

Which motion prevailed. 

The President: The Clerk would like to have the Chairman 
of the Committee inform him who would make the correction ; the 
difficulty is, the report is printed and handed in; now the Clerk is 
ordered to amend the report; that is in and printed; the report 
was made yesterday, signed by the Chairman and has become a 
part of the records of this Convention; now the Convention orders 
it amended. 

Mr. Hole: I see no way but to make a motion to re-commit 
it to the Committee, and let it come in properly signed. 

Mr. Dickinson: As I am a member of the Committee I would 
like to make a statement ; I am not so desirous for glory that I want 
my name to appear with all the Committees of which I am a mem- 
ber. It will save a good deal of printing if only the name of the 
Chairman appears; I should prefer to let it remain as it is, the 
Chairman reporting in behalf of the Committee. 

Mr. Sterling: I move that we re-consider the vote, by which 
the Clerk was instructed to amend this report. 

Which motion prevailed. 

The President: The question now before the Convention is, 
shall the Clerk amend the report of the Committee by adding 
the balance of the names of the Committee to the report? 

Mr. Humphrey: It would seem to me that the position held 
by the Chair is that of order. It is incompetent for us to amend 
this report until the report is before the Convention for consider- 
ation and the omission of the names would be regarded as an 
ordinary error of the Journal, and might be inserted simply as 
the Journal. It does not seem to me proper to take up that re- 
port prior to the time that we have the report itself before the Con- 



FORM OF COMMITTEE REPORTS 141 

vention for consideration. I do not think it would be a proper 
time to consider an amendment to the report and think the motion 
is out of order. 

The President: The motion before the "Convention is, shall 
the Clerk amend the report of the Committee? 

Which motion was lost. 

Under the order of business, reports from Standing Committees ,. 
Mr. Stoddard as Chairman of the Committee on Election and 
Right of Suffrage, reported as follows: 
MR. PRESIDENT: 

The Committee to whom was referred Article VII, entitled, 
"Election and Right of Suffrage" respectfully report that we have 
found the same to be in conformity with the Enabling Act and 
recommend that no alterations be made, and the article as attached 
hereto I send to the Secretary's desk. 

Mr. Murphy: As Chairman of the Committee on Federal 
Relations, I report that our report is ready and is sent to the desk 
of the Secretary. 

Education and School Lands. 

Mr. Humphrey: In the absence of Mr. Coats, the Committee 
have prepared a report and it is ready with the exception of a 
couple of signatures of a couple of members who have not yet 
arrived. 

State Institutions and Public Buildings. 

Mr. Young: The report is sent to the desk. 

Exemptions. 

Mr. Buechler: The report is in the hands of the Secretary. 

Mr. Davies: The 'report of the Committee on Banking and 
Currency, is ready and sent to the desk of the Clerk. 

Mr. Clough: The report of the Committee on Military af - 
fairs is ready, but three members of the Committee are absent. 

Mr. Houlton: Announced that the report of the Commit to- 
on Seal and Coat of Anns was ready and sent to the Clerk's desk. 

Mr. Eddy: The report of the Committee on Miscellaneous 
Subjects is ready and sent to the desk. 

Mr. Lee: I announce the report of the Committee, on Manu- 
factures and Agriculture, as complete with the exception of one 
name, an<l as in the hands of the Oerk. 



142 SOUTH DAKOTA DEBATES 1889 

Mr. Sterling: I send to the Clerk's desk the report of the 
Judiciary Committee on the resolution referred to it. 

Under the order of business consideration of reports of Stand- 
ing Committees. 

Mr. Davies: I move that the reports of the Standing Com- 
mittees of today, be made the special order for tomorrow. 

Mr. Dickinson: I move as an amendment that it be made a 
special order for Tuesday. 

Mr. Davies: I accept that. 

The motion prevailed and the reports were made the special 
order for Tuesday afternoon. 

The President: The time for the special order has arrived; 
we will now proceed to the consideration of the reports of yesterday, 
made a special order for today. 

Mr. Van Buskirk, of Codington County, called to the chair. 

The Chairman: The first matter upon the special order is 
the report of the Committtee on Compensation of Public Officers, 
read as follows by the Clerk. 

The Chairman: Gentleman, what will you do with the report 
of this Committee? 

Mr. Sterling: I move the adoption of the report as read. 

The Chairman: Is there anything to be said upon this motion ? 
If so you will have an opportunity to make any suggestions, the 
motion is to adopt the report of the Committee on Compensation 
of Public Officers. 

The matter coming to a vote prevailed, and the report of the 
Committee was declared adopted. 

The Clerk: Reads the report of the Committee on Public 
Accounts and Expenditures as follows: 

The Chairman: The report of the Committee on Public Ac- 
counts and Expenditures is before the Convention; what will you 
do with it? 

Mr. Davies: I move that the report be adopted. 

Motion seconded. 

.Mr. Humphrey: I should like to inquire of the Committee 
what changes or amendments are made in their report from the 
original Constitution. 

Mr. Jolley: The Chairman of the Committee is away; I know 
there are no changes made. 



CONSIDERATION OF REPORTS 143 

The Chairman: The motion before the Convention now is, 
shall we adopt the report of the Committee on Public Accounts? 

The motion prevailed, and the Chair announced that said 
report was adopted. 

The Clerk reads the report of the Committee on Amendments 
and Revision of the Constitution, as follows: 

The Chairman: Gentlemen of the Convention, you have 
before you the report of the Committee on Amendments and Re- 
vision of the Constitution. 

Mr. Dickinson: I notice in Section 2, near the last of the 
Section, the Convention was to consist of as many members as 
the House of Representatives. When the copy of the Constitution 
in the hand book was compared with the original Constitution 
it was found that the words "Of the Legislature" was inserted 
there; I think they are omitted. It should be the House of Rep- 
resentatives of the Legislature. 

The Chairman: Do you make the motion? 

Mr. Dickinson: I move that it be re-committed to the Com- 
mittee for amendment in that particular. 

Mr. Boucher: I move as an amendment that the amendment 
be made at this time without re-committing the report. 

Mr. Hole: I would like to inquire of the Chairman of the 
Committee with what copy this is compared by the Committees. 
If it is compared with the various copies that are floating around, 
I can see how these mistakes will be made. 

Mr. Boucher: I will state I had what I supposed was a 
correct copy. The correction was made at the time Mr. Humphrey 
was Chairman of the Committee.. I thought he had a correct copy. 

Mr. Humphrey: I would like to inquire what is the question 
before the House as it stands. 

The Chairman: I do not remember whether the first motion 
as made was seconded. 

Mr. Sterling: I seconded the amendment that the correction 
be made now. 

Mr. Humphrey: I would suggest that in connection with 
that errata found in the hand book that that is an error on the 
part of the Committee without doubt. The correction will be 
made by the Committee from the errata. I remember well that 



144 SOUTH DAKOTA DEB.ATES 1889 

the number should be the number of the members of the House 
of Representatives of the Legislature. 

The Chairman: The motion of Mr. Dickinson was that it 
be referred back to the Committee for correction; the amendment 
was made that it be now amended in this particular, by inserting 
these words, "Of the Legislature" ; are- you ready for the question? 

The amendment prevailed. 

The Chairman: The motion of Mr. Dickinson as now amended 
will be put. 

The motion prevailed. 

The Clerk reads the report of the Committee o'n Corporations 
Other Than Banking and Municipal, as follows: 

Mr. Dickinson: As this article is quite length yand no changes 
were made in it, I move that the reading of it be dispensed with. 

Mr. Corson: I would ask the Chairman of this Committee if 
any changes were made. 

Mr. Dickinson: I am Chairman of that Committee and there 
were no changes made in that article. 

The Chairman: Unless there are objections made, the reading 
of the report will be dispensed with. 

The motion to adopt said report reaching a vote, prevailed. 

The report of the Committee on Bill of Rights was read by 
the Clerk as follows: (Here insert.) 

The Chairman: You have before you the report of the Com- 
mittee on Bill of Rights ; what is the pleasure of the Convention. 

Mr. Fellows: I would like to have the report of the Com- 
mittee as to what changes they have made. 

Mr. Spooner: The amendment was indicated in the report 
as read by the Clerk. 

The Chairman: Perhaps the Chairman might add it is the 
original bill only with the word added that would make it read 
as desired. 

Mr. Boucher: I move that the report of the Committee on 
Amendments and Revision of the Constitution be adopted. 

Which motion was seconded. 

The Chairman: This is the report of the Committee on Bill 
of Rights; I think the report of the Committee on Amendments 
and Revision of the Constitution has been adopted ; I so understand 
it ; this is the Bill of Rights that is under consideration now. 



BILL OF RIGHTS ADOPTED 145 

Mr. Chairman: The question before the House now is upon 
the adoption of the report of the Committee upon the Bill of 
Rights. As I understand, it is^precisely as before with the ex- 
ception of the amendment so that it will read "South Dakota" 
instead of "Dakota". 

The motion prevailed and the report of the Committee on 
Bill of Rights was adopted. 

Mr. Dickinson: It is my recollection, that Mr. Boucher is 
correct as to the report of the Committee on Amendments and 
Revision of the Constitution not having been adopted. It was the 
report to which I made an amendment ; it was amended and I 
do not recollect that the motion was made to adopt the report as 
amended. I move you, Sir, that the report as amended be adopted- 
Mr. Atkinson ; That is my recollection ; I second the motion. 

Mr. Humphrey: I would like to have the Chairman state to 
the Convention if there was any amendment or alteration reported. 

Chairman of the Committee: No there was not. 

The motion to adopt the report of the Committee on Amend- 
ments and Revision of the Constitution as amended, prevailed. 

The Chairman: The next order of business is consideration 
of the Committee on Municipal Corporations. 

The Clerk reads the report of the Committee as follows: (Here 
insert it). 

Mr. Davies: I would ask if there were any changes in this. 

Mr. Whitlock : There was none. 

Mr. Davies: I move the adoption of the report. 

Which motion prevailed. 

Mr. Atkinson: I notice in the names of the Committee as 
printed is "J. Atkinson"; I move it be changed to read "I. At- 
kinson." 

Which motion prevailed. 

Mr. Harris moved that the Convention do now adjourn. 

Mr. Sterling: There were some reports from the Judiciary 
Committee ; other than the reports upon the general work assigned 
to them ; I suppose it would be well to read those reports ; they 
are up in the Clerk's desk. 

The Clerk read as follows: 
MR. PRESIDENT: 

Your Committee on Judiciary, to whom was referred the 
resolution requesting the Committee to report as to the necessity 



J46 SOUTH' DAKOTA DEBATES, 1889. 

of accepting the several new grants of lands, moneys and buildings 
to South Dakota by a resolution of the Convention, would respect- 
fully report: That without determining the necessity of such 
resolution, the Committee recommend, that a section be incorpor- 
ated in the Constitution, formally accepting such grants. 

THOMAS STERLING, 
H. A. HUMPHREY, 
A. J. BERDAHL, 
H. W. EDDY, 
W. T. WILLIAMS, 
S. A. RAMSEY, 
D. CORSON, 

C. J. B. HARRIS, 

S. B. VAN BUSKIRK, 
of the Judiciary Committee 

The President: What will the Convention do with the report 
of the Committee? 

Mr. Wescott: I move that the report be adopted. 
Mr. Davies: I would amend that and make it the special 
order for next Tuesday. 

Mr. Humphrey: I move as a substitute of the motion before 
the House that the report of the Judiciary Committee be referred 
to the Committee on Amendments and Revision of the Consti- 
tution with instructions to report on Tuesday. 
Which motion prevailed. 

The Clerk reads the second report of the Committee on Ju- 
diciary, as follows: 

Sioux Falls, July 19, 1889. 
MR. PRESIDENT: 

Your Committee on Judiciary to whom was referred the reso- 
lution pertaining to the signing of the Constitution by members 
of the Constitutional Convention of 1885, who by inadvertance 
or other cause were prevented from signing the same, respectfully 
report ; 

That upon consideration of such resolution it is the sense 
of the Committee that this Convention has no authority to grant 
permission to such members to affix their signatures to the Con- 
stitution of 1885. 

THOMAS STERLING, 
H. A. HUMPHREY, 
A. J. BERDAHL, 
H. W. EDDY, 
W. T. WILLIAMS, 
S. A. RAMSEY, 

D. CORSON, 



LEASE OP SCHOOL LANDS 147 

C. J. B. HARRIS, 
S. B. VAN BUSKIRK, 
of the Judiciary Committee. 

The Chairman: What will you do with the further report 
of the Judiciary Committee ? 

Mr. Young: I move that it be adopted. 

Which motion prevailed. 

Mr. Sterling: Under the call of business, introduction of 
propositions relating to the Constitution I sent to the Clerk's desk 
a resolution providing for an amendment to the Section but did 
not have an opportunity to call it to the attention of the members 
and the Chair at that time. I move you that we return to that 
order of business. 

Which motion prevailed and the Clerk read the resolution, 
as follows: 

RESOLVED: That the report of the Committee on Education 
and School Lands be amended so that Section 9 of Article 5 shall 
read as follows: 

SEC. 9. The lands mentioned in this article may, under such 
regulations as the Legislature may prescribe, be leased for periods 
of not more than five years, in quantities not exceeding one section 
to any one person or company. All rents shall be payable annually 
in advance, nor shall any lease be valid until it receives the ap- 
proval of the Governor. 

Mr. Sterling: I move now that the resolution be made a 
part of that special order under which the report of the Committee 
on Education and School Lands is to be considered next Tuesday. 

The Chairman: It will be made the special order for next 
Tuesday unless objection is made. 

Mr. Hole: I think in deference to the Committee that has 
that special work before them, that this should be referred to them, 
and as there is no second to the gentleman's motion, I will move 
you that this be referred to the Committee on Education and 
School Lands. 

Which motion was duly seconded, and by vote of the Con- 
vention, adopted, 

Mr. Harris: I renew my motion to adjourn. 

Mr. Clough: I sent a request to the desk for the old soldiers 
to sign their names, their rank, company and regiment on a slip 
of paper and hand the same to me. The object of this is to find 



148 SOUTH DAKOTA DEBATES 1889 

out how many members of the Convention are veterans; that 
this information may be made a matter of record and be preserved. 

The Chairman: The motion before the House is to adjourn 
and will now be put. 

The motion prevailed and the House stands adjourned. 



SEVENTEENTH DAY. 

Sioux Falls, Dak., July 20, 1889. 

Two o'clock P. M. 

Convention re-convened pursuant to adjournment. 

Mr. Corson, of Lawrence, in the Chair. 

Prayer by Mr. Clough, of Watertown. 

Our Heavenly Father, as we commence the labors of this day 
we desire to thank Thee for Thy preserving care; for Thy tender 
mercies toward us, for Thy Father's love that is revealed to us 
We now ask Thy blessing on this Convention here and absent; 
upon the intricate work resting upon the Commission we have sent 
out to do. Grant Thy blessing upon this day's proceedings; follow 
us all the days of our lives, and give us an abundant entrance into 
Thy kingdom, we ask for Christ's sake. 

AMEN. 

The Clerk read the following communication: 

Sioux Falls, Dak., July 20, 1889. 
JUDGE CORSON: 

Will you please preside in the Convention during my absence? 

A. J. EDGERTOX. 

Mr. Young: I move we do now adjourn. 

Which motion prevailed and the Convention stands adjourned. 



NINETEENTH DAY. 

Sioux Falls, Dak., July 22nd, 1889. 

Two o'clock P. M. 

Convention re-assembled pursuant to adjournment. 

Mr. Corson, of Lawrence, presiding. 

The Chaplain: We thank Thee, O God, for all that Thou hast 
done for us in the past and we ask Thee that Thou wilt so direct 
our path and so lead us out in the way that our paths will be paths 
of peace and our ways, ways of righteousness, that we shall do 
great good for ourselves and the commonwealth that we represent. 
Wilt Thou go with us and own our efforts this day, we ask it in the 
name of Jesus, our Savior. 

AMEN. 

The Journal of the preceding day was read and approved. 
Under the order of business, reports of Standing Committees, the 
Committee on County and Township Organization announced 
their report was ready. 

The Committee on Engrossment and Enrollment sent to the 
desk of the Secretary an engrossed copy of the memorial that was 
to be sent to the President of the United States, concerning school 
lands. 

The Chairman: That will be left until tomorrow until Presi- 
dent Edgerton returns. 

Mr. Spooner: I move that the report of the Committee on 
County and Township Organization be made a special order for 
tomorrow. 

Which motion prevailed. 

Under the order of business announced by the Chair in the 
usual call of business for the day, Presentation of Resolutions and 
Propositions Relating to the Constitution. 



152 SOUTH DAKOTA DEBATES 1889 



Mr. Goddard: I have a resolution and ask that it be read 
and referred to a Committee. 

WHEREAS: There has been presented to this Convention some 
evidence of an uncertainty as to where the Seventh Standard 
Parallel upon which the line of Dakota is to be divided into two 
states is, and 

WHEREAS: It seems necessary to confer with the Consti- 
tutional Convention of North Dakota, now in session at Bismarck, 
to adjust this matter amicably and permanently, 

RESOLVED: That the Convention instruct the Commission 
sent by this body to Bismarck to come to the best possible agreement 
with the Committee of the North Dakota Convention concerning 
said boundary line and report the same to this body. 

The Chairman: It will be referred to the Committee on Name, 
Boundary and Seat of Government, if no objection is made. The 
Chair hears no objection; it is so referred. 

The Chairman: I will call attention of the Convention to 
the fact that in the report of the Committee on Compensation of 
Public Officers, there is a slight error in using the word "each"; 
the report has been adopted and it may be necessary to reconsider 
the report for the purpose of correcting that error; it was copied 
from an erroneous copy of the Constitution I suppose; the word 
"each" has been inserted where it should be omitted. 

Mr. Spooner: According to the rules, must not a motion to 
re-consider be made the next day? 

The Chairman: It would be in time today, I think. 

Mr. Spooner: I move you, Mr. President, we consider that 
motion whereby the Convention adopted the report of the Com- 
mittee on Compensation of Public Officers. 

The Chairman: You will notice on the first page of the pro- 
ceedings of July 18th it occurs on the last line, "The Commissioner 
of School and Public Lands shall each receive"; of course Com- 
missioner of School and Public Lands is one officer ; that word "each" 
should not appear; it is moved and seconded that the vote by 
which that report was adopted be re-considered. 

Which motion prevailed. 

Mr. Clough: I move the report be amended in accordance 
with the fact by striking out the word "each". 

Mr. Hartley: I call upon the gentleman to specify the line. 



ROUTINE 153 



The Chairman: It is the word "each" occurring in the last 
line of the first page of the printed Journal of July 18th, in the 
report of the Committee on Compensation of Public Officers. 

The motion was adopted by vote of the Convention. 

Mr. Dickinson : I move the report as amended be now adopted. 

Which motion received a second and duly prevailed. 

On motion the Convention adjourned. 



TWENTIETH DAY. 

Sioux Falls, July 23d, 1889. 

Two o'clock P. M. 

Convention convened pursuant to adjournment, with Mr. 
Corson, of Lawrence in the Chair. 

Prayer was offered by Mr. Matson, of Kingsbury County. 

O Lord, our Heavenly Father, we thank Thee today, for Thy 
gracious favor shown us thus far in the history of the Convention; 
for as much of life as we are permitted to enjoy and for the feeling 
of friendship and good will which prevails among the members. 
And we thank Thee for the general desire to know the right in all 
matters, and to do justly in our deliberations. We pray at this 
time for a continuation of Thy blessing; may we not be perplexed 
in our work by any little ambitious natures; may we forget self; 
we pray that we may truly know what is right on all questions, 
and do the right fearlessly; we pray that the result of our labors 
may prove a lasting good to all concerned. Hear us at this time 
for the homes we represent ; for the loved ones from whom we are 
separated at this time, and the several interests we for the present 
have abandoned. Guide us through this day and through the 
remaining days of the Convention and through the future of our 
lives, for Jesus' sake. 

AMEN. 

Journal of the previous day was read and approved. 

The Chairman: The first order of business, is Communications 
and Presentation of Petitions. 

Communication from the American Sabbath Union was pre- 
sented by Mr. President, pro tern, as follows: 

The American Sabbath Union, whose office is No. 23 Park 
Row, earnestly recommend that a provision should be inserted in 
your new Constitution, protecting and encouraging Sabbath ob- 
servance, and perhaps the following form would be acceptable to 
the Convention: "No work or trade shall be carried on the 
first day or the Week, usually called Sunday, except such as may 
be strictly charitable or necessary, and the Legislature shall pass 
laws regulating and encouraging the obesrvance of the Holy 



156 SOUTH DAKOTA DEBATES 1889 

Sabbath by all the people." 

If the matter has not already been favorably acted upon by 
the Convention will you not kindly take the necessary steps to have 
this or a similar proposition adopted by the Convention and then 
lay the Constitution for the new State upon the sure foundation of 
the divine work and reap the gratitude of your own people and those 
of the whole country. 

SIGNED: ELIOTT F. SHEPHERD, 

President of the American Sabbath Union. 
U. S. MAYOR, 
GEN. O. O. HOWARD, 
of the Executive Committee. 
J. H. KNOWLES, 
WILBER.F. CROFTS, 

Secretary. 

Mr. Clough: As there is no committee to which that can go 
I move that it be assigned to a special committee of five. , 

Motion duly seconded. 

The motion prevailed. 

The Chairman: I will appoint as a Committee of Special 
Reference on the Communication, Messrs. Clough, of Codington; 
Huntley, of Jerauld; Willis, of Aurora; Wood, of Pennington; 
and Ramsey, of Sanborn. 

The Chairman: Unfinished business of the previous day; 
nothing I believe but special orders. 

Reports from Standing Committees ? 

Congressional and Legislative Apportionment? No report 
ready. 

Judiciary? Report sent to the desk. 

Schedule? Not ready. 

Name, Boundary and Seat of Government? 

Mr. Stroupe: The report is signed by all but two of the Com- 
mittee who are absent, and is sent to the desk. 

State, County and Municipal Indebtedness. 

Mr. Sherwood: Not ready. 

Legislative, McFarland (Chairman.) Report sent to desk. 

Education and School Lands? Coats (Chairman.) No report 
ready. 

Revenue and Finance. 

Goddard, Chairman: Not ready. 

Printing? No response. 

Expenses of the Convention? 



JUDICIAL DEPARTMENT 157 

Mr. Huntley: Not ready. 

The President: The Secretary will read these reports and 
unless it is the desire of the Convention, the Clerk will not read 
that portion of each report, quoting the Constitution; they are 
printed, and you can examine them more particularly. 

The Clerk reads the report of the Committee on Judiciary, 
as follows: 
MR. PRESIDENT: 

Your Committee on Judiciary to whom was referred Article 
V of the Constitution, entitled, "Judicial Department", having had 
the same under consideration together with those provisions of 
the Omnibus Bill relating to said department, beg leave to report 
as follows: 

FIRST. That upon the question of the power of the Conven- 
tion to increase the number of Judicial Circuits, the Committee, 
after free discussion and examination, conclude that under Section 
5 of said Omnibus Bill, allowing such changes in the Constitution 
as relate to the re-apportionment of Judicial Districts, such increase 
by this Convention is clearly authorized. 

SECOND. That the Committee have likewise carefully con- 
sidered the expediency and the necessity of such increase. In the 
older and more thickly populated counties a large volume of busi- 
ness has been long pending before the courts; and new counties, 
largely settled since the apportionment by the Convention of 1885, 
have added to the litigation to be disposed of in all the Circuits; 
and, from all the information before the Committee it is apparent 
that the six Judicial Circuits as providid by the Constitution of 
1885 are inadequate in number for the transaction of the business 
pertaining thereto, and that the creation of county courts with 
jurisdiction as limited by the Constitution will not afford the 
required relief. 

THIRD. That in recommending an increase from six to eight 
Judicial Circuits, the Committee believes the interests of justice 
and economy will be subserved, and that such is the least increase 
consistent with a proper administration of the law. 

FOURTH. That in the re-apportionment made by the Com- 
mittee care has been taken that the Circuits shall be formed by 
compact territory and bounded by county lines, and that, having 
reference to such compactness and the amount of business to be 
done, your committee believe that the apportionment, as shown 
by the amendment to Section 16 of Article V herewith submitted,, 
is a just and equitable apportionment of the State into Judicial 
Circuits. That such apportionment annuls Section 16 of Article 
Five, so that the same shall read^as follows; 

SECTION 16. Until otherwise ordered by law said circuits, 
shall be eight in -number and constituted as follows, viz.: 



158 SOUTH DAKOTA DEBATES 1889 



FIRST CIRCUIT: The Counties of Union, Clay, Yankton, 
Turner, Bon Homme, Hutchinson, Charles Mix, Douglas, Todd, 
Gregory, Tripp and Meyer. 

SECOND CIRCUIT: The Counties of Lincoln, Minnehaha, 
McCook, Moody and Lake. 

THIRD CIRCUIT: The Counties of Brookings, Kingsbury, 
Deuel, Hamlin, Codington, Clark, Grant, Roberts, Day and the 
Whapeton and Sisseton Reservation, except such portion of said 
reservation as lies in Marshall County. 

FOURTH CIRCUIT: The Counties of Sanborn, Davison, Aurora, 
Brule, Buffalo, Jerauld, Hanson, Miner, Lyman, Presho, and 
Pratt. 

FIFTH CIRCUIT: The Counties of Beadle, Spink, Brown 
and Marshall. 

SIXTH CIRCUIT: The Counties of Hand, Hyde, Hughes, 
Stanley, Sully, Potter, Faulk, Edmunds, Walworth, Campbell, 
McPherson, and all that portion of said State lying east of the 
Missouri river and not included in any other Judicial Circuit. 

SEVENTH CIRCUIT: The Counties of Pennington, Custer, 
Fall River, Shannon, Washington, Zeibach, Sterling, Nowlin, 
Jackson, Washabaugh, and Lugenbeel. 

EIGHTH CIRCUIT: The Counties of Lawrence, Meade, Scobey- 
Butte, Belano, Pyalt, Dewey, Boreman, Schnasse, Rinehart, Mar, 
tin, Choteau, Ewing, Harding, and all that portion of said State 
west of the Missouri river and north of the Big Cheyenne River 
and the north fork of the Cheyenne river not included in any other 
Judicial Circuit. 

FIFTH: The Committee further report amendments as fol- 
lows: In the first line of Section 38 of said Article V, insert the 
word "South" before the word "Dakota", and in the third line of said 
Section 38 insert the word "South" before the word "Dakota". 
And we herewith report Article V with the changes and amend- 
ments aforesaid incorporated therein which changes and amend- 
ments are necessary to comply with the provisions of the Omnibus 
Enabling Act and are authorized by the same, and the Committee 
respectfully recommend the adoption of said Article as amended. 
ARTICLE V. 

JUDICIAL DEPARTMENT. 

SECTION 1. The Judicial powers of the State, except as in 
this Constitution otherwise provided, shall be vested in the Supreme 
Court, Circuit Courts, County Courts, and Justices of the Peace, 
and such other courts as may be created by law for cities and in- 
corporated towns. 

SUPREME COURT. 

SEC. 2. The Supreme Court, except as otherwise provided 
in this' Constitution, shall have appellate jurisdiction only, which 
shall be co-extensive with the State, and shall have a general su- 



JUDICIAL CIRCUIT 159 



perintending control over all inferior courts, under such regulations 
and limitations as may be prescribed by law. 

SEC. 3. The Supreme Court and the Judges thereof shall 
have power to issue writs of habeas corpus. The Supreme Court 
shall also have the power to issue writs of mandamus, quo war- 
ranto, certiorari, injunction and other original and remedial writs, 
with authority to hear and determine the same in such cases, and 
such regulations as may be provided by law, provided, however, 
that no jury trials shall be allowed in said Supreme Court , but , in pro- 
per cases, questions of fact may be sent by said court to a Circuit 
Court to a trial before a jury. 

SEC. 4. At least two terms of the Supreme Court shall be 
held each year at the seat of government. 

SEC. 5. The Supreme Court shall consist of three Judges, to 
be chosen from districts by qualified electors of the State at large, 
as hereinafter provided. 

SEC. 6. The number of said Judges and Districts may, after 
five years from the admission of this State under this Constitution, 
be increased by law to not exceeding five. 

SEC. 7. A majority of the Judges of 'the Supreme Court 
shall be necessary to form a quorum or to pronounce a decision, 
but one or more of said Judges may adjourn the Court from day 
to day or to a day certain. 

SEC. 8. The term of the Judges of the Supreme Court, who 
shall be elected at the first election under this Constitution, shall 
be four years. At all subsequent elections the term of said Judges 
shall be six years. 

SEC. 9. The Judges of the Supreme Court shall by rule, 
select from their number a Presiding Judge, who shall act as such 
for the term prescribed by such rule. 

SEC. 10. No person shall be eligible to the office of Judge of 
the Supreme Court unless he be learned in the law, be at least 
thirty years of age, a citizen of the United States, nor unless he 
shall have resided in this State or Territory at least two years next 
preceding his election and at the time of his election be a resident 
of the district from which he is elected, but for the purpose of re- 
election, no Judge shall be deemed to have lost his residence in 
the District by reason of his removal to the seat of government in 
the discharge of his official duties. 

SEC. 11. Until otherwise provided by law, the districts from 
which the said Judges of the Supreme Court shall be elected, shall 
be constituted as follows: 

FIRST DISTRICT: All that portion of the State lying west of 
the Missouri river. 

SECOND DISTRICT: All that portion of the State lying east 
of the Missouri river and south of the Second Standard Parallel. 



160 SOUTH DAKOTA DEBATES 1889 

THIRD DISTRICT: All that portion of the State lying east of 
the Missouri river and north of the Second Standard Parallel. 

SEC. 12. There shall be a Clerk and also a Reporter of the 
Supreme Court, who shall be appointed by the Judges thereof, 
and who shall hold office during the pleasure of said Judges, and 
whose duties and emoluments shall be prescribed by law, and by 
the rules of the Supreme Court not inconsistent with law. The 
Legislature shall make a provision for the publication and dis- 
tribution of the decisions of the Supreme Court, and for the sale 
of the published volumes thereof. No private person or corpor- 
ation shall be allowed to secure any copyright to such decisions, 
but if any copyrights are secured they shall inure wholly to the 
benefit of the State. 

SEC. 13. The Governor shall have authority to require the 
opinions of the Judges of the Supreme Court upon important ques- 
tions of law involved in the exercise of his executive powers and 
upon solemn occasions. 

CIRCUIT COURTS. 

SEC. 14. The Circuits Courts shall have original jurisdiction 
of all actions and causes, both at law and in equity, and such ap- 
pellate jurisdiction as may be conferred by law and consistent with 
this Constitution; such jurisdiction as to value and amount and 
grade of offense, may be limited by law. They and the Judges 
thereof shall also have jurisdiction and power to issue writs of 
habeas corpus, mandamus, quo warranto, certiorari and other 
original and remedial writs, with authority to hear and determine 
the same. 

SEC. IS. The State shall be divided into judicial circuits, in 
each of which there shall be elected by the electors thereof, one 
Judge of the Circuit Court therein, whose term of office shall be 
four years. 

SEC. 16. Until otherwise ordered by law said Circuits shall 
be eight in number and constituted as follows, viz: 

FIRST CIRCUIT: The Counties of Union, Clay, Yankton, 
Turner, Bon Homme, Hutchinson, Charles Mix, Douglas, Todd, 
Gregory, Tripp and Meyer. 

SECOND CIRCUIT: The Counties of Lincoln, Minnehaha, Mo 
Cook, Moody and Lake. 

THIRD CIRCUIT: The Counties of Brookings, Kingsbury, 
Deuel, Hamlin, Codington, Clark, Grant, Roberts, Day and the 
Whapeton and Sisseton Reservation, except such portion of said 
reservation as lies in Marshall County. 

FOURTH CIRCUIT: The Counties of Sanborn, Davison, Au- 
rora, Brule, Buffalo, Jerauld, Hanson, Miner, Lyman, Presho 
and Pratt. 

FIFTH CIRCUIT: The Counties of Beadle, Spink, Brown, 
and Marshall. 



CIRCUIT COURT DISTRICT 161 

SIXTH CIRCUIT: The Counties of Hand, Hyde, Hughes, Sully, 
Stanley, Potter, Faulk, Edmunds, Walworth, Campbell, Mc- 
Pherson, and all that portion of said State lying east of the Missouri 
river and not included in any other judicial circuit. 

SEVENTH CIRCUIT: The Counties of Pennington, Custer, Fall 
River, Shannon, Washington, Ziebach, Sterling, Nowlin, Jackson, 
Washabaugh, Lugenbeel. 

EIGHTH CIRCUIT: The Counties of Lawrence, Meade, Scobey, 
Butte, Delano, Pyatt, Dewey, Boreman, Schnasse, Rinehart, 
Martin, Choteau, Ewing, Harding, and all that portion of said 
State west of the Missouri river and north of the Big Cheyenne 
river and the north fork of the Cheyenne river not included in any 
other judicial circuit. 

SEC. 17. The Legislature may, whenever two-thirds ot the 
members of each house shall concur therein, increase the number 
of judicial circuits and the judges thereof, and divide the State 
into judicial circuits accordingly, taking care that they be formed 
of compact territory and be bounded by county lines, but such 
increase of number or change in the boundaries of districts shall 
not work the removal of any judge from his office during the term 
for which he shall have been elected or appointed. 

SEC. 18. Writs of error and appeals may be allowed from the 
decisions of the Circuit Courts to the Supreme Court under such 
regulations as may be prescribed by law. 

COUNTY COURTS. 

SEC. 19. There shall be elected in each organized county a 
county judge who shall be judge of the county court of said county, 
whose term of office shall be two years until otherwise provided 
by law. 

SEC. 20. County Courts shall be courts of record and shall 
have original jurisdiction in all matters of probate guardianship 
and settlement of estates of deceased persons and such other 
criminal jurisdiction as may be conferred by law, provided that 
such courts shall not have jurisdiction in any case where the debt, 
damage, claim or value of the property involved shall exceed one 
thousand dollars, except in matters of probate guardianship and 
the estates of deceased persons. Writs of error and appeal may 
be allowed from county to circuit courts, or to the Supreme Court in 
such cases and in such manner as may be prescribed by law, pro- 
vided that no appeal or writ of error shall be allowed to the circuit 
court from any judgment rendered upon an appeal from a justice 
of the peace or police magistrate for cities and towns. 

SEC. 21. The County Court shall not have jurisdiction in 
cases of felony, nor shall criminal cases therein be prosecuted by 
indictment ;but they may have such jurisdiction in criminal matters 
not of the grade of felony, as the Legislature may prescribe, and 



162 SOUTH DAKOTA DEBATES, 1889. 

the prosecutions therein may be by information or otherwise as 
the Legislature may provide. 

JUSTICES OF THE PEACE. 

SEC. 22. Justices of the Peace shall have such jurisdiction as 
maybe conferred by law, but they shall not have jurisdiction of any 
case wherein the value of the property or the amount in contro- 
versy exceeds the sum of one hundred dollars, or where the boundar- 
ies or title of real property shall be called in question. 

POLICE MAGISTRATE. 

SEC. 23. The Legislature shall have power to provide for 
creating such police magistrates for cities and towns as may be 
deemed from time to time necessary, who shall have jurisdiction of 
all cases arising under the ordinances of such cities and towns re- 
spectively and such police magistrates may also be constituted ex- 
officio justice of the peace for their respective counties. 
STATE'S ATTORNEY. 

SEC. 24. The Legislature shall have power to provide for 
State's Attorney's and to prescribe their duties and* fix their com- 
pensation; but no person shall be eligible to the office of Attorney 
General or State's Attorney who shall not at the time of his election 
be at least twenty-five years of age and possess all the other quali- 
fications for Judges of the Circuit Courts as prescribed in this 
article. 

MISCELLANEOUS. 

SEC. 25. No person shall be eligible to the office of Judge 
of the Circuit Court or County Courts unless he be learned in the 
law, be at least twenty-five years of age, and a citizen of the United 
States; nor unless he shall have resided in this State or Territory at 
least one year next preceding his election, and at the time of his 
election be a resident of the county or circuit, "as the case may be, 
for which he is elected. 

SEC. 26. The Judges of the Supreme Court, Circuit Courts 
and County Courts shall be chosen at the first election held under 
the provisions of this Constitution, and thereafter as provided by 
law, and the Legislature may provide for the election of such officers 
on a different day from that on which an election is held for any 
other purpose, and may, for the purpose of making such provision, 
;xtend or abridge the term of office for any of such judges then 
holding, but net in any case more than six months. The term of 
office of all judges of Circuit courts, elected in the several judicial 
districts throughout the State shall expire on the same day. 

SEC. 27. The time of holding courts within said judicial cir- 
cuits and counties shall be as provided by law ; but at least one term 
ic circuit court shall be held annually in each organized count v 

the legislature shall make provision for attaching un-organized 
Bounties or territory to organized counties for judicial purposes 



SUPREME AND CIVIL JUDGES 163 

SEC. 28. Special terms of said courts may be held under such 
regulations as may. be provided by law. 

SEC. 29. The judges of the circuit courts may hold courts 
in other circuits than their own, under such regulations as may be 
prescribed by law. 

SEC. 30. The judges of the Supreme Court, circuit court and 
county courts shall each receive such salary as may be provided 
by law, consistent with this Constitution, and no such judge shall 
receive any compensation, perquisite or emoluments for or on ac- 
count of his office in an}' form whatever, except such salary; pro- 
vided, that county judges may accept and receive such fees as may 
be allowed under the land laws of the United St'ates. 

SEC. 31. No judge of the Supreme Court or circuit court 
shall act as attorney or counsellor at law,, nor shall any county judge 
act as attorney or counsellor at law in any case which is or may 
be brought into his court or which may be appealed therefrom. 

SEC. 32. There shall be a Clerk of the Circuit Court in each 
organized county, who shall also be Clerk of the County Court, 
and who shall be elected by the qualified electors of such county. 
The duties and compensation of said Clerk shall be as provided by 
law and regulated by the rules of the court consistent with the 
provisions of 1;; 

SEC. 33. Until the Legislature shall provide by law for fixing 
the terms of courts, the Judges of the Supreme, Circuit and County 
Courts, respectively, shall fix the terms thereof. 

SKC. 34. All laws relating to courts shall be general and of 
uniform operation throughout the State, and the organization,- 
jurisdiction, power, proceedings and practice of all the courts of 
the same class or grade, so far as regulated by law, and the force and 
effect of such of the proceedings, judgments and decrees of such 
courts severally shall be uniform, provided, however, that the ' 
lature may classify the county courts according to the population 
of the respective counties and fix the jurisdiction and salary of the 
judges thereof accordingly. 

SKC. 35. Xo judge of the Supreme or Circuit Courts shall 
1>e elected to any ot her than a judicial office, or be eligible thereto, 
during the term for which he was elected such judge. AH 
for either of them during sueh term for any elective office, excepl 
that of Judge of the Supreme Court, Circuit Court or County Court, 
given by the Legislature or the people, shall be void. 

SEC. 36. All judges or other officers of the Supreme, Circuit 
or County Courts provided for in this article shall hold their offices 
until their succ ivcly are elected or appointed and 

qualified. 

SKC. 37. All officers provided for in this article shall re 
tively reside in the district , count v. precinct, city or town for which 
they may be elected or appointed. Vacancies in the elective of- 



164 SOUTH DAKOTA DEBATES 1889 

fices provided for in this article shall be filled by appointment until 
the next general election, as follows: All judges of the Supreme, 
Circuit and County Courts, by the Governor. All other judicial 
and other officers by the County Board of the county where the 
vacancy occurs; in cases of police magistrates, by the municipality. 
SEC. 38. All processes shall run in the name of the "State 
of South Dakota". All prosecutions shall be carried on in the 
name of and by authority of the "State of South Dakota." 

THOS. STERLING, Chmn. 
H. A. HUMPHREY, 
CHAUNCEY L. WOOD, 
SAMUEL A. RAMSEY, 
H. W. EDDY. 
CARL SHERWOOD, 
S. B. VAN BUSKIRK, 
G. F. FELLOWS, 
D. CORSON. 

Mr. Van Buskirk: I move that that be made a special order 
for Thursday; the reason that I make it at that time is, because 
the report will not be printed and in the possession of the members 
tomorrow morning. (Motion seconded.) 

Mr. Cooper: I move an amendment, that it be made the 
special order for tomorrow. (Amendment seconded.) 

Mr. Davies: Have we not more work on hand now than 
we can do? 

Mr. Van Buskirk: I desire to suggest, I believe the rule is 
that where time is contained in a motion, the longest time is put 
first. 

The Chairman: The gentleman is right; those favoring the 
postponing the consideration of this report until Thursday will 
signify it by saying aye. The Chair is in doubt. 

The motion was lost by a rising vote of twenty-seven ayes 
to twenty-two nays. 

The President: Now the amendment will be in order that it 
be postponed until tomorrow afternoon. 

Mr. Atkinson: I move as a substitute that it be made a 
special order for Wednesday afternoon. 

A Voice: That is tomorrow! (Laughter). 
The amendment prevailed, and the consideration of the report 
was postponed until Wednesday. 

The Clerk reads the report of the Committee on Name, Boun- 
dary and Seat of Government, as follows: 



NAME AND BOUNDARY 165 

Sioux Falls, July 23, 1889. 
MR. PRESIDENT: 

Your Committee on Name, Boundaries and Seat of Govern- 
ment, to whom was referred Article I of the Sioux Falls Consti- 
tution, have considered the same and respectfully recommend that 
Section 1 of said Article I be amended by inserting the word 
"South" before the word Dakota, 

That Section 2 of said Article I be amended by inserting the 
word "South" before the word Dakota, and by striking out the 
words "Forty-sixth parallel of north latitude; thence west along 
the Forty-sixth Parallel of north latitude," and in lieu thereof 
insert the words, "Seventh Standard Parallel; thence west on the 
line of the Seventh Standard Parallel produced due west;" and 
therefore respectfully recommend the following as Article I of the 
Constitution, the same being in accordance with the "Omnibus 
Bill." 

ARTICLE I. 

NAME AND BOUNDARY. 

SECTION 1. The name of the State shall be South Dakota. 
SEC. 2. The boundaries of the State of South Dakota shall 
be as follows: Beginning at the point of intersection of the western 
boundary line of the State of Minnesota with the northern boundary 
line of the State of Iowa, and running thence northerly along the 
western boundary line of the State of Minnesota, to its intersection 
with the Seventh Standard Parallel; thence west on the line of 
the Seventh Standard Parallel produced due west to its intersec- 
tion with the Twenty-seventh Meridian of longitude west from 
Washington thence south on the Twenty-seventh Meridian of 
longitude west from Washington to its intersection with the 
northern boundary line of the State of Nebraska; thence easterly 
along the northern boundary line of the State of Nebraska to its 
intersection with the western boundary line of the State of Iowa; 
thence northerly along the western boundary line of the State of 
Iowa to its intersection with the -northern boundary line 'of the 
State of Iowa; thence east along the northern boundary line of 
the State of Iowa to the place of beginning. 

Respectfully submitted, 

M. P. STROUPE, Chmn. 
S. A. WHEELER, 
W. T. WILLIAMS, 
E. G. EDGERTON, 
WM. VAN EPS. 

Mr. Davies: I move that this report be made a special sub- 
ject for consideration tomorrow at the afternoon session. 
Motion seconded. 
Motion prevailed. 



166 



SOUTH DAKOTA DEBATES 1889 



The Clerk read the second report of the Committee on Name, 
Boundary and Seat of Government, as follows: 

SEC. 3. Should no place voted for at said election have a 
majority of all votes cast upon this question, the Governor shall 
issue his proclamation for an election to be held in the same manner 
at the next general election to choose between the two places 
having received the highest number of votes cast at the first elec- 
tion on this question. This election shall be conducted in the same 
manner as the first -election for the permanent seat of government , 
and the place receiving the majority of all votes cast upon this 
question shall be the permanent seat of government. 

M. P. STROUPE, Chmn. 
S. A. WHEELER, 
E. G. EDGERTON, 
W. T. WILLIAMS, 
WM. VAN EPS. 

Mr. Stroupe: I move that the consideration, of this report 
.be made the special order for tomorrow. 
Which motion prevailed. 

The President; I think that the report of the Legislative 
Committee is not in accordance with the rule ; if there is no objection, 
I will refer it back to the Committee to report it in form in which 
the rule provides. There being no objection, it will be so referred. 
The President: There being no business under the call of 
Report of Select Committees, or Consideration of Reports of Se- 
lect Committees or Presentation of Resolutions or Propositions 
Relating to the Constitution, we will proceed to the special order 
for the day; the first one is the Report of the Committee on Im- 
peachment and Removal from Office. The Clerk will read that 
report. 

Sioux Falls, Dak., July 19, 1889. 
MR. PRESIDENT: 

Your Committee on Legislative to whom was referred Article 
XVI, entitled, "Impeachment and Removal From Office", have 
considered the same and have compared said Article XVI with 
the Sioux Falls Constitution and the Act of Congress known as the 
"Omnibus Bill", and have instructed me to report the following 
as Article XVI of the Constitution and that the same is in accor- 
dance with the Sioux Falls Constitution and the change thereto 
authorized by the Omnibus Bill. 

ARTICLE XVI. 

SECTION 1. The House of Representatives shall have the sole 
power of impeachment. The concurrence of a majority of all 
members elected shall be necessary to an impeachment. 



IMPEACHMENTS 167 



SEC. 2. All impeachments shall be tried by the Senate. When 
sitting for that purpose the Senators shall be upon oath or affirma- 
tion to do justice according to law and evidence. No person shall 
be convicted without the concurrence of two-thirds of the members 
elected. When the Governor or Lieutenant Governor is on trial 
the presiding judge of the Supreme Court shall preside. 

SEC. 3. The Governor and other State and Judicial officers 
except County Judges, Justices of the Peace and Police Magis- 
trates, shall be liable to impeachment for drunkeness, crimes, cor- 
rupt conduct or malfeasance or misdemeanor in office, but judgment 
in such cases shall not extend further than to removal from office 
and disqualification to hold any office of trust or profit under the 
State. The person accused, whether convicted or acquitted, shall 
nevertheless be liable to indictment, trial judgment and punish- 
ment according to law. 

SEC. 4. All officers not liable to impeachment shall be subject 
to removal for misconduct, malfeasance, crime or misdemeanor 
in office or for drunkenness or gross incompetency in such manner 
as may be provided by law. 

SEC. 5. No officer shall exercise the duties of his office after 
he shall have been impeached and before his acquittal. 

SEC. 6. On trial of impeachment against the Governor the 
Lieutenant Governor shall not act as a member of the Court. 

SEC. 7. No person shall be tried on impeachment before he 
shall have been served with a copy thereof at least twenty days 
previous to the day set for trial. 

SEC. 8. No person shall be liable to impeachment twice for 
the same offense. 

A. B. McFARLAND, 

Chairman. 
S. A. RAMSEY, 
WM. COOK, 
R. F. Lyon. 

The President: What is the pleasure of the Convention with 
regard to the report of the Committee on Impeachment? 

Mr. Davies: I move that we adopt the report. (Motion 
seconded.) 

Mr. Hole: I wish again to suggest a point that was raised 
last week sometime, and that is, whether these reports have been 
compared with the Constitution itself; if they have not, I am op- 
posed to the motion ; I have noticed a great many errors have crept 
in ; I find the compared work of the Committee is very little better 
than the book they compared them with; sometimes not so good; 
it is well known by the members of the Convention that there are 
many mistakes, and if these are compared with the mistakes, the 



168 SOUTH DAKOTA DEBATES 1889 

second comparison is worse than the first- I think it is improper 
that these be reported as having been compared unless having 
been compared with the Constitution, not with the garbled copies. 

Mr. Huntley: I understand it is the duty of the Committee 
on Phraseology and Arrangement to compare every report with 
the copy which is in their hands and if there is any departure from 
that, it is part of their duty to make any such corrections of mis- 
takes as they may find. 

Mr. Hole: Then why in the name of honesty, is not the 
report, so reported; why do they compare them with the garbled 
copies and find that they compare favorably with them? We are 
stultifying ourselves in making these reports. I am objecting to 
the reports being made as having been compared with the original 
and found correct. I object. 

Mr. Willis: This 'Convention proceeds upon the assumption 
that these committees are honest. If these committees have not 
made these comparisons they ought to report. 

Mr. Stoddard: The way I understand it, these so-called 
articles constitute the Constitution itself, of 1885. I do not see 
any necessity, or any sense of each report coming in in this way; 
we have got only to compare it and find it in conformity with the 
Omnibus Bill and also with the Sioux Falls Constitution; we sup- 
pose that these articles are the Constitution itself; it is supposed 
that these printed copies constitute the Constitution and we have 
not each one taken the time to look through the engrossed copy; 
that is in the hands of the President, we have not had an oppor- 
tunity, we remember too, undoubtedly it will go to the Committee 
on Phraseology and it will be looked after there ; all that we report 
is that we find such and such an article a part of the Constitution 
and then it goes to the other committees. 

Mr. Matson: I suggest we are becoming a little too critical; 
I do not understand that we, any of us, have seen the copy of the 
original Constitution, or have had it before us when we voted upon 
the Sioux Falls Constitution. 

Mr. Young: I do not think that the gentleman was talking 
advisedly, that objected, when he used the expression, "garbled 
copy" of the Constitution. These committees were comparing 
these reports by the corrected copy, made by the special Committee 
on Errata. I do not think he spoke authoritatively when he says 



LIMITATIONS OF ENABLING ACT 169 

these reports have been compared with garbled copies; they have 
been compared with the corrected copy, I think in every instance. 

Mr. Hole: I do not want to raise a breeze on this; I merely 
wanted to call attention to what seemed to me a serious matter. 
We were making reports and certifying that these are correct and 
there has not been one report yet that has gone in, or but very few 
as I am informed by the clerks but what have been found to be 
wrong though all certified by the Chairman of the Committee. That 
has been shown by every report here, and that every one of them, 
or nearly all have been found to be wrong. Our Committee have 
not made a report and we have not been in a position to stultify 
ourselves at all : I merely want to raise this question ; we ought to 
correct that certificate that is made, the report that is made; I 
think these will have to be compared with the original copy ; must 
be. I think the record should be made to agree with the facts. 

Mr. Hartley: I call attention to the next article; Article 
VII is reported as being made correct, while it is not; the very next 
Article reported by the Committee as being correct is not correct. 
That is the reason that we call attention to the fact that they are 
reporting matters which are not correct; we are making up a record 
that is not correct. There is one copy which reads one way, and 
the other printed one which reads differently ; some reports follow 
one and some reports follow another; in many cases they are not 
following what is the Constitution. Judge Edgerton has either 
refused or failed to produce the original copy here. I think we 
are entitled to the possession of the Constitution we are working 
on; we ought to have it here; so that when any of these questions 
arise we can turn to it immediately. With regard to what the 
gentleman from Lake county (Mr. Young) said in law, a copy that 
is a copy would not be received in court and the fact that they 
compared the report that they are producing here with another 
copy is no evidence that it is correct. We should have the Consti- 
tution here every day through working hours now. 

Mr. Sterling: I hardly think that any of the errors that may 
be found in any of these copies are any more than what may IK- 
termed clerical or typographical errors. I think these errors omu- 
properly under the notice of the Committee on Phraseology and 
Arrangement and whether the different Committees compare their 
reports with one copy or another copy of the Constitution, I think 



170 SOUTH DAKOTA DEBATES 1889 

it will be found to be substantially correct. And the only inac- 
curacies will be in the nature of typographical or clerical errors 
and it is peculiarly the business of that Committee to correct errors 
of that kind. They will not find those errors alone in these copies 
which we use ; if I understand it rightly they will be found in the 
original Constitution itself; I think the duties of that Committee 
will extend to what is plainly a clerical error and that they will 
not submit their report until they have made such comparison. 
I think these reports must be taken as substantially correct, and 
that when the committee certifies that they have compared them 
and say these copies are copies of the different articles that they 
have examined that we must so take it, until the Committee on 
Arrangement and Phraseology take it and pass upon the simple 
clerical errors. 

Mr. Hartley: I think after we have called the attention of 
the Committees to it that they have acknowledged that they have 
made errors and used copies that were not correct. 

(Calls of question from different portions of the house.) 

The motion reaching a vote was adopted and the report of the 
Committee on Impeachment and Removal from Office was declared 
adopted. 

The Chairman: I will now state for the information of the 
Convention, I have been unable to get to work with the Committee 
-but made arrangements this morning by which the Committee 
on Arrangement and Phraseology will take these reports and 
compare them with the original Constitution and see if there are 
any errors ; as soon as Judge Edgerton returns and we have access 
to the original Constitution, that Committee will commence its 
work; I presume it will be able to do so tomorrow; I don't know 
when the Judge expects to return. 

The Chairman: The next business to come before the. Con- 
vention will be the consideration of a report of the Committee on 
Elections and Right of Suffrage ; there is a little error in that report ; 
it calls the attention of the Convention to the fact that there is 
apparently a clerical error in Section 9. I will state to the members 
of the Convention that if they have not the printed Journal of the 
16th day's proceedings before them, that we have extra copies 
here. 

Mr. Fellows: I move that the report of the Committee be 



RIGHT TO VOTE 171 



amended by putting the word "school" after the word "for" and 
before the word "purposes" as found in the third line from the 
bottom of page three of the 16th day's proceedings. 

The Clerk reads report of Committee on Elections and Right 
of Suffrage. 
MR. PRESIDENT: 

The Committee to whom was referred Article VII, entitled 
"Election and Right of Suffrage", respectfully report, that we find 
the same in conformity with the Enabling Act, and recommend 
that no alterations be made. 

ARTICLE VIL 

ELECTIONS AND RIGHT OF SUFFRAGE. 

SECTION 1. Every male person resident of this State who 
shall be of the age of twenty-one years and upwards, not otherwise 
disqualified, belonging to either of the following classes, who shall 
be a qualified elector under the laws of the Territory of Dakota at 
the date of the ratification of this Constitution by the people, or 
who shall have resided in the United States one year, in this State 
six months, in the county thirty days and in the election precinct 
where he offers his vote ten days next preceding any election, shall 
be deemed a qualified elector at such election. 

FIRST: Citizens of the United States. 

SECOND: Persons of foreign birth who shall have declared 
their intention to become citizens conformably to the laws of the 
United States upon the subject of naturalization. 

SEC. 2. The Legislature shall at its first session after the 
admission of the "State into the Union, submit to a vote of the 
electors of the State the following question to be voted upon at 
the next general election held thereafter, namely: "Shall the 
word 'male' be stricken from the article of the Constitution relating 
to election and the right of suffrage." If a majority of the votes cast 
upon that question are in favor of striking out the w r ord "male", 
it shall be stricken out and there shall thereafter be no distinction 
between males and females in the exercise of the right of suffrage 
at any election in this State. 

SEC. 3. All votes shall be by ballot, but the Legislature 
may provide for numbering ballots for the purpose of preventing 
and detecting fraud. 

SEC. 4. All general elections shall be biennial. 

SEC. 5. Electors shall in all cases except treason, felony or 
breach of peace, be privileged from arrest during their attendance 
at elections and in going to and returning from the same. And 
no elector shall be obliged to do military duty on the days of elec- 
tions, except in time of war or public danger. 

SEC. 6. No elector shall be deemed to have lost his residence 
in this State by reason of his absence on business of the United 



172 SOUTH DAKOTA DEBATES 1889 

States or of this State, or in the military or naval service of the 
United States. 

SEC. 7. No soldier, seaman or marine in the army or navy 
of the United States shall be deemed a resident of this State in 
consequence of being stationed therein. 

SEC. 8. No person under guardianship, non compos mentis 
or insane, shall be qualified to vote at any election, nor shall any 
person convicted of treason or felony be qualified to vote at any 
election unless restored to civil rights. 

SEC. 9. Any woman having the qualifications enumerated 
in Section 1 of this article, as to age, residence, and citizenship, 
and including those now qualified by the laws of the Territory, 
may vote at any election held solely for school purposes, and may 
hold any office in this State, except as otherwise provided for 
in this Constitution. 

WM. STODDARD, 
WM. COOK, 
C. R. WESCOTT. 
JOHN SCOLLARD, 
J. F. WHITLOCK, 
HARRY T. CRAIG. 

Which motion prevailed. 

The Chairman: The question now recurrs upon the question 
to adopt the report of the Committee on Elections and Right of 
Suffrage as amended. 

Which motion prevailed and the report of said Committee 
was declared adopted. 

The Chairman: The next report is a report of the Committee 
on Federal Relations and Ordinance. 

The Clerk read'said report as follows: 
MR. PRESIDENT: 

Your Committee on Federal Relations, to which the proposi- 
tion or resolution presented by Mr. Boucher, relating to compact 
with the United States, was referred, would respectfully report 
that we have had the same under consideration and have decided 
to report herewith "An Ordinance irrevocable without the consent 
of the United States and the people of this State, relating to Re- 
ligious Toleration, Public Lands, Taxation of Lands, Debts of the 
Territory of Dakota and Public Schools", and would recommend 
the passage of said Ordinance. 

Your Committee would further report that we have had under 
consideration Article XXII of the Sioux Falls Constitution and 
find the same is defective because it does not contain all the por- 
visions required by the Omnibus bill and we would therefore recom- 
mend that the said Article XXII be stricken out of the Constitution. 



COMPACT WITH UNITED STATES 173 

We would further report that the said ordinance contains all 
the provisions of said Article XXII and such additional provisions, 
not contained in said Article XXII as are required by the Omnibus 
Bill, so called, or Enabling Act. 
AN ORDINANCE, irrevocable without the consent of the United 

States and the people of this State, relating to Religious 

Toleration, Public Lands, Taxation of Lands, Debts of the 

Territory of Dakota and Public Schools. 

Be it ordained by the Constitutional Convention of the State 
of South Dakota: 

FIRST: That perfect toleration of religious sentiment shall 
be secured, and that no inhabitant of this State shall ever be mo- 
lested in person or property on account of his or her mode of re- 
ligious worship. 

SECOND: That the people inhabiting this State do agree 
and declare that they forever disclaim all right and title to the 
unappropriated public lands lying within the boundaries thereof, 
and to all lands lying within said limits owned or held by any 
Indian or Indian Tribes; and until the title thereto shall have been 
extinguished by the United States, the same shall be and remain 
subject to the disposition of the United States, and the said Indian 
lands shall remain under the absolute jurisdiction and control of 
the Congress of the United States; that the lands belonging to cit- 
izens of the United States residing without this State shall never 
be taxed at a higher rate than the lands belonging to residents of 
this State; that no taxes shall be imposed, by this State on lands 
or property therein belonging to, or which may hereafter be pur- 
chased by the United States or reserved for its use. But nothing 
herein shall preclude this State from taxing, as other lands are 
taxed, any lands owned or held by any Indian who has severed his 
tribal relations, and has obtained from the United States or from 
any other person a title thereto by patent or other grant, save and 
except such lands as have been or may be granted to any Indian 
or Indians under any act of Congress containing a provision ex- 
empting the lands thus granted from taxation but that all such 
ands shall be exempt from taxation by this State so long and to 
such extent as such act of Congress may prescribe. 

THIRD: That the State of South Dakota shall assume and 
pay that portion of the debts and liabilities of the Territory of 
Dakota which the joint commission appointed by the Constitu- 
tional Conventions of North Dakota and South Dakota have ad- 
justed and agreed upon as the just proportion of said debt and 
liabilities to be assumed and paid by South Dakota. The agree- 
ment reached respecting said debts and liabilities is incorporated 
in the Constitution of this State and this State obligates itself to 
pay its proportion of such debts and liabilities, as therein specified, 
the same as if they had been created bv this State. 



174 SOUTH DAKOTA DEBATES 1889 

FOURTH: That provision shall be made for the establishment 
and maintenance of systems of public schools, which shall be 
open to all children of this State and free from sectarian control. 

FIFTH: That this Ordinance shall be and remain irrevocable 
without the consent of the United States and the people of this 
State. 

W. H. MURPHY, 

C. A. MOULTON, 

C. G. SHERV OOD, 
C. J. B. HARRIS, 

Mr. Dickinson: Is this Ordinance an article of the Consti- 
tution? It seems to me it ought to be passed through the hands 
of the Schedule and Ordinance Committee; I move that it be re- 
ferred to that Committee. 

Mr. Jolley: This is a very peculiar article of the Constitu- 
tion; I do not think that this Committee has used proper caie- 
So far as the suggestion made by the gentleman from Day (Mr. 
Dickinson) is concerned, there is such a provision in the Schedule. 
And here is the objection that I have; it gives all lands to the 
Indian and Indian Tribes and puts that land under the jurisdiction 
of the United States, in other words if there is any Indian owning 
any land in the Territory of Dakota, it cannot be used for public 
purposes ; you cannot run a highway across it only by going to 
Congress ; the point I wish to call the attention of the Convention 
to is this Ordinance irrevocable without the consent of the United 
States and the people of this State. The inquiry in my mind is 
this; if you pass such an ordinance as this and put it in the Con- 
stitution of South Dakota, you fix it so the only way it can be re- 
voked so far as the State of South Dakota is concerned and so far 
as the United States is concerned is by act of Congress; I don't 
know but what we would have to call another Constitutional Con- 
vention in order to change this. 

The Chairman: Is there any second to the motion of the 
gentleman from Da}- ? 

Mr. Young: I second the motion. 

The motion prevailed and the report of the Committee on 
Federal relations was referred to the Committee on Schedule and 
Ordinance. 

The Chairman: The next order of business is consideration 
of the memorial to Congress with relation to the securing a com- 



GEOLOGICAL SURVEYS 175 

mission for the purpose of making a geological and hydrographic 
survey of the State. Clerk reads the report as follows 
MR. PRESIDENT: 

Your Committee on Federal Relations to which was referred 
the re-solution relating to a memorial to Congress for the appoint- 
ment of a commission for the purpose of making a geological and 
hydrographic survey of the State would respectfully report that 
we have had the same under consideration and have decided to 
report the accompanying memorial and recommend its passage. 
A MEMORIAL to the Congress of the United States requesting 

the appointment of a Commission for the purpose of making 

a geological and hydrographic survey of the State. 

To the Congress of the United States: 

The Constitutional Convention of the State of South Dakota, 
duly assembled, would respectfully represent to your honorable 
body that it has been demonstrated that within the limits of Scuth 
Dakota there exists what is known as an artesian basin or system, 
but that its extent has net been fully determined. And that a 
desire is being generally expressed by the people of South Dakota 
that the matter be investigated and the extent of the system fully 
determined and its availability for the purposes of agriculture and 
manufactures be determined. 

Now, therefore, the said Convention would respectfully 
memorialize your honorable body and request you to appoint at 
'the earliest possible time a Commission for the purpose of making 
and with power to make a thorough and complete geological and 
hydrographic survey of the State, including mineralogical forma- 
tion of 1 lie Black Hills and the artesian basin of South Dakota, 
and that you make the necessary appropriations therefor. 

W. H. MURPHY, 
C. A. HOULTON. 

C. G. SilKKWOOD, 

C. J. B. HARRIS. 

The Chairman: What is the pleasure of the Convention in 
regard to this memorial? 

Mr. Davies: I move you, Mr. President, that w r e adopt this 
memorial. 

Motion scvonded. 

Mr. Dickinson: I would ask if there does not already exist 
a geological survey of this section of the Tinted States, and further 
I would inquire whether or not, after we are admitted, as a state, 
the government would not simply refer it back to us, and say, 
make such surveys as you desire. 

Mr. Hartley: My understanding is that when we become a 



176 SOUTH DAKOTA DEBATES 1889 

state these matters will have to be attended to by ourselves ; the 
United States make these surveys for the territories and not for 
the states. 

Mr. Clough: I recall being on a train crossing the State of 
Wisconsin from Madison to Janesville and meeting a gentleman 
who said he represented the United States Surveying Service; he 
said he was sent out by the Smithsonian Institute at the expense 
of the United States, to a certain section of the country I spent 
the larger part of the day with him and I understood from him 
that the government through the Smithsonian Institute carries 
on these surveys. I know in the State University we have been 
discussing this subject and we have the understanding that while 
we will do something ourselves as a state, the United States Govern- 
ment through the Smithsonian Institute will carry on these surveys 
such as we ask today. 

Mr. Davies: In view of the importance of this question it 
can do no harm making the application to Congress ; I do not think 
there is any question about the authority of the United States to 
make this survey ; this irrigation subject and the matter of the 
artesian well system is an important subject. And the eyes of the 
people of this United States are upon that question and if there is 
anything we can do to help ourselves and our sister states in this 
matter of irrigation let us do it ; we certainly can try and no harm 
can be done and perhaps great good will result. 

The matter under consideration reaching a vote the motion 
prevailed and the memorial was declared adopted. 

The Chairman: The next is the report of the Committee on 
Education and School Lands. With regard to that report I would 
say, I believe Mr. Humphrey is Acting Chairman and when he 
went away he asked me to have that held open until his return; 
I will suggest further that that is a very important report. If I 
was on the floor of the Convention I would ask that the Convention 
hold it over until tomorrow. 

Mr. Huntley: I move that the consideration of this report 
be postponed until tomorrow. 

The motion was duly seconded and adopted. 

The Clerk read the report of the Committee on State Insti- 
tutions and Public Buildings. 



REPORT OF COMMITTEE 177 

Sioux Falls. South Dakota, July 18, 1889. 
MR. PRESIDENT: 

Your Committee on State Institutions and Public Buildings, 
to whom was referred Article XIV, entitled, "State Institutions" 
have considered the same and compared said Article XIV with the 
Sioux Falls Constitution and the Act of Congress known as the 
"Omnibus Bill" and have instructed me to report the following 
as Article XIV of the Constitution and that the same is in ac- 
cordance with the Sioux Falls Constitution andthechangesthereto 
authorized by the Omnibus Bill. The insertion of the word 
"South" before Dakota in Section 1 comprises all the changes 
made. 

ARTICLE XIV. 

STATE INSTITUTIONS. 

SECTION. 1. The charitable and penal institutions of the 
State of South Dakota shall consist of a penitentiary, insane hos- 
pital, a school for the deaf and dumb, a school for the bilnd and a 
reform school. 

SEC. 2. The State institutions provided for in the preceding 
section shall be under the control of a State Board of Charities 
and Corrections, under such rules and restrictions as the Legisla- 
ture shall provide; such Board to consist of not to exceed five 
members, to be appointed by the Governor and confirmed by the 
Senate, and whose compensation shall be fixed by law. 

EC. 3. The State University, the Agricultural College, the 
Normal Schools, and other educational institutions that may be 
sustained either wholly or in part by the State shall be under the 
control of a board of nine members,. appointed by the Governor 
and confirmed by the Senate, to be designated the Regents of Ed- 
ucation. They shall hold their office for six years, three retiring 
every second year 

The Regents, in connection with the faculty of each institu- 
tion shall fix the course of study in the same. 

The compensation of the Regents shall be fixed by the Legis- 
lature. 

SEC. 4. The Regents shall appoint a board of five members 
for each institution under their control, to be designated the Board 
of Trustees. They shall hold office for five years, one member re- 
tiring annually. The Trustees of each institution shall appoint 
the faculty of the same and shall provide for the current manage- 
ment of the institution but all appointments and removals must 
have the approval of the Regents to be valid. The Trustees of 
the several institutions shall receive no compensation for their 
services, but they shall be reimbursed for all expenses incurred 
in the discharge of their duties, upon presenting an itemized ac- 
count of the same to the proper officer. Kach Hoard of Trustees 



178 SOUTH DAKOTA DEBATES, 1889. 

at its first meeting shall decide by lot the order in which its members 

shall retire from office. 

SEC. 5. The Legislature shall provide that the science of 

mining and metallurgy be taught in at least one institution of 

learning under the patronage of the State. 

F. G. YOUNG, Chmn. 
WM. VAN EPS, 
C. G. HARTLEY, 
J. DOWNING, 
CHAUNCEY L. WOOD, 
C. BUECHLER, 
R. A. SMITH, 
J. F. WOOD. 

The Chairman: What is the pleasure of the Convention in 
regard to this report? 

Mr. Wescott: I move that the report be adopted. 
Motion was duly seconded and by vote of the Convention 
was declared adopted. 

The Chairman: The next report is the report of the Committee 
on Exemptions. 

The Clerk read said report as follows: 

Sioux Falls, Dakota, July 18, 1889. 
MR. PRESIDENT:.. . 

Your Committee on Exemptions to whom was referred Section 
4, Article XXI, entitled, "Exemptions", have considered the same 
and have compared said Section 4, in Article XXI with the Sioux 
Falls Constitution and the Act of Congress known as the "Omnibus 
Bill" and have instructed me to report the following as Section 
4, Article XXI of the Constitution and that the same is in accordance 
with the Sioux Falls Constitution and the changes thereto author- 
ized by the "Omnibus Bill, without any amendments. 

SEC. 4. EXEMPTIONS. The right of the debtor to enjoy the 
comforts and necessaries of life shall be recognized by wholesome 
laws exempting from forced sale a homestead, the value of which 
shall be limited and denned by law to all heads of families, and a 
reasonable amount of personal property, the kind and value of 
which to be fixed by general laws. 

C. BUECHLER, Chmn. 
J. A* FOWLES, 
S. S. PECK, 
GEO. H. CULVER, 
GEO. C. COOPER, 
S. D. JEFFRIES, 
M. R. HENINGER, 
C. G. COATS. 



BANKING AND CURRENCY 179 

Mr. Sterling: I move the adoption of the report. 

Motion duly seconded and by vote of the Convention the re- 
port was adopted. 

The Clerk reads the report of the Committee on Banking and 
Currency. 

Sioux Falls, Dakota, July 19, 1889. 
MR. PRESIDENT: 

Your Committee on Banking and Currency to whom was re- 
ferred Article XVIII, entitled, "Banking and Currency," have 
considered the same and have compared said Article XVIII with 
the Sioux Falls Constitution and the Act of Congress known as 
the "Omnibus Bill", and have instructed me to report the fol- 
lowing as Article XVIII of the Constitution and that the same is 
in accordance with the Sioux Falls Constituticn and the changes 
thereto authorized by the Omnibus Bill. 
ARTICLE XVIII. 

BANKING AND CURRENCY. 

SECTION 1. If a general banking law shall be enacted it shall 
provide for the registry and countersigning by an officer of this 
State of all bill or paper credit designed to circulate as money, and 
require security to the full amount thereof, to be deposited with 
the State Treasurer, in the approved securities of the State or of 
the United States to be rated at ten per cent., below their par 
value, and in case of their depreciation the deficiency shall be made 
good by depositing additional securities. 

SEC. 2. Every bank, banking company or corporation shall 
be required to cease all banking operations within twenty years 
from the time of its organization, and promptly thereafter close 
its business, but shall have corporate capacity to sue and be sued 
until its business is fully closed; but the Legislature may provide 
by general law for the reorganization of such banks. 

SEC. 3. The shareholders or stockholders of any banking 
corporation shall be held individually responsible and liable for 
all contracts, debts and engagements of such corporation to the 
extent of the amount of their stock therein, at the par value thereof, 
in addition to the amount invested in such share of stock and such 
individual liability shall continue for one year after any transfer or 
sale of stock by any stockholder or stockholders. 

J. G. DAVIS, Chmn. 
S. A. RAMSEY, 
S. B. MCFARLAND, 

S. F. HUNTLEY, 
C. J. BUECHLER, 
C. S. GlFFORD. 

Mr. Young: I move the adoption of the report. 
Motion duly seconded. 



180 SOUTH DAKOTA DEBATES 1889 

Mr. Hartley: If you will excuse me, I notice that in 1885, 
was submitted Sec. 2, a section that I do not clearly understand; 
is it intended to relate to all banks? 

The Chairman: I cannot answer that. 

Mr. Hartley: If it is intended to reach all banks we are 
reaching too far; if it is intended to what we call State Banks it 
is all right. 

Mr. Davies: The Omnibus Bill does not permit us to know 
anything about it; it is simply a question of changes. 

The motion to adopt prevailed. 

The Clerk next reads the report of the Committee on Seal 
and Coat of Arms as follows: 

Sioux Falls, Dakota, July 19, 1889. 
MR. PRESIDENT: 

Your Committee on Seal and Coat of Arms, to whom was re- 
ferred Section 1, of Article XXI of the Constitution, entitled, 
"Seal and Coat of Arms", -having had the same under careful con- 
sideration, beg leave to report the following changes necessary to 
comply with the provisions of the Omnibus Enabling Act, to-wit: 
To insert the word "South" before the word Dakota in the two in- 
stances where the words "State of Dakota" appear; and we here- 
with report Section 1, Article XXI, with the change aforesaid in- 
corporated therein, viz: 

ARTICLE XXI. 

MISCELLANEOUS. 

SECTION 1. SEAL AND COAT OF ARMS. The design of the 
great seal of South Dakota shall be as follows: A circle within 
which shall appear in the left foreground a smelting furnace and 
other features of mining work. In the left background a range of 
hills. In the right foreground a farmer at his plow. In the right 
background a herd of cattle and a field of corn. Between the two 
parts thus described shall appear a river bearing a steamboat. 
Properly divided between the upper and lower edges of the circle 
shall appear the legend, "Under God the People Rule", which 
shall be the motto of the State of South Dakota. Exterior to this 
circle and within a circumscribed circle shall appear, in the upper 
part the words "State of South Dakota". In the lower part the 
words, "Great Seal", and the date in Arabic numerals of the year 
in which the State be admitted to the Union. 

And respectfully recommend the adoption of the change and 
the submission of the Article as amended. 

C. A. HOULTON, 
| H. A. HUMPHREY, 

IJOHN SCOLLARD, 

J. F. WOOD. 



OATH OF OFFICE 181 



The Chairman: What is the pleasure of the Convention in 
regard to the report of the Committee on Seal ? 
A Voice: I move its adoption. 

Said motion being submitted to a vote of the Convention 
was duly adopted. 

The Chairman: The next report is the report of the Committee 
on Miscellaneous Subjects. 

The report was read by the Clerk as follows: 

Sioux Falls, Dakota, July 18, 1888. 
MR. PRESIDENT: 

Your Committee on Miscellaneous Subjects, to whom was re- 
ferred Article XXI, Section 3, beg leave to report that in our opinion 
no change is necessary in said section, which is hereto attached. 

SEC. 3. OATH OF OFFICE. Every person elected or appointed 
to any office in this State, except such inferior officers asmaybe 
by law exempted, shall, before entering upon the duties thereof, 
take an oath or affirmation to support the Constitution of the 
United States and of this State, and faithfully to discharge the 
duties of his office. 

H. W. EDDY, Chmn. 
W. L. WILLIAMS, 
WM. COOK, 
WM. STODDARD, 
SANFORD PARKER, 
C. G. HARTLEY! 

The Chairman: What is the pleasure of the Convention with 
regard to this report ? 

Mr. Wood: I move that the report be adopted. 

Motion seconded and reaching a vote, was duly adopted and 
so declared by the Chair. 

The Chairman: The next report is the report of the Com- 
mittee on Executive and Administrative. 

The Clerk read the report as follows: 

Sioux Falls, Dakota, July 18, 1889. 
MR. PRESIDENT: 

Your Committee on Article IV of the Sioux Falls Constitution, 
"Executive and Administrative", have considered the same and 
have compared said Article IV with the Act of Congress known as 
the "Omnibus Bill", and have instructed me to report the following 
as Article IV of the Constitution, and that the same is in accordance 
with the Sioux Falls Constitution and the Omnibus Bill. 

C. R. WESCOTT. 
Chairman of Committee. 



182 SOUTH DAKOTA DEBATES 1889 

ARTICLE IV. 

EXECUTIVE DEPARTMENT. 

SECTION 1. The executive power shall be vested in the Gov- 
ernor who shall hold his office for two years ; a Lieutenant Governor 
who shall be elected at the same time and for the same term. 

SEC. 2. No person shall be eligible to the office of Governor 
or Lieutenant Governor except a citizen of the United States and 
a qualified elector of the State, who shall have attained the age of 
thirty years, and who shall have resided two years next preceding 
the election within the State or Territory, nor shall he be eligible 
to any other office during the term for which he shall have been 
elected. 

SEC. 3. The Governor and Lieutenant Governor shall be 
elected by the qualified voters of the State at the time and place 
of choosing members of the Legislature. The persons respectively 
having the highest number of votes for Governor and Lieutenant 
Governor shall be elected, but if two or more shall have an equal 
and highest number of votes for Governor or Lieutenant Governor, 
the two houses of the Legislature at its next regular session shall 
forthwith, by joint ballot, choose one of such persons for said 
office. The returns of the election for Governor and Lieutenant 
Governor shall be made in such a manner as shall be prescribed by 
law. 

SEC. 4. 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 insurrection and repel in- 
vasion. He shall have power to convene the Legislature on ex- 
traordinary occasions. He shall at the commencement of each 
session communicate to the Legislature by message, information of 
the condition of the State, and shall recommend such measures 
as he shall deem expedient. He shall transact all necessary business 
with the officers of the government, civil and military. He shall 
expedite all such measures as may be resolved upon by the Legis- 
lature and shall take care that the laws be faithfully executed. 

SEC. 5. The Governor shall have the power to remit fines and 
forfeitures, to grant reprieves, commutations and pardons after 
conviction for all offenses except treason and cases of impeachment ; 
provided, that in all cases where the sentence of the court is capital 
punishment, imprisonment for life or for a longer term than two 
years, or a fine exceeding $200 no pardon shall be granted, sentence 
commuted or fine remitted except upon the recommendation in writ- 
ingof aboardof pardons consisting of the presiding judge, Secretary 
of State and Attorney General, after full hearing in open session, and 
such recommendation, with the reasons therefor, shall be filed in 
the office of the secretary of State; but the Legislature may by law 
in all cases regulate the manner in which the remission of fines, 



BRIBERY 183 



pardons, commutations, and reprieves may be applied for. Upon 
conviction for treason he shall have the power to suspend the 
execution of the sentence until the case shall be reported to the 
Legislature at its next regular session, when the Legislature shall 
either pardon or commute the sentence, direct the execution of 
the sentence or grant a further reprieve. He shall communicate 
to the Legislature at each regular session, each case of remission 
of fine, reprieve, commutation or pardon granted by him in the 
cases in which he is authorized to act without the recommendation 
of the said Board of Pardons, stating the name of the convict, the 
crime of which he is convicted, the sentence and its date, and the 
date of the remission, commutation, pardon or reprieve, with his 
reasons for granting the same. 

SEC. 6. In case of death, impeachment, resignation, failure 
to qualify, absence from the State, removal from office, or other 
disability of the Governor, the powers and duties of the office for 
the residue of the term, or until he shall be acquitted, or the dis- 
ability removed, shall devolve upon the Lieutenant Governor. 

SEC. 7. The Lieutenant Governor shall be President of the 
Senate, but shall have only a casting vote therein. If, during a 
vacancy in the office of Governor, the Lieutenant Governor shall 
be impeached, displaced, resign or die, or from mental or physical 
disease or otherwise become incapable of performing the duties 
of his office, the Secrteary of State, shall act as Governor until 
the vacancy shall be filled or the disability removed. 

SEC. 8. When any office shall from any cause become vacant 
and no mode is provided by the Constitution or law for filling such 
vacancy, the Governor shall have the power to fill such vacancy 
by appointment. 

SEC. 9. Every bill which shall have passed the Legislature 
shall, before it becomes a law, be presented to the Governor. If 
he approve he shall sign it, but if not, he shall return it with his 
objection to the house in which it originated, which shall enter 
the objection at large upon the Journal and proceed to re- 
consider it. If, after such reconsideration, two-thirds of the mem- 
bers present shall agree to pass the bill, 'it shall be sent, together 
with the objection, to the other house, by which it shall likewise 
be reconsidered, and if it be approved by two-thirds of the members 
present , it shall become a law ; but in all such cases the vote of both 
houses shall be determined by the yeas and nays, and the names 
of the members voting for and against the bill shall be entered upon 
the Journal of each house respectively. If any bill shall not be 
returned by the Governor within three days (Sundays except ed) af- 
ter it shall have been presented to him, the same shall be a law, 
unless the Legislature shall by its adjournment prevent its re-- 
turn; in which case it shall be filed, with his objection, in the office 



184 SOUTH DAKOTA DEBATES 1889 

of the Secretary of State, within ten days after such adjournment, 
or become a law. 

SEC. 10. The Governor shall have power to disapprove of 
any item or items of any bill making appropriations of money 
embracing distinct items and parts or parts of the bill approved 
shall be a law, and the item or items disapproved shall be void, 
unless enacted in manner following: If the Legislature be in ses- 
sion he shall transmit to the House in which the bill originated a 
copy of the item or items thereof disapproved, together with his 
objection thereto, and the items objected to shall be separately 
reconsidered, and each item shall then take the same course as is 

prescribed for the passage of bills over the executive veto. 

SEC. 11. Any Governor of this State who asks, receives or 
agrees to receive any bribe upon any "understanding that his of- 
ficial opinion, judgment or action shall be influenced thereby, or 
who gives, or offers, or promises his official influence in consideration 
that any member of the Legislature shall give his official vote or 
influence on any particular side of any question or matter upon which 
he may be required to act in his official capacity, or who menaces any 
member by the threatened use of his veto power or who offers or 
promises any member that he, the said Governor, will appoint any 
particular person or persons to any office created or thereafter to 
be created ; in consideration that any member shall give his official 
vote or influence on any matter pending or thereafter to be intro- 
duced into either House of the said Legislature, or who threatens any 
member that he, the said Governor, will remove any person or 
persons from any office or position with intent to in any manner 
influence the official action of said members, shall be punished in 
the manner now, or that may hereafter be provided by law, and 
upon conviction thereon shall forfeit all right to hold or exercise 
any office of trust or honor in this state. 

SEC. 12. There shall be chosen by the qualified electors 
of the State at the times and places of choosing members of the 
Legislature, a Secretary of State, Auditor, Treasurer, Superin- 
tendent of Public Instruction, Commissioner of School and Public 
Lands, and Attorney General, who shall severally hold their offices 
for the term of two years, but no person shall be eligible to the 
office of Treasurer for more than two terms consecutively. They 
shall respectively keep their offices at the seat of government. 

SEC. 13. The powers and duties of the Secretary of State, 
Auditor, Treasurer, Superintendent of Pubilc Instruction, Com- 
missioner of School and Public Lands, and Attorney General shall 
be prescribed by law. 

C. R. WESCOTT, 

Chairman of Executive and Administrative Com. 
Mr. Jolley: I move its adoption. 



CONSIDERATION OF REPORTS 185 

Motion duly seconded by Mr. Young. 

Motion prevailed and the report was declared adopted. 

Clerk reads the report of Committee on Manufactures and 
Agriculture as follows: 
To THE PRESIDENT OF THE CONSTITUTIONAL CONVENTION SOUTH 

DAKOTA: 

We, the undersigned Committee on Manufactures and Agri- 
culture, do hereby respectfully report that on careful examination 
we find that no changes are required in those parts of the Consti- 
tution, submitted to our inspection, in order to comply with the 
provisions of tht Enabling Act passed by the Congress of the 
United States. 

Sioux Falls. July 19, 1889. 

T.W. P. LEE, 
J. F. WHITLOCK, 
R. A. SMITH, 

T. F. DlEFENDORF, 
C. S. GlFFORD, 

E. G. EDGERTON. 
C. R. WESCOTT, 
R. F. LYONS, 

Mr. Willis: I would like to ask the Chairman of that Com- 
mittee for the chapter, verse and page where that report is; I am 
in favor of the Preamble. 

Mr. Jeffries: I move that it be referred back to the Committee 
for amendment, to comply with the report of the Committee on 
Rules. 

Mr. Davies: I move that it be referred to the Committee 
on Miscellaneous Subjects. 

Mr. Young: I move its adoption as read. 

Motion duly seconded. 

Mr. Willis : What would be the number of the Article ? 

Mr. Fellows: I move that we postpone the considerat ; on of 
that report. 

Mr. Lee: I wish to make a remark. I was very careful re- 
garding this Constitution; I went all through Spink County saving 
to my constituents that it was the best Constitution I ever read; 
I dislike very much to go back on my record. When I found out 
there was no such department here, I disliked that very mu-. h. 
inasmuch as that is a very important question. The hand that 
rocks our cradles rocks the world and the hand that holds the 
plow, feeds the occupants of the cradles I wish to say right here 



186 SOUTH DAKOTA DEBATES 1889 

in public that this Convention made a mistake in appointing such 
a Committee, but I think we had better let it go; it looks well on 
paper and does no harm. 

The report coming to a vote, was adopted, amidst laughter. 

The Chairman: The next is the consideration of the report 
of the Committee on Military affairs. 

The report was read by the Clerk, as follows: 

Sioux Falls, Dakota, July 18, 1889. 
MR. PRESIDENT: 

Your Committee on Military Affairs to whom was referred 
Article No. XV, entitled "Militia", have considered the same and 
have compared said Article No. XV with the Sioux Falls Consti- 
tution and the Act of Congress, known as the Omnibus Bill, and 
we report the following as article XV of the Constitution and that 
the same is in accordance with the Sioux Falls Constitution, and 
the changes thereto authorized by the Omnibus Bill, viz: The 
name of South Dakota in Sections One and Six in lieu of Dakota. 

SECTION 1. The militia of the State of South Dakota, shall 
consist of all able-bodied male persons residing in the State, be- 
tween the ages of 18 and 45 years, except such persons as now are 
or hereafter may be exempted by the laws of the United States 
or of this State. 

SEC. 2. The Legislature shall provide by the law for the 
enrollment, uniforms, equipment and discipline of the militia 
and the establishment of voulnteer and such other organizations, 
or both, as may be deemed necessary for the protection of the 
State, the preservation of order and the efficiency and good of 
the service. 

SEC. 3. The Legislature in providing for the organization 
of the militia, shall conform, as nearly as practicable, to the regu- 
lations for the government of the armies of the United States. 

SEC. 4. All militia officers shall be commissioned by the 
Governor and may hold their commissions for such period of time 
as the Legislature may provide, subject to removal by the Governor 
for cause, to be first ascertained by a Court Martial, pursuant 
to law. 

SEC. 5. The militia shall in all cases, except treason, felony, 
or breach of peace, be privileged from arrest during their atten- 
dance at muster and elections, and in going and to returning from 
the same. 

SEC. 6. All military records, banners and relics of the State, 
except when in lawful use, shall be preserved in the office of the 
Adjutant General as an enduring memorial of the patriotism and 
valor of South Dakota, and it shall be the duty of the Legislature 
to provide by law for the safe-keeping of the same. 

SEC. 7. No person having conscientious scruples against 



MILITARY AFFAIRS 187 

bearing arms shall be compelled to do military duty in time of 
peace. 

Respectfully submitted, 

E. E. CLOUGH, 
W. H. MATSON, 
T. W. P. LEE, 
W. H. GODDARD. 

Further: 

There was submitted to your Committe'e a petition from Jacob 
Schmidt and other Russian citizens, asking that Section 7, of 
Article XV, be so amended as at all times exempt persons having 
such religious scruples from doing military duty; the Committee 
finds that it is not possible for this Convention to so annul said 
Section 7, Article XV. 

E. E. CLOUGH, 
Chairman Committee. 

The Chairman: What is the pleasure of the Convention? I 
move that the report of the Committee on Military Affairs be 
adopted. 

Motion duly seconded. 

The Clerk read the further report by the same Committee with 
relation to a petition by Jacob Schmidt and other Russian citizens, 
exempting certain persons having religious scruples against bear- 
ing arms for military duty. 

Mr. Clough: I would like to say that Mr. Williams (of Bon 
Homme) desired us to change the word "annul" found in the last 
line of the report to "amend". 

The Chairman: If there is n-) Abjection, that amendment 
will be made. The Chair hears n objection, the report will be 
so amended. What is the pleasure of the Convention with regard 
to this report? 

Mr. Dickinson: I move its adoption. 

Which motion prevailed. 

The Clerk next read the report of the Committee on County 
and Township Organization, as follows: 

Sioux Falls, Dakota, July 20, 1889. 
MR. PRESIDENT: 

Your Committee on County and Township Organization, to 
whom was referred Article IX, entitled, "County and Township 
Organization," have considered the same and have compared said 
article with the Sioux Falls Constitution and the Act of Congress 
known as the Omnibus Bill, and have instructed me to report the 
following as Artic-k- IX (0) of the Constitution, and that the same 



188 SOUTH DAKOTA DEBATES 1889 

is in accordance with the Sioux Falls Constitution and the changes 
thereto authorized by the Omnibus Bill. That no changes are 
made excepting prefixing the word "South" to Dakota. 

J. F. WHITLOCK, 

Chairman. . 

The Chairman: What is the pleasure of the Convention? 

A Voice: I move its adoption. 

Motion duly seconded. 

Mr. Dickinson: I see that it compares with the corrected copy 
except that the word "other" should be inserted in the second line 
of the Sixth Section, making it read "Such other counties"; I 
move that that correction be made in accordance with the original 
draft of the Constitution by inserting the word "other" in Section 
Six the second line, before the word "county" "Such other 
county". 

Which motion was duly seconded and by vote of the Conven- 
tion, adopted. 

Mr. Willis: In the Preamble to this report in the last line 
but one, "That no changes are made except prefixing the word 
"South" to Dakota. I think that is not proper; the word "South" 
is not a prefix. I move that it be so amended instead of using 
the word "prefix" use the word insert. 

Motion seconded. 

The motion was given an affirmative vote by the Convention 
and the report was declared so amended. 

A Voice: I move the adoption of the report as amended. 

Mr. Atkinson: I would like to have the report as amended, 
read. 

The Clerk reads the changes made in the original report. 

The motion to adopt the report thereupon prevailed. 

The Chairman: That completes the special order for today; 
what is the further pleasure of the Convention? 

Mr. Clough: I would like to raise one question of privilege; 
I brought up from the University of Dakota, our State University ,n 
these catalogues, (indicating) and we specially ask the members 
to take them home for reference. I would like to say that we had 
three thousand printed and before they were out there was ap- 
plication for two thousand of them ; it will show there is some demand 
for them ; I would like to have'you take them home. 

Mr. Fellows: I would like to call the attention of the Con- 



ROUTINE 189 



vention to the fact that the Journal for the sixteenth day ought 
to be approved ; that is the day we adjourned without doing any 
business, and it was neglected. I move you, Sir, that it be now 
approved. 

The motion prevailed upon coming to a vote. 

The Chairman: I will have a letter read. 

Chicago, July 19th, 1889. 

CHAIRMAN* OF THE CONSTITUTIONAL CONVENTION: 
DEAR SIR: 

I mail you today a copy of Judge Altgeld's work on "Our Penal 
Machinery" which gives statistics and general information in 
regard to the different penal systems which it is thought might be 
of service to the members of the Convention; if you will kindly 
have the Clerk send us the names and address of the members of 
the Convention we will mail each a copy free of charge. The work 
is highly recommended by the ablest prison reformers of the country 
and is distributed in the interest of prison reform. 
Very respectfully yours, 

C. J. FORD. 
Suite 53, 115 Monroe St., Chicago. 

The Chairman: I will state to the Convention that I took the 
liberty this morning to request the Clerk of the Convention to send 
in the names as this is quite a large book and one I presume the 
gentlemen would like to have anyway ; I have requested the Clerk 
to forward the names. 

Mr. Whitlock: I move we do now adjourn. 

Which motion prevailed and the Convention stood adjourned. 



TWENTY-FIRST DAY. 

Sioux Falls, Dakota, July 24th, 1889. 
Two o'clock P. M. 

Pursuant to adjournment the Convention was called to order 
by the President. 

Prayer by the Rev. Mr. Willis. 

Almighty God, we recognize that by Thy will princes rule and 
kings decree justice. Assured are we from the lives of men and 
from history that woe is that nation that makes its plans and directs 
its efforts without reference to the divine wisdom, and divine 
providence. Aid, Thou, us in the deliberations of this session; 
everemore guide and direct the efforts of this new State about to 
be. for the Redeemer's sake. 

AMEN. 

The minutes of the preceding day were read by the Clerk and 
approved. 

Mr. Willis: I notice a repetition, of the paragraph on the 
twelfth page before the report of the Committee on Seal and Coat 
of Arms ; repetition of the whole paragraph on the same page. 

The President: The Clerk will make the correction. 

Mr. Sterling: I notice some clerical errors in the report of 
the Judiciary Committee. I would like to have the Clerk correct 
the third line of the first paragraph. * * * 

Under the order of business, Presentations of Communications 
and Petitions, the Clerk read the following communication: 



192 SOUTH DAKOTA DEBATES 1889 

Huron, Dakota, July 22, 1889. 

At a mass meeting of the citizens of Huron, Beadle County, 
on Monday evening, July 22nd, 1889, it was unanimously ordered 
that the Secretary of the mass meeting be requested to ask the 
Constitutional Convention, now in session at Sioux Falls, to adopt 
the Australian system of voting on the first day of October next, 
as expressed in the attached bill. 

SIGNED: L. K. CHURCH, 

Chairman. 

The President: The Communication will be referred to the 
Committee on Schedule. 

Unfinished business of the previous day. 

Reports of Standing Committees. 

Mr. Van Tassel: The Congressional and Legislative Appor- 
tionment Committee are ready to report as soon as the report is 
signed. 

Mr. Hole: The Committee on Schedule submit our report 
on the Prohibition clause, Article XXIV, and also Article XXV 
Minority Representation, which were submitted to us. 

Mr. Goddard: The Committee on Revenue and Finance 
report no changes ; our report has been compared with the report of 
the Committee on Errata and no changes were made. 

The President: Consideration of reports of Standing Com- 
mittees. 

Reports of Select Committees. 

Mr. Jolley; Your Committee on Rules have instructed me 
to report the following: 

Sioux Falls, Dakota. July 24, 1889. 
MR. PRESIDENT: 

Your Committee on Rules have instructed me to report that 
they recommend the two following additional rules for the govern- 
ment of this Convention, to-wit: 

RULE 46. 

That all claims and accounts against this Convention not paid 
by the United States, shall at once be presented to the Committee 



JUDICIAL CIRCUITS 193 



on Expenses of the Convention, and shall be considered by that 
Committee and reported to this Convention; and after any claim 
is allowed by this Convention, a certificate of indebtedness shall 
be issued and signed by the President and Secrteary of this Conven- 
tion to the person to whom said claim is allowed, in substantially 
the following form: 

Sioux Falls, Dakota, 1889. 

That A.*B has acted as 

of the Constitutional^Convention held at Sioux Falls, Dakota, in 

the year 1889, for days, at $ per day, and 

is entitledito the sum of as allowed by said Con- 

s itutional Convention. 

President. 

Chief Clerk. 

RULE 47. 

That each member and officer of this Convention shall have a 
certificate of indebtedness issued to him, as provided by Rule 46, 
at the same per diem as is allowed by the United States in the Omni- 
bus Bill, for each and every day he attends this Convention, after 
the appropriation of $20,000, made by the United States is ex- 
pended. 

JOHN L. JOLLEV, 

Chairman. 

Mr. Jolley: I move the adoption of these rules. 

Which motion prevailed and Rules 46 and 47 were declared 
adopted. 

The President: Presentation of Resolutions >and Propositions 
Relating to the Constitution. 

Special orders. The report of the Committee on Education 
and School Lands. 

Judge Corson: I move that that report be laid over until 
tomorrow. 

Which motion was duly seconded. 

The President: It is moved that the report of the Committee 
on School Lands and Education be postponed until tomorrow and 
made a special order. 

The motion prevailed. 



194 SOUTH DAKOTA DEBATES, 1889. 

The report from the Judiciary Committee was read by the 
Clerk as follows: (Here insert it.) 

Mr. Sterling: I move 'the adoption of the report 
Motion seconded. 

Mr. Spooner: I move as a substitute that the report of the 
Judiciary Committee be adopted with the exception of the proposed 
division of the Territory included in the Third, Fifth and Sixth 
Judicial Circuits and that the Territory included in said proposed 
Circuits containing the following counties namely: 

THIRD CIRCUIT: The Counties of Brookings, Deuel, Hamlin, 
Codington, Clark, Spink, Grant, Roberts, and all that part of the 
Whapeton and Sisseton Indian Reservation in this State, except 
that portion lying in Marshall County. 

FIFTH CIRCUIT: The Counties of Kingsbury, Beadle, Hand, 
Hyde, Hughes, Sully, Potter, Faulk, and Stanley." 

SIXTH CIRCUIT: The Counties of Day, Marshall, Brown, 
McPherson, Edmunds, Walworth, Campbell, and all the territory 
lying within said state not included in any other judicial circuit. 
I move this as a substitute. (Motion seconded.) 

Mr. Dickinson: In behalf or Day County, I also wish to 
second the substitute. 

Mr. Sterling: I desire to say upon this question, simply, that 
this matter was very fully discussed by the Committee on 
Judiciary. That at least three days were given to the discussion 
of the question of apportionment of these Districts. And that in 
addition to the three days' discussion in Committee, the matter 
has been freely discussed ever since the Convention met, by indi- 
vidual members of the Convention. That in addition to the views 
presented by the different members of the Committee before the 
Committee, there were the views presented by the different members 
of the Convention, who are not members of the Committee; and 
that a full and fair hearing was given to every one who had any 
adverse views to offer to the circuits as finally apportioned. I 
think Mr. Chairman, that no one can say but what there was the 
fullest and freest discussion and that this Committee went to work 
in earnest with the desire to do what was best for the entire State 
in the apportionemnt of these Judicial Circuits. And after all 
this discussion, after this thought upon the matter they have pre- 
sented to you this report as the very best that could be done. There 
are somewhat different views in regard to this. Some counties are 
not wholly satisfied. It is no wonder to us that there may be two 



JUDICIAL CIRCUITS 195 



or three counties among all these counties which, taking into con- 
sideration the matter of accessibility, are objecting, in that they are 
not joined to counties that they would desire to be joined to; it 
is no wonder that they should not be perfectly satisfied. Yet, 
taking the whole number of Circuits, taking the population com- 
prised within the different circuits, I do not think that a more sat- 
isfactory solution of this question can be presented than the one 
presented in this report. 

Mr. Couchman: I rise briefly to say that I see a serious dif- 
ficulty with the report. I come before this Convention with con- 
fidence, believing they are a fair body and men that want to do 
justice to all parts of South Dakota. Therefore, I speak with con- 
fidence when I come before you expecting that you will act upon 
that basis. I know that after the Committee had agreed upon 
this majority report in talking with the members of this Convent on 
they said to me, (and no doubt to others) "Had we fully understood 
the matter as we now understand it, a different report would have 
been presented to the Convention". As the Chairman of that 
Committee has stated, we all had a hearing before that Committee. 
Yes, we went before that Committee, but before we were permitt d 
to go before that Committee, what was done? They had met 
and had agreed to a certain report (Shall I say it!) had sworn to 
stand by it, even pledged to it, and that pledge was so strong that 
there was no breaking through it. Argument was unnecessary, 
reason was unavailing, they were bound on that report, and our 
meeting with them and objecting repeatedly and presenting our 
case was of no effect whatever. Then what could we do? Noth- 
ing; more or less than come before this Convention, which we 
believe and hope will seek to do justice to all portions of South 
Dakota. We are assembled for Constitutional purposes; it is not 
a political body, thank God. If it was that kind of a body, wi- 
would expect just about the same proceedings that have been gone 
through with by that Committee in making up the circuits for the 
Judicial Districts of this State. But we believe that in making up 
these c'rcuits it should be done fairly ; not an attempt by portions of 
the districts to arrange for the benefit of any particular man, nor 
set of men, or of some county. After the circuits are formed and 
any particular circuit is for a man they desire to come before the 
circuit, let him come, but do not let him be brought into pr m- 
inence directly by a circuit formed for that express purpose Now 



196 SOUTH DAKOTA DEBATES 1889 

believing gentlemen, that you are a fair-minded body, I want to 
i-how you where we are placed in this judicial (?) shuffle. And say 
if it is fair, and say if it is right, and say if it is just, and say 
if it is honorable. Gentlemen, we are in the northwest corner of 
South Dakota, that is of the populous portion of the State; but one 
county lying north of us upon the river; the County of Campbell lies 
north of us. We are placed in a Judicial C rcuit lying down the 
river; there are counties that would have over one hundred miles 
to ride down a wagon road, across prairie to the place where the 
heft of our business shall be done if this judicial circuit is formed. 
Over one hundred miles through the bluffs, down one bluff, through 
the ravines, and then up and down another and so on through three 
counties, down to where our business will be done. If we don't 
like this road we can go through Aberdeen, from Aberdeen to Huron, 
and from there we can go to Pierre. And in doing that, gentlemen, 
pass through a number of circuits before we get to our place of 
business. Gentlemen, is it fair, is it right? Do you want us to 
do it when we can have a judicial circuit here that we are all sat- 
isfied with, and pleased with, and anxious to have adopted? There 
is a tier of counties along the northern boundaries of this State that 
we believe every gentleman in the Convention are unanimous in 
forming into one judicial circuit. Here we have a road running by 
or through every county. We can go to that road, then go east, 
stopping off at Roscoe, Ipswich, Aberdeen, or wherever business 
and return the same day; shall we go to all this trouble, all of this 
expense and expense of time that will be necessary to do business 
in that Judicial Circuit that is there formed in this report? Gentle- 
men, I believe you will say no. Let me say further, when that 
country was settled up, we came to Aberdeen and then passed 
westerly towards the river, forming acquaintances as we went. 
Let us have a judicial circuit composed of men who are acquainted 
with each other, who like the ways of each other in business trans- 
actions, in judicial transactions and whatever relations they 
have, who are pleased with each other. We would like to re- 
main together. We are not afraid of being swallowed by Aber- 
deen because it is a larger county than ours, not by any means ; we 
go to Aberdeen, it is a large place to be sure and in Conventions, 
of course, they outnumber us three to one; they outnumber us 
in this Convention, but what do we care so long as they are hon- 
orable with us as they have always been. A better class of men 



JUDICIAL CIRCUITS 197 



does not exist than lives in Aberdeen ; when we go there we are 
treated courteously and kindly; to be sure, we pay our own 
bills ; it is not forced upon us to have our bills paid ; we pay our 
own bills ; if in any other county the bills have taken a different 
course they never ask for them. We have no representative 
upon that Committee; but let me stop right here and say, and 
say conscientiously, that not a man from the whole section would 
have found one word of fault with the President of this Conven- 
tion because we are not there represented ; he supposed as we sup- 
posed, it mattered not where the Committee came from, they 
would be honorable, they would do justice by us, and every 
part of South Dakota ; we did not care who Was on the Committee ; 
the Chairman will bear me out in saying that we did not embarass 
him to get upon the Committee, not by "any means. But when the 
Committe was formed we asked justice at their hands, but as we 
have shown you, we will have to leave it to this Convention to say 
shall we have it. Gentlemen, it lies with you to say whether 
this outrage shall be committed. Won't you think of this, gentle- 
men ; let me ask you to act as you would have us act. 

Mr. Davies: I am from the county adjoining Wai worth 
County ; just twenty miles this side of the county seat of Walworth 
County, where the judicial business of that county will be done. 
In the first place we do not assume in all human probabilty that 
all judicial business in that judicial district will be done in Pierre. 
Perhaps a few years ago, when we had one term of court eve v 
four or five years, it was necessary to go to Pierre up and down 
that river. We expect that some of this business will be done on 
the lines of railroad running right through the heart of this Judicial 
District. If you are not well versed in the geography and prospects 
of that section, let me say you will find three roads running in to 
the very center of those counties, and near to the river; and one 
running to Eureka, in McPherson County; so there are four rail- 
roads. And as is well known, others are looking that way; and 
at no distant day will be extended north and south, east of the 
river, through this proposed Judicial Circuit. Moreover, I have 
consulted with gentlemen of this Convention, from Campbell, from 
Walworth, from McPherson, and Faulk Counties and we find hen-. 
men from Walworth, Campbell, Potter and McPherson Counties 
who want to go right down the river. Compare the north half 
with the south half of the proposed district and is it for a moment 



198 SOUTH DAKOTA DEBATES 1889 

contended but that the direction of this Judicial business will be 
down south on the middle line of this District? Then we have 
better facilities as we are ; then running across the whole north tier 
of counties of the Territory and make Aberdeen the cent'er. I 
speak advisedly when I say that our people do not want to be 
joined to the Empire counties east of us. We know that if that is 
done the big fishes will swallow the little ones. We would be at 
the mercy of the large populous cities, Mr. President, I think we 
know positively that the opposition to this question is centered in 
two or three or four of the larger cities, the centers of wealth, in- 
fluence, culture and wisdom. There are seventy -five of us scattered 
all over this Territory, each one of us representing communities 
whose interests are dear to us. And while we wish God-speed 
to every large city in this Territory including Sioux Falls, we don't 
want to surrender ourselves body and soul. What little minds 
we have, they are our own minds and. we propose to stand right 
up for our rights and to say that it is right for us to have a square, 
compact judicial district composed of counties which are equal 
in wealth, influence and power and in cities. We want this show. 
We want simply what is right ; what is just ; what is honest between 
man and man; what is suitable to the judicial business for which 
we are now preparing. I am not one of that Committee, but I 
do not think that this Convention will for a moment question the 
wisdom, ability and honesty of that Committee. I have had the 
honor to attend one or two of their meetings and everything seemed 
to be fair and above board as anything could be. I believe there 
has been such work done by this Committee and so much of it, 
that any work we could do in this Convention by going at this 
business, everyone for himself, would not prove anywhere as near 
. satisfactory to ourselves or to the people at large. I do not believe 
it would be possible for this Convention to prepare anything that 
would compare with this report. I am certainly in favor of adopt- 
ing the report of the Committee, not the substitute. 

Mr. Dickinson: I think we should all bear in mind as sug- 
gested by Mr. Couchman from Walworth County that we are here 
as a Constitutional body and that we should seek to do fairly and 
justly by all portions of the Territory, and certainly to give all 
persons a chance to be heard upon these questions as those upon 
which there are interested. I think we should bear this in mind 
also, Mr. President, that it is not merely a bare majority that we 



JUDICIAL CIRCUITS 199 



should seek to get so that we could barely carry through the meas-'' 
ures we are defending, but it should be unanimous, as near as pos- 
sible. I wish every measure might be passed unanimously. In 
the Judiciary Committee there was a majority in favor of the re- 
port sent in. Quite a strong minority favored something like the- 
apportionment of the Judicial District in the north part of the 
Territory and east of the river as outlined in the one suggested here 
today. I wish to suggest this; that in the apportionment of these 
three districts, while there may be a number of the counties who are 
satisfied, there are at least eight counties out of the twenty-three rep- 
resented in that section that are thoroughly and completely dis- 
satisfied; led to feel that they have been unfairly dealt with, 
though perhaps not intentionally. I would not be so rash as to 
accuse that Committee of designedly doing injustice. I think it 
may be possible, Mr. President, that in a desire to do .well by the 
constituency represented by the gentlemen, they may have over- 
looked the interests of the constituency represented by us. Their 
own interests appear so large, ours appear proportionately small. 
It would be a serious mistake if this Convention should make 
any apportionment in that section of the State, which would leave 
eight counties so thoroughly dissatisfied. It would leave for in- 
stance, in the district comprising the Counties of Beadle, Spink, ' 
Brown and Marshall, which are very important counties, dis- 
satisfied and displeased with the arrangement. When a question 
is raised in that district, it seems to me that it would not be very 
pleasant for Spink County for that one county to be placed in, 
for the representatives of that county to be placed in and associated 
in that Judicial District. Those three counties could very con- 
sistently blame me for having brought them in that situation. That 
the three counties should be tied against their will ; against their 
interests; against their convenience, and against tlu-ir protests here. 
It seems to me that there can be certainly a more just, fair and 
reasonable arrangement than that. In the other districts repre- 
sented by counties towards the east line of the State, the center 
of which we may call the city of Watertown, there would be two 
counties that would be thoroughly disstaisfied. One of tlu-m. 
the County of Kingsbury, whose representatives are here and ran 
speak for themselves, and present petitions and letters from their 
constituents showing what they want, -with ivtViviHT to the main 
question, I will say when I came here I had no particular rare 



200 SOUTH DAKOTA DEBATES 1889 

which way we were assigned, as I am not a lawyer, and and I 
never had occasion to go to law. I never wish to do any other 
kind of courting than that which I did when I won my wife. It 
is my business, however, to .represent my constituents here. I 
have received a petition signed by every member of the bar, and by 
the leading business men of our county, saying they wish to go into 
the district in which they are now under the present Territor- 
ial conditions; that is the counties on the north line, Day , Marshall, 
Brown, Edmunds, McPherson, Campbell and Walworth. There was 
perfect unanimity in these seven counties that that portion of the 
State be not disturbed. The day before I came here I wrote up 
to Judge Crofoot and he said: "We can do no better than endeavor 
to secure the present arrangement of this Judicial Circuit." Judge 
Crofoot has no interest in making any such statement as that as 
he will probably not remain Judge long. It would be for the con- 
venience of those doing business in that district, the convenience 
of the district to remain as arranged at present, and as desired 
by the report of the Minority Committee. The Judge said: "I 
can leave Aberdeen every morning and reach any part of the dis- 
trict." ' Suppose he had to do business from Watertown, he must 
go forty-five miles across the country by stage one way, or he 
must go around by Elrod or around by Aberdeen arid Redfield, 
a rather expensive and thoroughly inconvenient way of doing busi- 
ness. Whereas, in the arrangement proposed by the substitute, 
we have free access to all parts of the district. I do not think 
anyone can blame us for desiring very much that arrangement. 
I Wish to call the attention of the Convention to the argument 
I heard before the Judiciary Committee. I think I have heard 
nearly all the arguments in favor of the arrangement recommended, 
by the Judiciary Committee. There has been nothing said of the 
inconvenience of counties. There is an element from outside the 
community interested, or political aims and ambitions who desire 
to be cut off from certain counties in order to have a better political 
field, but there is no political consideration whatever so far as I 
am aware of, that dictated the arrangement suggested in this 
substitute motion. We did not take into consideration the fact 
that anyone has a desire to be county judge, or because any par- 
ticular city or county desires to be the center. Our's is a convenient 
arrangement to those interested, to the tax-payers, and I wish every- 
one here to bear in mind in the studying of their maps, the propo- 



JUDICIAL CIRCUITS 201 



sition of the substitute does not place any of the counties in any 
disadvantageous position. It leaves them all arranged so that they 
have as easy and ready access by railroad as they have at the 
present time. If it is not upon the ground of convenience that it 
is urged by them, on what ground is it? If it is political ground, 
is it the issue that the Convention has got to get out of the way? 
And that, too, to the serious disadvantage of eight counties in that 
portion of the State in order to further the political ambitions of 
certain localities. I dislike very much, Mr. President, to refer to 
such things as this, but they are manifest in so many directions 
in the figuring that appears in these plans that it seems absolutely 
necessary in order that we make no failure in presenting the Con- 
stitution before these counties for adoption. I wish to say further 
in reference to the main question, after I had presented the op- 
position that a number of the best men had gone to the members 
of the Judiciary Committee. I have the assurance that they were 
satisfied, that they wanted the arrangement proposed to the west, 
that is Brown County, but they would not press the claim to our 
county and trusting in the pledge of the members of the Judiciary 
Committee that that would be the report, we paid no further at- 
tention to it until we found that it was too late to do anything to- 
wards affecting a change. That the arrangement had been made 
without my knowledge and without any deference to the wishes 
of the Representatives from Day County. After that there was 
nothing left to do but to present our desires before the Convention 
which we have done in these words. 

Mr. Van Buskirk: This is the first office I think I have ever 
held in this Territory and perhaps the only one I shall hold in the 
State of South Dakota; therefore, I desire to submit to this Con- 
vention some of the considerations which moved the Committee 
in making this report. And before proceeding to that I desire 
to allude to two ideas or suggestions that were made prominent by 
two of our brethren of the Convention. It has been said by my 
brother, Couchman, that this Committee had got together and un- 
der a pledge had sworn (I think was the word) to hold to a par- 
ticular line of action, with reference to this apportionment. If such 
a thing existed, it certainly did not come to my knowledge. I do 
not think any such thing ever did exist, and so far as its being a 
political question as suggested by Brother Dickinson, certainly 
I think as one of the members of the Convention, being as I am 



202 SOUTH DAKOTA DEBATES 1889 

numbered with the majority with no more hope of being elected 
judge in our district than one of the other members of the minority ' 
becoming President of the United States within the next five years, 
and there is no possibility of that; therefore, I think, so far as I 
am concerned, the members of the Convention can say at least, I 
have not been influenced by any political consideration. I believe 
there is in all three Democratic attorneys in that district which is 
proposed here. I am one of them and the others are young men, 
neither of whom aspire to that position. So I think, Mr. President, 
they will say at least, I have not been influenced by any such con- 
siderations in supporting this report. I have no means of judging 
of the future only by the past, and judging of the future by the past, 
I see no way for the proper administration of justice only to divide 
these districts of this Territory up into circuits as we have. It 
will become necessary to fully understand some of the reasons for 
this report, to go back a little to the history of the jurisprudence 
of this Territory. Originally we had three judicial districts. I 
did not come into the Territory until 1883, afterthat we had four 
judicial districts, and that stretched from the Missouri river to the 
north limit of the proposed State of South Dakota. The judges 
in these several districts had little penchant for business generally, 
because they were appointed to stay there as long as the President 
would let them. We had to hunt them ; they did not come into our 
counties very many times to hold court. Well, in the process of 
time we got another district in the Fifth District, in which I have 
alwasy practiced. And that stretches from the Minnesota State 
line to the Missouri river, over two hundred miles long and one 
hundred and fifty miles broad , 120 at least, all in one district. 
During that time the judges of the court who had to sit in that 
district, notwithstanding the people of the Territory voted them 
$1500 per year for expenses so they might hold their court throughout 
the various counties, sat down in the city of Huron and we have 
never seen them but once or twice since the Fifth District has been 
organized, at least in our county. Some counties near Huron had 
terms of five and six weeks at a time. We have not had five weeks of 
court in Codington County since I have been there, and I have lived 
there six years. Now, when we come to consider the condition of 
things it is no wonder that this people desire 'that we should have a 
Constitution framed here so that they could become organized as a 
state. 4 well remember, 'twas about the time I first came here 



JUDICIAL CIRCUITS 203 



early in the history of my residence in this Territory, someone 
remarked: "A poor man cannot get justice without buying it"; 
and many times I know people do have to buy it. I know in my 
practice I had a client and all the property that she had in the 
world was siezed in a chattle mortgage, and she had a good defense. 
What was the result? I had to go to the county seat of Brown 
County, or I may say it is now the county seat of Brown County. 
I got the case transferred to another court for trial. Judge Smith 
was upon the bench, I got my order. The mortgagee moved to 
set aside this order on motion. Mortgagee was a man of wealth, 
and my client had not a dollar in the world. He served me with 
a motion to go down to the city of Pierre and we argued there that 
motion to set aside the order to give him an opportunity to set up 
a defense. I had to let this poor man lose everything he had, with 
which to earn his living or put my hand in my own pocket and buy 
railroad tickets and pay for hotel bills ; I did it ; I do not regret it 
today, I do not expect pay; this is mentioned merely as an il- 
lustration of the condition of things which, Gentlemen of this 
Convention, moved the framers of the Constitution of 1885 to in- 
corporate in the Constitution as adopted a clause that the judicial 
districts shall be composed of compact territory. And your Com- 
mittee acted upon that instruction and we arranged the Districts 
and the connection with a view to an apportionment in such a way 
that the people might reach the courts and the courts might be 
near the people. Well, what further? It came to my knowledge 
before I came here that a combination had been formed to stretch 
out the districts from the State line of Minnesota to the Missouri 
river on the north, including the Counties of Grant, Roberts, Day, 
Marshall, Brown, Faulk, Edmunds, McPherson, Campbell, Walworth 
and Potter. On the other hand, down somewhere near the south 
line of this State, not a great ways from the sixth standard parallel, 
they got together and proposed to stretch out another district 
two hundred miles long, from the Minnesota State line towards the 
Missouri river, for some reason satisfactory to themselves. They 
proposed to let the Territory lying between these two lines take 
care of itself in the best way and manner that it could. I undertake 
to say that when they undertook to form a combination stretching 
out the district in that manner, it was a plain violation of the Con- 
stitution under which we are acting and adopted by the people 
on May last for our guidance and control. Well, the question arose, 



204 SOUTH DAKOTA DEBATES 1889 

what was to be done? A few attorneys, familiar with the legal 
business of the whole country, when appointed on this Committee, 
went to work to see how this matter could be divided up the best 
to accomodate the people and business of this State. It has been 
said here that it is easy to get from Day county over to Aberdeen. 
Now, as I said, I had supposed that the purpose and policy of this 
arrangement of the districts contemplated by the Constitution 
and which had been agreed upon by the Committee was to strike 
at the root of this idea that the people of alarge section had to go 
for judicial purposes to Aberdeen or Huron. I supposed that that 
was the purpose of it. That the object in forming the district this 
way as my purpose was to fix it so every locality might rest upon 
its own merits and divide these districts so that we would not be 
compelled to go to some particular locality. My friend Dickinson 
from Day County, says it is much easier to go to Aberdeen than 
come to Watertown and perhaps some other locality. Let us look 
at it a minute. I do not understand that the county seat of Brown 
County is in Aberdeen. It is true that temporarily they pre- 
vented the moving of the records, as I understand the Supreme 
Court of the United States has decided that the county seat has 
never been properly removed from Columbia. Now, if the gentle- 
man wishes to go from his county to Columbia in the morning he 
can get an early start and can go until four o'clock the next day 
to get to Columbia. He will have to be gone two days in spite of 
all he can do and if he does any business, perhaps three, at a 
distance of seventy miles. Now again, I don't know any reason 
that this Convention should assume that the court is going to get 
down in a particular locality and make everybody go there, in the 
future as in the past. Suppose an attorney wants an injunction. 
The Judge should be holding court over in Campbell county on the 
Missouri river. How long would it take him to go over there to 
get his injunction and back again? About a week at the best he 
could do. Suppose the gentleman from Campbell county should 
conclude his interests were in danger and he wanted an injunction 
and the Judge happened to be holding court in Marshall county, 
how long would it take him to go up there? Probably about three 
days o go up there and back again. Now then, suppose this dis- 
trict shall remain with Day county in it as proposed by this Com- 
mittee.' He can leave his place of residence in the morning, an 
if court is sitting at Milbank, in Grant county, he can get up the 



JUDICIAL CIRCUITS 205 



and have half a day to attend to business and get home the same 
day. If the court is sitting in Clark county, he can leave home 
in the morning and get down to Clark before noon and have some 
time to transact business between trains, and get back the same 
day. It is only about forty miles ; he could get to Watertown about 
half past two o'clock in the afternoon, transact business and get 
back home the next day ; and in either place he would not have any 
more miles of railroad to cover than to Aberdeen. I am bound to 
do the people of the county a kindness whether they appreciate 
it or not and vote this amendment down, because they will then 
have three places they can attend court as conveniently as they can 
at the county seat of Brown county. Now, what interest Marshall 
county can have, I do not know. They are there where they can 
get blockaded in the winter season ; that is conceded. I am told 
that the purpose of this was to place the people in the various 
districts that are organized so they could get some kind of service. 
I have no way of judging of the future but by the past, and my past 
experience in this Territory and the exeprience that I had before 
coming to this Territory, for I have been practicing law about 
twenty-five years constantly, is that these outlying counties will 
always be neglected where farther removed from the larger 
counties, that they do not get the same service. It has not 
only been true here in this Territory, but the matter of obser- 
vation with me in my practice before coming here, and we have no 
other means of getting at it only to say that in the future it will 
be as in the past. Therefore, let us put these counties together, 
let us put these rich counties lying west and up and down the James 
in a situation where they can elect their own judge. Then they 
will have no large counties to control the smaller ones and they 
will get equal service all through the district. I know of no other 
way to get at it. These are some of the considerations that have 
moved the Committee to make this report that has been made here. 
The attorneys upon this Committee have understood what the 
situation has been heretofore, and therefore we thought it was 
right to place these counties that have had no service at all in a 
situation where they would have a judge themselves and could get 
the service they have a right to demand, and which they would 
expect now. Something has been said about the convenience of 
letting from Kingsbury County to Huron. If the court should 
happen to be sitting in the district over at Pierre they would not 



206 SOUTH DAKOTA DEBATES 1889 

find it so convenient. It is only about thirty miles over to Brookings , 
about thirty miles from Clark, and about the same distance from 
Watertown. So they will have three counties very near by and 
if the Judge should happen to be over at Pierre, it would not be 
convenient for them at all. I apprehend that when this Constitu- 
tion shall go into effect, and our Legislature shall have fixed the 
time of holding terms of court, I apprehend they will have two 
terms of court in each of these counties and perhaps a law term. 
I do not know any particular reason why the gentlemen have got 
to go out of their own county to attend to their business. I have 
practiced law for a period of twenty years in the First Judicial 
District of Wisconsin, with a very large practice. During all that 
time I never had to go out of my county but twice to argue a 
motion. I apprehend that when these gentlemen come to get 
their courts organized so that the judges are responsible to the 
people, they will never have to go out of their counties to argue 
their motions. It is merely a fancy based upon the iniquitious 
system existing in this Territory at the present time. Again, 
under this Constitution the Legislature may confer the power of 
Judge of Chambers upon the County Courts. That was done in 
Wisconsin. There was but one solitary order that the Judge could 
not grant, he could not grant a new trial. There was not another 
motion that the judge had not the power to hear and determine. 
It was not necessary to go out of the county to argue a motion; 
and that would be the result here. You woxild not have to go out 
of your county to argue your motion. It is entirely a mistaken 
idea that the people of one county are going to be compelled to 
go to other judicial districts as heretofore. For instance, a gentle- 
man may want an extension of ten or fifteen days to file a complaint 
in the case. All he has to do is to step over to the office of the 
county court and get his order. If he wants to make a complaint 
more definite and certain he can go before the county court and 
ask for an order, so if he wants an injunction the Legislature may 
confer the power here as there, under a similiar Constitution for 
him to grant injunctions. What would you go away from home 
for under these conditions? It is just simply a fancy based upon 
the iniquitious condition of things that is existing in this Territory, 
and which will not exist any longer than the moment you get a 
judge that is dependent upon the will of the people for his position. 
Mr. Matson: I am not given to speech making yet I ask the 



JUD CIAL CIRCUITS 207 



indulgence of the body for a few minutes. If I were anxious for 
newspaper notoriety and capable of it, there is doubtless material 
for a first rate speech. If I felt disposed to give full vent to the 
feeling of indignation with reference to certain matters in this con- 
nection, I think now is my opportunity, but I have no disposition 
to make a speech. I certainly am not disposed to question the 
purpose of any member of the Judiciary Committee because I 
know of one instance they were imposed upon. I feel that if I 
had been a member of that Committee I would resent it. I am not 
disposed either to speak here against the expressed wishes of people 
in Dakota people whom I do not represent. I simply want to 
make a statement with reference to the feelings of the people I 
do represent in order that their wishes may be known, I will 
allow them to speak for themselves. During the first week of the 
Convention, in order that I might act intelligently in reference 
to this matter, I wrote to a gentleman in Kingsbury county asking 
him to ascertain the wishes of the attorneys in reference to the 
judicial districts. I received for a reply something like this, in 
substance: "I have seen some of them but they do not seem to 
care how the matter goes. Have nothing to suggest." With that 
reply I rested perfectly easy until the Committee had got well under 
way, and I saw that the members from the different portions of the 
State were considerably exercised over their actions. I thought 
it very strange that our people were so unconcerned so I went to 
the Chairman of the Committee and asked if a ccmmunication had 
been received from Kingsbury County. " He said, "Why, yes, there 
is a petition." I thought it was a little strange. So I went to the 
gentleman who had the petition and asked if I might see it. He 
let me have it and I read a petition signed by two gentlemen who 
claimed to be the Chairman and Secretary of a meeting. The 
County Treasurer of our county was upon the grounds at the time 
and he said, "That thing is a fraud", and "Such a meeting never 
was held." That was stated, in substance, before the Judiciary 
Committee. I received a telegram which I will read: "Watson and 
Schenain were the only persons at pretended meeting of Bar which 
asked that Kingsbury be attached to Codington. Every other 
person seen asks to go with Beadle. 

JOHN A. OWEN, 

J. C. GIBSON, Abstractor, 

THOS. H. RUTH, Mayor." 



208 SOUTH DAKOTA DEBATES 1889 

In addition to that they sent a petition of remonstrance which 
I will read: 

To THE MEMBERS OF THE Sioux FALLS CONSTITUTIONAL CON- 
VENTION: 

The undersigned attorneys and business men of Kingsbury 
County would respectfully represent that they are opposed to, and 
earnestly protest against being included in the Third Judicial Dis- 
trict for the reason that the railroad facilities of said Circuit, so far 
as they affect Kingsbury County, are so limited that it would put 
the people of said county to great inconvenience and expense to 
reach other counties in said Circuit. And we further represent 
that we are in favor of a circuit composed of the counties of Kings- 
bury, Beadle, Hand, Hyde, Hughes and Sully, or a similiar circuit. 

B. A. DUNLAP, Merchant, 

THOS. H. RUTH, Cash. Kings. Co. Bank, 

D. H. LOFTUS, Merchant, 
H. J HAMILTON, Merchant, 
W. E. BROADBENT, Merchant, 
S. B. OWEN, J. P. 

WILL H. RUTH, Asst. Cash King. Co. B. 
J. C. GIBSON, Abstractor, 
R. N. BUNN, Dep. Co. Treas., 
GEO. C. DURKEE, County Auditor, 
A. C. HANSON, Register of Deeds, 
V. F. DAVIS, Dep. Register of Deeds, 
PHILIP LAWRENCE, Probate Judge, 
A. W. MULLEN, Postmaster, 

E. S. Johnson, Atty., 
A. THOMAS, Atty. 

C L. DEWEY Clerk Dist Court Kings- 
bury County, 

t A. N. WATERS, Attorney, 

G. C. BRADLEY, Druggist, 

F. R. JEWELL, Merchant, 
D. R. WILLISON, Jeweler, 
GEO. B. WILMARTH, Merchant, 
D. W. WILMARTH, Merchant, 
HOPP & MCDONALD, Publishers, 

C. H. TIHKHAM, Merchant, 

C. P. INGALLS, Deputy Sheriff. 
R. S. GLEASON, Co. Supt., 
P. W. MC.KELLER, Physician, 
W. L. SEELYE, Insurance, 

J. CARL S , Abstractor. 

It was signed by thirty-one of our people, representing bank- 
ing intsitutions, merchants and people in the vicinity of the city. 



JUDICIAL CIRCUITS 209 



We have simply let these documents speak for themselves; we only 
speak with reference to Kingsbury County. I may not be able 
to speak intelligently on this question, for the reason that I never 
practiced law, not even as a client. So far as I am personally 
concerned, it is absolutely immaterial to.me as to how these districts 
are formed. I do feel in duty bound to represent my people in 
this matter, they have put these papers in my hands to be used 
here, publicly in the Convention. I think in justice, I ought to 
say further, there are no lawyers in our town in Kingsbury county, 
the only lawyer who does business in our village resides in Beadle 
County, just over the line. Our town is in both counties. This 
lawyer in Beadle County wrote me, but I have given it no consider- 
ation for the reason that he is on the Beadle County side of the 
line and not in the district that I represent. I also have a letter 
from a gentleman of Iroquois who requested that we do not "shoe- 
string" these districts, on the basis to have them as compact as 
possible, of course, his idea was, to make the matter of expense 
and time as convenient as possible for the people He left it to 
me that they cannot go to Watertown if they had any occasion 
to go to the legal center and transact business, short of three days. 
While they can go to Huron and return in one day, and- have the 
whole day to transact business. 

Mr. Da vies: I do not want to take more than my portion 
of the time in this matter. I forgot something in the early part 
of the discussion. I have with me documents from members of 
the Bar of the northwest counties, interested in this matter which, 
if necessity compels me, I will bring forward before the Convention. 
I do not think they will be at all necessary. I will, however, 
intimate, they are private communications, but if they become 
needful I will read them. They are from attorneys, I am an 
attorney myself practicing in that district from ex-Judges 
anil ex-District Attorneys, and from Clerk.s of Court. I have them 
with me in my pocket if they are wanted. I do not think it will 
be necessary to produce these documents to sho\v fully the desires 
of the- people in that particular district. With reference to the 
convenience of going to Aberdeen, it is not convenient to have to 
practice law before the Judge at Aberdeen. Judge Crofoot, who 
is a very able and competent judge, comes to Ipswich to bold court. 
and goes home to sleep nights. If we had our own district and our 
own judge, who would be on the ground at all times there are 



210 SOUTH DAKOTA DEBATES, 1889. 

times when a matter of threeminutes or five minutes will enab'e a 
man to go home Saturday night with eight or ten witnesses instead of 
staying at the county seat at great expense. It is not convenient 
for any other counties but Brown County to come to Aberdeen to 
do judicial business with the judge residing out of that district 
and going home to sleep nights, no matter who he is, or how good 
a judge he is, it is a matter of great inconvenience to all the resi- 
dents of that district. 

Mr. Sherwood: I do not desire to make a speech, but I do 
desire to call attention to two or three matters in relation to the 
judicial districts as they are now, or rather as they were, in con- 
nection with some things that have been said by those who oppose 
the report of the majority of the Committee. I will say, that as 
a member of the Judiciary Committee, I believe it was the honest 
effort on the part of every member of that Committee, to consider 
only the interests and welfare of the people interested in the sub- 
division of this Territory into judicial districts. If there was any 
effort upon the part of any man to fix a district for any judge 
or any individual, I am not aware of that effort. If there was any 
compact or anyone sworn to it, I am not aware of that fact. But, 
as my friend Van-Buskirk, who comes from the Codington County 
Bar and is in the same judicial circuit as myself, has said, before 
we left our homes, we understood that a meeting had been held 
in Aberdeen at which an agreement was made to change our 
three or four judicial c'rcuits into three circuits, with one center at 
Aberdeen, and one center at Brookings, and one center somewhere 
else. Now, as far as Mr. Matson is concerned, I desire to state one 
thing, that he has stated the matter as I understand it; there is 
no question about it at the present time. But, one more thing, 
when the Committee acted upon the matter they had before them 
a petition, a copy of which I have in my possession, which was in 
substance as follows: At a meeting of the Kingsbury County Bar, 
held at the office of James F. Watson, Mr. Watson was elected 
Chairman on motion, and the following resolution was adopted: 
RESOLVED: That it is the sense of the Bar of Kingsbury County 
that no change be made in the Judicial Circuit as fixed in 1885. I 
also have in my possession a letter to which the gentleman has 
referred ; as he has stated to you when the Committee acted upon 
this matter, the Judiciary Committee, they had before them 
this letter from a banker of Iroquois and this petition ; that was at 



JUDICIAL CIRCUITS 211 



that time before them from Kingsbury County , with the exception of 
the incorporated statement of the County Treasurer of Kingsbury 
County, who appeared before the Committee, and said it was not 
the wish of the people of Kingsbury County. So much then, for 
that. I think I stated it accurately concerning the two parties 
who represented that Kingsbury County wishes that the Judicial 
Circuit chould remain as it was under the Constitution of 1885. 
It has been stated that Judge Crofoot says, that the district could 
not be bettered as it now stands; I desire to say this, that all that 
country, Roberts, Day, Marshall, and west, Potter, and that Grant 
and Roberts Counties have sent down petitions which I hold in 
my hands (a letter from Grant County) signed by every member 
of their Bar, requesting that they be left in the third district as 
arranged. It is said by my friend from Day County that should 
the twenty-three counties comprised in the three or four Judicial 
Circuits be divided as suggested by the majority of this Committee, 
that there will be eight counties wholly or diametrically opposed 
to that apportionment. I say that should the district be ap- 
portioned as provided by the substitute there would be fourteen 
counties diametrically opposed to such apportionment. 

Voices: Name them! 

Mr. Sherwood: You name yours and I will name mine. It 
i a question now of whether you will displease the majority or 
the minority. As I understand it, it becomes our duty to divide 
these two Territories into circuits as near compact in form as pos- 
sible. Now, what have they done? They have formed a triangle 
with four counties at the base and one county at the point of it. 
What is the object of that? What is the particular 
reason? Why, of course, no political reason, not at all. Still 
I am by taking Aberdeen as the center", that if the 
two counties on the east should vote with Aberdeen, under the 
apportionment of delegates made at the last Convention, if the 
two counties on the east of Aberdeen vote with Brown County, 
there is a majority of votes in that Circuit ; if with the west, there is 
a majority of votes in that section. In other words, throwing in- 
fluence or weight at the center, or Brown County, on either side 
will carry it in any way they choose. Of course, that is not political . 
I also observed that in every motion that came before the Judiciary 
Committee, for the other circuit, that the vote of Beadle County 



212 SOUTH DAKOTA DEBATES 1889 

with the vote of the counties to be, resulted just as they proposed 
in general. I think that is the case now. 

Now, if there is anything political in any of these moves, I 
see how that circuit whereby one county standing in the center can 
control the circuit by combining with either end. I do not say that 
there is any political design for that purpose. I say further that 
when we first commenced arguing this question, the only argument 
offered before this Committee was to make the circuit as nearly 
accessible as possible by means of lines of railroads. But when 
the proposition was made to put Brown, Spink, Beadle and Miner 
Counties together, and it was where two lines of railroads ex- 
tended into that circuit, then they said: "We do not w r ant that 
under any circumstances," whatever. If we are to act as we have 
not acted heretofore, so that they arrange states for the convenience 
of the cities, instead of the convenience of the people, then the re- 
port of the minority should be adopted. If we are to arrange for 
the people instead of the city of Aberdeen and the city of Huron, 
then the report of the majority should be adopted. 

The President: Is the Convention ready for the question? 

Mr. Davies: I ask that the report be read. 

Mr. Dickinson: I desire to correct one misapprehension that 
these gentlemen are laboring under, that is with reference to the 
Aberdeen meeting and the combination formed there. This is the 
first I have heard of that suggestion. 

Before we came down here, the delegates coming down here 
that would have to go through Aberdeen to come here, I presume, 
received a card as I did, signed by the delegates from Brown 
county, asking us to meet at the parlors of the Sherman House 
the night before we came down. Accordingly I was there and 
went into a ro<3m and was introduced and we shook hands all 
round and arranged as to what train we should take to come down 
here and then adjourned, without date. That is all the combi- 
nation I know anything about. In reference to the judicial mat- 
ters nothing thought of particularly at that time that I was informed 
of at least. So far as my knowledge goes, Aberdeen has not "poked 
her nose" as is sometimes said, into this business at all. Nobody 
has said anything except the delegates who had their duty to per- 
form in this matter, no attempt to control in the interests of Aber- 
deen or Brown County. There are a good many other things, 
it seems to me ought to be said. I want to allude. to just one thing 



JUDICIAL CIRCUITS 213 



more, that is the assertion made that fourteen counties would be 
opposed to the arrangement if the substitute was carried. There 
might be three counties that would be in some measure incon- 
venienced, but none of them, I think, but what would be more con- 
veniently situated that the balance of the counties would under any 
other arrangement. The counties I think, as conveniently ar- 
ranged as they could possibly be arranged, as the plan proposes. 
It seems to me the convenience of the entire State should be kept 
in mind. The spirit of the arrangement was that it should be made 
convenient of access from all parts of the counties and district. 

Mr. Hole: Mr. Chairman and Gentlemen of the Convention: 
When we were elected and sent to Sioux Falls as delegates, our duties 
then were to represent our constituents in our individua 1 districts. 
When we were appointed on Committees in that Sioux Falls Con- 
vention, our duties then were to serve the Convention and to forget 
that we were representing merely one county, or one particular 
place. That was the position to be .taken upon these Committees. 
I will say that in the main, that has been respected, I will say 
that the Committees have arranged these districts to the satisfac- 
tion of everyone of the delegates from those districts every single 
one of them , e very one of them were consulted and we were 
acting the part of repre:entatives of a dignified body. 

But taking this map, we have a member of this Committee 
there, one there, and one there (indicating) and as you see, there 
is no power that can reconcile their claims. 

This member gives his district and this member gives his, 
(indicating on map). It was probably unfortunate, uninten- 
tionally so, bu unfortunate that they happened to be placed right 
along together. They could hardly do otherwise than look out 
for self-interests ; it was natural remembering that they came here 
representing individual constituents forgetting that when appointed 
upon committees they ceased to represent their constituents alone 
but fairly and honorably to represent all of Dakota. That much 
for that one point; I think that is the keynote. It'all hinges with 
the north half of South Dakota. The whole disturbing trouble 
comes out of the desire to fix this in the Committee, at least it 
ooks that way to me. The purposes of these Judicial Districts 
is to satisfy and accomodate the people in their law business, in 
their legal difficulties ; that is the purpose of it ; let them be equitably 
and fairlv divided. 



214 SOUTH DAKOTA DEBATES 1889 

When we came here it was talked all around by almost every 
lawyer in the Convention that we had not districts enough; that 
there were not sufficient districts; but as soon as these districts 
were formed I find that that was forgotten. In the east we divided 
it in this way, (indicating on map) leaving that one district more 
business, as I am informed by members who are acquainted with 
th facts, more business in that one district than both the others; 
more than any other one district. 

The political feature as referred to by my friend from Clark is 
an amusing one; of course there was no politics in what they have 
outlined, going on, he shows that Aberdeen makes a center, and 
Huron makes a center. I presume as soon as he studied Long's 
Legislative Hand Book he maybe satisfied he knows that Kingsbury 
and Beadle Counties have at least a majority. ; I j* fe |i 

Mr. Sherwood: I said Miner and Kingsbury. 

Mr. Hole: That question is not before the Convention; Miner 
has never been mentioned, never been thought of in this connection, 
because Miner objected and would not come" in and plainly said 
we are satisfied. That much for the politics of the whole arrange- 
ment. Yet, gentlemen, you will bear me out today that I am not 
as much of a politician as my friend from Clark (Mr. Sherwood) 
and I ask that you look this all over before you take what has been 
stated for facts. 

Another thing; you say that these districts must be in compact 
form ; it took a great while to pound into me the idea that a district 
one hundred and thirty miles long and thirty-six miles wide was 
compact; I can't see that it is compact; the idea of putting a dis- 
rict in that shape! As it now stands, so far as convenience is 
concerned, I will state this, and I do no fear contradiction or dis- 
pute, that in this district as arranged, making these seven counties 
as on ? district makes a district that when you come to go from 
one place to another that cannot be made up in matters of con- 
venience any more desirable, by any other manipulation of these 
counties. Distance in miles does not figure it; it is time taken to 
get from one court to another. That is the fair equitable consider- 
ation; not the consideration perhaps that a railroad runs the entire 
length of the district and through every county in the district. 
From our county you can reach every point in the district, every 
day. In Brown County you have the same result, in the county 
of Codington, Hamlin, Deuel, Brookings you have the same result. 



JUDICIAL CIRCUITS 215 



And so far as stating the ground is concerned, I will defy contra- 
diction of this statement, that outside of political and little personal 
matters, to have the report carried through, the Counties of Cod- 
ington, Hamlin, Clark, Brookings and Deuel, Grant, never have 
complained of this District. Spink has some reason to remonstrate 
and they can sympathize with us. Potter, Faulk, Sully, Hyde and 
Hughes Counties, never have objected because they are compact 
in form. The people of Kingsbury County may, but they do not 
here today. I may state to you that Beadle County will be satis- 
fied as it is best that it seems possible to get ; I will say further that 
Hand County is satisfied and wants that arrangement. I will also 
say that Hyde County is satisfied and wants that, and so far as 
Hughes County is concerned it has not been heard from. Faulk 
County has no reasons for dissatisfaction because they can reach 
every other point conveniently so far as judicial services are con- 
cerned. The purposes and duties of this Convention is not to 
make up a circuit for any particular person or any particular 
clique, but to make up a circuit that would serve the common 
people and give them what they demand. Give them an ex- 
peditious and convenient district in which to do business. The 
railroad facilities in making up these districts have been studied 
in T articular, and it was not made up on the spur of the moment, 
it has been worked over. That was kept in mind from the first. 
I do not believe that this Convention, while it has got the power 
to do it, will do anything other than what the original motion con- 
templates. Now you havj. four counties that have more business 
than all the north districts in which there is not one single man 
satisfied, not one single delegate, if I may use their words, not 
one single delegate satisfied. I have talked with the members 
from Spink County, Chairman of the Committee,! have also talked 
with the other men, and they all say it does not suit the'm at all. 
Now I am confident that this Convention will not allow it to per- 
petrate this huge mistake and force this district upon the people, 
in which there is not one assenting voice. I know you will not do 
it. You are here this afternoon in the capicitv of a jury, you 
are listening to what is said upon either side, then make up your 
minds and do what is right, what is fair, and that is all that is asked 
at your hands. We do not wish any prejudice, any petty jealousy, 
any of the little feelings that we may have engendered bv con- 
tending over this thing or when we get excited sometimes we do, 



216 SOUTH DAKOTA DEBATES 1889 

to enter into this consideration at all. These things ought, from 
this moment, to be entirely forgotten; you are to act as jurors; you 
are to do your duty as jurors. I am satisfied that you will do ex- 
actly what is right in this matter. 

Compactness of these districts is another matter I wish to 
call your attention to just a moment. The idea of calling this 
compactness. ^ There is not one element of compactness in a dis- 
trict 130 miles long and 30 miles wide. I do not think that it is 
necessary to be argued. I will say yet that the districts as made 
will, I think, satisfy the people of the district. 

Mr. Van Buskirk: I want to reiterate two things that the 
gentleman just on the floor has made. He said there is more busi- 
ness in that Jim River District than all of the others. I have had 
occasion to visit the courts of every county except Roberts, lying 
east of the west line of Beadle, Spink and Brown Counties. I am 
familiar with the business. I know whereof I speak. I know 
there is no business there in those districts that compares with the 
Empire District to the west of that section. 

Another thing, gentlemen of this Convention, there is some- 
thing very serious about making a district one hundred and tw r enty 
miles long; I have counted up the townships; it is 120 miles long; 
counting up the townships from the west line of Spink County to 
the Minnesota state line, it is a little longer than the other one; it 
is large enough to make a state over 120 miles long; talk about 
compactness, and look at it! 

Mr. Hall: With regard to the matter of the amendment I 
think there are counties that should be consulted in regard to form- 
ing that kind of .a district as well as other matters. 

In Hand, Hyde, Hughes, Sully and Potter and Faulk Counties 
they are not satisfied ; and I do. not think a single one of the dele- 
gates are. They claim Hyde as being favorable; I wish to read 
portions of a letter I received from an attorney at Highmore in 
regard to ithis matter: "I favor a judicial district stretching east 
taking in Kingsbury county ; it is not very nattering that they have 
since signed a paper cancelling their former signatures, which paper 
I will forward to you tomorrow. Our people here are united upon a 
district lying in a body, and cut off the necessity of attorneys run- 
ning to Huron for court business. We favor the report as made by 
the majority of the Judiciary Committee and look to you to pro- 
tect our interests in this direction." 



JUDICIAL CIRCUITS 217 



It seems Beadle County or somewhere else 'has sent a man 
down in the adjoining counties for the purpose of getting signatures. 

I will read a portion of another letter: "For Heavens sake 
don't let Huron own us any longer". Signed, W. A. Perkins. 
(Laughter). 

The letter shows, Mr. President, that the people of this dis- 
trict are opposed to the arrangement as suggested. 

Mr. Anderson: I presume it becomes necessary for me to 
straighten myself out a little; I might get somewhat mixed up. I 
came here under the impression that I was a representative from 
the Eleventh District. Almost immediately after coming here 
I was credited with being a Huron man ; the next thing I was charged 
with being a Republican ; I can stand that tolerably well ; the next 
thing I was taken for a Presbyterian preacher; and now, Mr. 
Chairman, I am almost unable to tell after listening to the gentle- 
man from Beadle, whether I represent Hand County or Beadle 
County. 

The gentleman has stated that all the counties pretty much 
west of Beadle, were in favor of this substitute; that Hand County 
was in favor of it, and Hyde County was in favor of it, and Sully 
and possibly Potter; these gentlemen have spoken for themselves 
they have said to the Convention they are not satisfied and do not 
favor it. I think I can speak for the people of Hand County cer- 
tainly as well as the gentleman from Beadle. I say unhesitat- 
ingly that the people do not want any connection with Beadle 
County; it would not suit the people of Hand County to be in- 
cluded in the District as comprised in this substitute; I shall vote 
for the report of the Committee on Judiciary ; I shall vote against 
this substitute; we are satisfied with the district as reported by 
the Committee and expect to vote for it; I think the Committee 
has done a remarkably good job in putting up these districts, par- 
ticularly the Fifth District. The District comprising the empire 
counties of Brown, Spink and Beadle, including the metropolitan 
cities of Aberdeen and Redfield and the Village of Huron. I think 
this is exceedingly proper. I hope this Convention will come to the 
aid of the rural sections of these districts and release us from the 
grasp of these cities. 

Mr. Cooper: I have been waiting to hear from Hand County 
before touching up this question; I am glad I have at last heard 
from it. About a week or ten days ago the gentleman who just 



218 SOUTH DAKOTA DEBATES 1889 

addressed the Convention came to me with a proposed circuit 
which read as follows: Sully, Hughes, Hyde, Hand, Beadle and 
Kingsbury, and perhaps Miner Counties. He told me last night 
that he didn't know the people of Hand county stood on this ques- 
tion except from what he had heard from that county since he 
came here. I have heard from that county; I have it in black and 
white, signed by every attorney living in the county of Hand; the 
gentleman from Hand County included saying that they desire . to 
be connected in that district consisting of Sully, Hughes, Hand, Hyde 
Beadle, and Kingsbury, or a similiar circuit; signed by every at- 
torney, I say in the county of Hand, with one exception, and the 
reason that he gave for not signing it was this: That he was in 
favor of the Circuit proposed in the substitute, other attorneys 
opposed the Circuit proposed by the majority of the Judiciary 
Committee and that he was in favor of sending this petition- (which 
they afterwards adopted) through the representatives from that 
county, but the majority of the attorneys said that they desired 
that the petition should be addressed to the Constitutional Con- 
vention of the State of South Dakota; and for that reason he did 
not sign the petition. The petition speaks for itself and' is sub- 
stantially in the following language: 
To THE MEMBERS OF THE Sioux FALLS CONVENTION: 

We, the undersigned members of the Hand County Bar, respect 
fully represent that we learn with surprise, the boundaries of the 
Sixth Judicial Circuit and desire to enter our earnest protest against 
the same ; that it will be injurious to the people of this county owing 
to the lack of railroad facilities with which to reach the different 
portions of the proposed circuit. And we further represent that 
all person or persons who may state or have stated that the Bar and 
people of Hand county are in favor of the proposed circuit do not 
represent the sentiments of the people. 

Right in this connection I would like to make an explanation; 
Mr. Hole who came down here to represent his county, and he met 
a proposition from the delegates living north of the Second Standard 
of this kind ; that this District should be composed of the Counties 
of Sully, Hughes, Hyde, Hand, Beadle, Kingsbury, Potter and 
Faulk ; brought that proposition from one of the delegates from the 
County of Hand who sits in this Convention now ; who said they 
had counted up the votes which would be in the Judicial Convention 
in that Circuit and that they wanted votes enough to defeat two 
counties, Beadle and Kingsbury. We told them they could have 



JUDICIAL CIRCUITS 219 



them so far as we were concerned- we wanted to be connected only 
with counties in which decent members of the bar practiced back 
and forth. So far as the judgeship was concerned, if Hand County 
had a man they wanted to present for judge, all right, or if Hughes or 
Sully or any of them, that was all right. We say if we cannot get 
those counties, we want a smaller circuit; if it is not necessary to 
do it to take off a county, why let it be done. We do not know 
what the Convention will do but this is practically what we want; 
we want a circuit running along the Dakota Central railroad ; if it 
is necessary to add to that circuit, the County of Potter and Faulk, 
or if it is necessary on the other hand to add the County of Buffalo 
or the County of Jerauld, very well. Now, I say this came from the 
Bar of Hand County, themselves; it didn't come from the Bar of^ 
Beadle County, although I was there in Miller on that day; I had 
nothing to do with this petition ; made no suggestions at all except 
to say to them that the people living south of the Second Standard 
were satisfied with their Circuit; that it w r ould be impossible and 
impolitic to take six counties in that circuit as the delegates had 
agreed; and they asked me when I went to Miller on that day, (I 
say I was there on private business ; nothing connected with the 
Judicial Circuits) how it came that this Sixth Circuit had been 
formed in the manner and shape that it was ; wanted to know why 
it was that we left a tract east of them side by side with them ; why 
I would permit anything of that kind without raising my voice ; 
I told them what the situation was and they said with one voice 
we will petition the Constitutional Convention at Sioux Falls that 
justice may be done the people of this county. 

I say there is not a lawyer in this county, not a man in that 
county with possibly two exceptions that are in favor of the Sixth 
Circuit as proposed in the majority report of the Judiciary Com- 
mittee. I say that it is not the evidence I have presented to this 
Convention as to the sentiment of the people of that county in 
relation to this matter. On yesterday, those in the minority, pre- 
presented to the Chairman of the Judieiary Committee, the fol- 
lowing petition, substantially: 

Sioux Falls, July 23, 1889. 

We, your petitioners respectfully represent that we believe 
there is much dissatisfaction with the judicial apportionment as 
proposed by your Committee as to the districts made up of the fol- 
lowing counties, to-wit: Campbell, Mel'lierson. Walworth, Ed- 
munds, Sully, Hyde, Hughes, Hand, Beadle, Kingsbury, Faulk. 



220 SOUTH DAKOTA DEBATES 1889 

Potter, Brown, Miner and Day; and in order that full justice be 
done, and full consideration be given that section, we, the dele- 
gates within said territory, respectfully ask that the proposed 
judicial apportionment report as to those counties only, be re- 
considered. Signed by Dickenson.Couchman, Hole, Stoddard and 
others. 

Potter, Hughes, Hyde, Sully, Hand, Beadle and Kingsbury 
have sent petitions and other papers in connection with the matter 
and will be here tonight. C. G. Hartley, of Hand County, I have 
been told Hartley now votes for the substitute. I have it over 
his own signature that the people of that county are opposed to it. 
I understand that he has received no new light from Hand County 
since yesterday. I have also some evidence from the County of 
Hyde. There is D. A. W. Perkins. I presume that when these 
gentlemen signed this petition they knew what counties composed 
the Sixth Judicial Circuit ; I believe when they signed this petition 
they knew where were located the Counties of Sully, Hughes, Hyde, 
Hand, Beadle, and Kingsbury ; I believe they knew these things 
and until there is some better evidence before this Convention, then 
this letter from one single member of the Bar, I say I believe it 
would be injustice to the Hyde County Bar to say that they did 
not know what they were asking for when they petitioned this 
Convention as they did upon this piece of paper, substantially in 
these words: 

"We, as members of the Bar of Hyde County, represent to the 
Constitutional Convention that the proposed judicial district to 
which we are attached is very unsatisfactory, and will be very in- 
convenient and expensive for us. We therefore respectfully ask 
that our county be attached to Sully, Hughes, Hand, Beadle, 
Kingsbury and Miner counties for judicial purposes." 

I think the signatures to this document include all but two 
attorneys who live in Hyde County, Mr. Perkins and Mr. Price, who 
is at present in Bismarck ; and so I say that the evidence from Hyde 
County is to the effect that they desire to be placed in a judicial 
circuit as provided by this substitute. 

A good deal has been said in this Convention about center of 
Huron and Aberdeen, but I think if you look at the majority 
report you will find another center in Codington or Clark Counties. 
I think if you count the votes as has been argued before this Con- 
vention you will find that Codington, together with the counties 



JUDICIAL QRCUITS 221 

north, can outvote the counties south; or take the vote of Coding- 
ton or Clark, with the vote of the other counties south and they 
can out-vote the counties north. So that it is a law that cuts both 
ways, if there is anything in it. But I say that I do not believe 
nhis Convention at this time is going to build up judicial circuits 
in a manner to favor any particular locality, in a manner to favor 
any particular man for the honorable position (I say the most 
honorable position a man ever is elected to in this world) that of 
judge of our courts. I say I do not believe this Convention at this 
time is going to cut up the Territory in such a manner as to entail 
endless expense and endless inconvenience to the people for the 
purpose of giving some man over in Edmunds county or some 
other county the fancied advantage. I do not believe that this 
Convention will do it. 

Let N us look at these counties formed into circuits by this sub- 
stitute. We will start with Day county. Day county speaks as 
one voice, one man against the Third Judicial Circuit. They say 
they have to travel forty-five miles by stage in order to reach the 
center of the Judicial Circuit. 

Another thing I would like to call the attention of the Conven- 
tion to in this connection. 

There must be something behind this, there must be some- 
thing rotten about this matter when all of these counties speak with 
one voice saying they do not want to go into a judicial circuit 
known as the "Codington Circuit". We hear from Marshall, and 
what does Marshall say? Marshall says, "We desire to go into a 
district with Brown County". Day says the same, MclMierson 
the same, Campbell the same, Walworth says the same, Brown 
says the same; Edmunds says they want a judge over there and 
that they cannot vote down these other counties, six counties. 

If this proposed circuit, as proposed by the substitute, has a 
perfect railroad connection with almost every other portion of 
tlu- ( ircuit, atid we are told time and again while this Committee 
a1 work, that they were opposed to the circuit including the 
counties of Beadle, Spink, Brown, and Marshall. \ow.what do 
they want, and where do they want to go; what are their desires? 
I say they told us they were opposed to this cin uit and I- I 

ink-men upon the Committee; the Chairman I have always 
found to be an honest man. 1 say I believe it. 1 find the men of 
Marshall County are opposed to this circuit; Brown county is op- 



222 SOUTH DAKOTA DEBATES 1889 

posed to the circuit; Spink county is also opposed, and Beadle 
county is opposed to this circuit. We find Hand county is opposed 
to the circuit they are in; we find that Hyde county is opposed to 
that circuit and McPherson county is alos opposed and Campbell 
county is opposed to the Circuit, and also Walworth county. We 
find Kingsbury county also opposed to the circuit they are in ; we 
find Brookings, Deuel, Hamlin, Clark, Codington, Grant, Roberts, 
are perfectly satisfied. We are willing to leave them as they are 
we do not want to force any one of these counties into another 
judicial circuit. We say they have no right; there is no justice in 
coming before this Convention and asking that Kingsbury county 
be attached to a circuit it will take them three days to reach the 
center of that circuit and come back home, when they can go to 
any portion of the Judicial Circuit composed of the counties of 
Kingsbury, Beadle, Hand, Hyde, Hughes, Potter, Faulk, in one 
day. 

Now, in relation to the letter which was read by Mr. Sherwood, 
from Kingsbury County. It seems that it is uncontradicted that 
the Bar meeting, consisting of two members of the Bar only, one 
elected Chairman and the other was Secretary. That was the 
petition they presented to the Judiciary Committee as expressing 
the sentiment of the people of that county. I believe, Mr. Presi- 
dent, and gentlemen of the Convention, that the majority of the 
members of the Judiciary Committee were with us, were in favor 
of doing what is right and justice so far as the people are concerned 
living in the counties lying north of the Second Standard. This 
report is not signed by all. Some who signed it said they signed 
with a mental reservation that if they were not sure that these 
counties lying north of the Second Standard were not fairly dealt 
with they would see that they were fairly dealt with on the floor 
of this Convention. 

Now in relation to the statement that during the last five or 
six years these centers have monopolized the time of the court ; 
that the Court laid around Beadle and around Brown county and 
that these outlying counties did not get their* fair proportion of 
the services of the Judge. I say that I know that is a mistake. 
I know that Codington has had more days' court during the last 
three years, I know that Codington county's calendar is in better 
condition than is Beadle's. I know that the county of Hand is 
in better condition than Beadle county ; I know Hyde is in the same 



JUD CIAL CIRCUITS 223 



condition; I know Spink county is in the same condition. But 
there are gentlemen representing these counties who are here and 
who can speak for themselves. I believe it is the desire of this 
Convention to form these judicial circuits so that they will satisfy 
as many of the people residing within their limits as possible. 
The majority report provides a Fifth Judicial Circuit that is ob- 
jected to by every county in it. The majority report submits to 
this Convention the Sixth Judicial Circuit, which is opposed by at 
least five or more of the counties that it contains. The third by 
at least two. Now, I reiterate that Sully, Hughes, Hyde, Hand, 
Beadle and Kingsbury, lying on this line of road are in favor of 
a circuit such as proposed in this substitute. If I am in error I 
would like to have some gentleman representing these counties 
call attention of this Convention to it in some way. The gentle- 
man who spoke for Hand county said the people were opposed. 
Last night he said he did not know what the wishes of the people 
were. The other gentleman, over his own signature yesterday in 
his own handwriting, said the people of Hand county were op- 
posed to the counties proposed by the substitute. 

Mr. Couchman called to the chair by the President. 

Mr. Hartley: Gentlemen of the Convention; I would ask the 
same question ; who is it that represents Hand county ? Is it the 
two men who were elected or is it the gentlemen who were elected 
from the county of Beadle? Before the people of Hand county 
asked me to run for the position which I now occupy, it was gen- 
erally conceded to be the understanding that anything of the nature 
of a shoestring arrangement of judicial districts should be voted 
down. I came down here with that understanding. Two petitions 
were sent down. They were not sent to either of the representa- 
tives. Now, gentlemen of the Convention, you can see the forecast 
of this thing. These petitions were gotten up under the dictation 
of the people of Huron, so I am credibly informed, and were not 
forwarded to the representatives of Hand county. If they were 
not honest enough to represent their own people in the Convention, 
why did they elect them? The men that got up that petition and 
circulated it were asked by the business men of Miller to send it. 
to me. 

A Voice: It is evident that Hartley is a Democrat. (Laugh h-n. 

Mr. Hartley: It was not done. We were ignored by the man 
that got up that petition. I will say right here, without fear of 



224 SOUTH DAKOTA DEBATES 1889 

contradiction, you go to Hand county and talk with her people 
and you will find that petition does not represent the people of 
that county, and if I had time to explain these conditions of affairs, 
I would bound by my word as an attorney, there is a different con- 
dition on the road here now. These petitions were not gotten up 
by the people of Hand county. I have it upon very good authority. 
While this is in the handwriting of different persons it was not 
signed by the attorneys of our Bar ; the petition that was circulated 
in our county first was included in the county of Hyde, after this 
petition was circulated and all the signatures upon it but two, 
a copy, not the original, was sent afterwards. 

In the evening the members of the bar, or some of the members, 
held a consultation. They were not satisfied with the man who 
brought that petition down here, they decided that they were 
sorry that they had signed it. There is two men here now who 
signed that petition, : two men who are acquainted with the county 
and they gave myself and my colleague that impression. That 
after they looked over the matter they were not satisfied and that 
they decided to present us with a different statement. I have 
lived there seven years; Mr Anderson has the same, and we know 
the people of that county. That petition does not represent the 
sentiment of Hand county. After we had received that petition 
and before I had heard the balance of the report, and belore I 
received the letters last night, I gave it weight. I felt inclined to 
obey the request of the bar, while I did not consider either Mr. An- 
derson or myself had been properly treated. I said to one of them 
that this district would be satisfactory, that is true, I did say 
that, but what else did I say? Did I not say, I feared they would 
come before this Convention with a different arrangement; that 
I insisted that you should get together and settle the matter and 
not have any conflict on the floor, that we ought to agree among 
ourselves and stop our controversary, for just as long as Beadle 
County wants Hyde County in that circuit, why, there is going 
to be trouble. They must have a shoestring district; they must 
have their own town accommodated the same as it has been. 

. It went out over our district that Huron must not only have 
the center, but must be mistress of the situation as in the past. 

In regard to the new arrangement of this district, the arrange- 
ment that is proposed by this substitute, if the counties can agree 
upon it there will be no trouble. Can we agree? Spink county 



JrmciAL CIRCUITS 225 



it does not satisfy; it does not satisfy Faulk; it does not satisfy 
Sully, Potter, Hughes. How many counties is that? Right on 
the other hand east of us, they are dissatisfied. I will say in regard 
to this, that as far as I am personally concerned, and supposing 
Codington county is satisfied, I am satisfied. But it would not 
be satisfactory to our people. While I am sorry that this condition 
of affairs should exist, I think the people of Hand county are ca- 
pable of saying what they want without being dictated to by out- 
side parlies. I will say further that I have sent word at different 
times to the members of the County Bar, what would be the ar- 
rangement. I know the arrangement would be substantially as the 
Committee reported. There was a good many Hand county folks 
here last week. It was talked over. If there was any dissatisfac- 
tion they were requested to speak out. I heard no word. The 
man who brought this petition down here came down under the 
instruction of a number of men that signed it. I am going to vote 
for the original report. I am going to come down right now and 
vote for the original report. We may as well say Hand counly is 
Hand county as well as say it is Beadle county. It is well under- 
stood by the members of the Bar of the county that once a man is 
elected in that District, to the bench, he serves the people. No 
man in that entire country up there will get on the bench unless 
he promises to serve the people, not to serve one town. He has 
got to hold court in the various counties and do his duty ; that is 
all the people are arguing for up there. They do not care who he 
is, whether Democrat or Republican, they say. A majority of 
the people have said to me repeatedly that they do not want to go 
to Huron any more. I have gone to Huron and have taken two 
days or over on a very unimportant matter. If you think I am going 
to take the expenses of making such a trip out of my pocket, you 
are laboring under a delusion. But, if we take it out of our clients, 
they begin to want a court at home. While this arrangement 
may not suit some of the counties, I think it is the best we can do. 
Personally, I think they have not given us a fair show. There are 
other counties who have fault to find, that they have not receivol 
a fair show in the matter of services of the judge of the district. 
On the other hand we have paid that Judge $1500 a year to go 
around the circuit to hold chambers, so as to save clients unnecessary 
expense. That did not afford the relief sought; that is why I 
complain. I am well acquainted with a great many Huron people; 



226 SOUTH DAKOTA DEBATES, 1889. 

I never had any trouble with those people or with Huron attorneys. 
My associations with the people of Huron have always been pleas- 
ant, but I am tired of being compelled to go there every time I 
want an 'order signed. Again what are you going to do? Then a 
proposed county turns around in their position; you are as dis- 
satisfied with the new county as with the old arrangement. Last 
night I was invited to attend a meeting of those delegates ; I under- 
stood all the delegates from the dissatisfied counties were invited 
in there. They were not all invited. But since this happens, what 
are you to do but accept what the Committee has given us ? 

Mr. Cooper: The gentleman has asked is it necessary to come 
in from the outside to represent Hand county? I leave that to 
the Convention. I would like to ask this question: If any gentle- 
man who signed that petition of the Hand county Bar has sent word 
by letter or come in person, or sent word by anyone that he did not 
want to be in the circuit with Kingsbury and Beadle counties ? I 
will ask if any lawyer in Hand county, anywhere, or the gentleman 
who has just left the floor ever said he did not want to be in the 
district with Kingsbury and Beadle counties. We say that no 
attorney who has signed that petition has declared that he did not 
want to be in a district with Kingsbury and Beadle counties, but 
some said they would like a circuit out west heavier than those 
that had been east and made that objection. It was stated that 
Faulk and Potter counties had objected. I say I am not wrong 
on this matter, I say I know what I am talking about and no 
gentleman in this Convention will dispute me. 

It seems that the gentlemen have a grievance, for instance, 
Marshall and Day counties. I understand there are gentlemen 
here who are representing those counties; I understood that there 
are gentlemen here who are representing Brown, McPherson, 
Campbell and Walworth counties. I have understood these gentle- 
men to say if they wanted an order or injunction that they objected 
very much if they lived in Campbell county, to travel by rail to 
Aberdeen and from there eighty miles south to the city of Huron, 
and from there one hundred and twenty miles west to the city of 
Pierre to get their order. It has been stated that the Legislature 
would, sometime in the future, grant circuit jurisdiction or vest 
County Courts with Circuit jurisdiction. 

That Mr. President, and gentlemen of the Convention, will, 
in my mind, depend to a great extent upon the circumstances as to 



JUDICIAL CIRCUITS 227 



what situation these county courts will be placed in and what kind 
of men are elected to fill those positions. Whether or not they are 
capable men, whether or not they are men who are capable of 
performing the duties of the office. If they are, I presume that 
certain jurisdiction will be vested in these courts; otherwise I 
presume likely it will not. And if it is not, what will be the result? 
You will have trouble through these Judicial Circuits in the future 
as we 1 as in the past. A man will have to travel over how many 
different lines of road and through how many circuits? I say 
this is a question that should be thought of by this Convention 
before they pass upon the question. In the proposed circuit of 
the substitute, what do we find? We find that these counties are 
nearly all contiguous, nearly all ^connected by direct lines of 
railroad ; we find that the counties lying west of Aberdeen have 
complete railroad connections with the county of Brown, Marshall, 
and Day; we find the counties lying west of the county of Kings- 
bury have connections throughout the Circuit with the counties 
lying north, the counties of Potter and Faulk, have direct com- 
munication with the balance of the Circuit. I say again, the 
gentlemen might not have heard what I said before I repeat it 
now, I want you to say whether or not members of the Hand 
county Bar are opposed to the proposed plan, or prefer Hughes, Sully 
Hyde, Beadle, and Kingsbury counties. I ask if any gentlemen 
of Hand County were ever opposed to the Judicial Circuit com- 
posed of Sully, Hughes, Hyde, Beadle, Kingsbury and a couple 
of counties lying north or south. 

Mr. Humphrey: If the gentlemen of the Convention will 
pardon me for a moment, I will attempt to clear away some of 
this rubbish. In the first place I congratulate myself in that what 
I may say is addressed to a body of gentlemen and not to a 
petit jury, who are selected under them, and in consequence of 
this that this argument will have more influence with you than 
with a jury. Further than this, it will not he necessary for me to 
call your attention to the fact that positive assertion is no more 
argument than that a check is just a slip of paper. It has been with 
considerable amusement that I listened to and witnessed the as- 
surance that the gentlemen from Beadle county, the extra- 
ordinary assurance that they have shown in pleading for othrrs. 
and while they include Beadle county among the list of dissatisfied 
counties, they have not called your attention to a single ground for 



228 SOUTH DAKOTA DEBATES 1889 

that dissatisfaction, not a single ground. Their solicitude is 
remarkable in that it refers only to others. While I do not descend 
to insinuations as to the motives of others, that alone would in- 
dicate a motive of their own. We can but infer that the gentlemen 
from Beadle county must have some cause for alarm to be connected 
with Brown county, and if it is true, why should they not immed- 
iately contribute to smaller counties the same fear of being con- 
nected with them. The gentleman who first occupied the floor 
from Beadle county said that there can be nothing of the nature 
of compactness in a district 130 miles long. Well, the district, 
under the apportionment made by the Committee of which Beadle 
county is a part, is 120 miles long. These are small inconsistencies, 
to which I call your attention. Another amusing thing, to my 
mind, presented by the gentleman who first occupied the floor from 
Beadle, is this: He, through some stretch of imagination, is able 
to discern some difference between the duties of the delegates who 
are on Committees and those who are not on Committees. I came 
here representing a locality ; I came here representing all and each 
of the localities; I know no difference in the discharge of my duty, 
either as a Committeeman or as a member of this Convention. The 
gentleman who last had the floor from Beadle county, assures us 
that Spink county would have reason, as he terms it, to "kick" on 
the proposed substitute, he admits that others have reasonto "kick" 
on the plan proposed, but has shown no such reason why Beadle has 
any reason to "kick" under the plan as proposed by the Committee. 
It is told you by the Chairman that the Committee devoted most 
careful consideration and great industry in endeavoring to present 
to this Convention a report that would meet the approval of the 
Convention. He told you they had considered every proposition 
that had been brought before it, and that the Committee met on the 
very evening of the very day they were appointed and they gave 
notice that their doors would be open to members of this Conven- 
tion and notice was given where they met from time to time and 
there was no time but what those doors have been open for all 
who wished to address the Committee during its session for a 
period of about. three weeks. I was amazed by the statements 
made here and am confident they must have been unguarded 
statements. It is certainly an erroneous statement that they had 
not had an opportunity to make their arguments before the Com- 
mittee. If anyone attempts to impugn either the motives of this 



JUDICIAL CIRCUITS 229 



Committee of this Convention in saying or implying in any sense, 
a dishonorable motive on the part of this Committee it is an insult, 
not only to the Committee, but one to the Convention. As our 
Chairman informed you, we considered first, carefully the powers 
of this Convention; also the expediency, and next the necessity of 
enlarging these districts. There was some diversity of opinion; a 
large majority were of the 6pinion, and that opinion was founded 
upon the intelligence of the Bar, for other members of the Bar 
were before that Committee, not only from the Convention, but 
without. The question of expediency bore also upon the question 
of the powers for this reason, it was simply a question of doub ,a 
large majority feeling the power was clear and distinct and at most, 
but open to a question of doubt resisted the expediency of increasing 
the districts, that it would interfere with the President's admitting 
us. I wish to indicate the care that was exercised. These ques- 
tions were weighed as carefully as they might be. What would 
be the effect of increasing the facilities of the. court? It was in 
view of the added facilities under the Constitution that it was finally 
determined by a large majority that there was no great need of 
increasing the facilities at the present time. During all this time 
that these gentlemen were insinuating that there were political 
motives controlling the Committee I will simply say this, that there 
is no doubt that there are many ambitious towns in this State 
and many people aspiring, perhaps among those facing yourself, 
Mr. President. So. far as I know this was not the motive that in- 
fluenced any man upon that Committee. The reason that it \vas 
held at the lowest possible estimate of necessity, was this, that at 
present we had to make our apportionment on a vote. No satis- 
factory apportionment can be made except by publication under 
a census. The census will be taken in 1890. We will then have 
a basis upon which a re-apportionment can be made that will bo 
satisfactory to all. Therefore, it was not considered expedient 
or necessary by the Committee that they should attempt at the pres- 
ent time to provide for the future of Dakota, simply for the near 
future during the period previous to the taikng of this census. 
As to the plan upon which the form of the districts was determined, 
that was the question upon which there seems to have been the 
most charges made concerning corruption on the part of the Com- 
mittee. It occurs to me that you may not all know what reeently 
appeared in the Aberdeen Republican, as erting that that Com- 



230 SOUTH DAKOTA DEBATES 1889 

mittee was packed. Well, I will say that when I first read the 
names through of the members-elect of the Convention, I found 
that there was about one-third of the Convention, Democrat. I 
know six Democrats of the Convention on that Committee. I will 
add, though it may not be pertinent to the argument, that while it 
is plain that these north counties were unrepresented upon that 
question, events show why. The most' important duty before this 
Convention was a division of the archives, assets and liabilities of 
the two states. That was the paramount duty. Who was to do 
it? Simply a commission of seven, over whom we had no control. 
We could not dictate to them in the slightest degree. Who con- 
stitute that Committee? Was the north portion of the State 
ignored? They had two out of the seven members of the Com- 
mission. They wanted three. It is said that the gentleman from 
Brown county claims that they did not wish it, but as I understand 
it there was two candidates from Brown county for the position. 
One got it, the other got left. 

Now, in regards the forming of these districts all that can be 
said is, that the forming of the districts is fixed by the express 
terms of the Constitution of the Convention of 1885. That Con- 
stitution says that these districts shall be compact in form. The 
very men who drafted that Constitution approve of the districts 
as reported by the Committee. They are compact in form in the 
nature of being square or as near square as may be. Mr. Presi- 
dent, while we have been guarded step by step, we have progressed 
in our duties to avoid stepping over the bounds in the least par- 
ticular under the provisions of the Omnibus Bill, feeling that we 
had no right or power to amend the Constitution in any way or 
shape except as provided by the provisions of that Bill. When we 
have exercised that care in the discharge of all our duties so far, 
shall we begin now to violate its spirit? Gentlemen have stated 
here that there was apparently quite a large minority in that Com- 
mittee opposed to the report. Has it occurred to you that if that 
was true that it was strange that they have no minority report? 
How is this matter brought before the Convention? In any way 
implying disagreement in the Committee rooms? Mr. President, 
this opposition is instigated by those who have shown themselves 
so solicitious with regard to the convenience of the others and so 
ready to assert what the other's wishes are. The gentleman from 
Beadle should have presented a minority report and he would 



JUDICIAL CIRCUITS 231 



have stated his reasons The facts of the case are that it is im- 
possible to please all, as glad as we would be to do so. Your Com- 
mittee used their every endeavor to adopt a plan that would please 
the 'greatest number possible. Every possible plan that could be 
devised has been tried and tested and we finally determined upon 
a plan of a vote of apportionment that would please all but a few. 
It is a matter, simply an impossibility to please everybody. Where 
we find a single county, as glad as we would be to accomodate them, 
carrying out the spirit of this Constitution, we would be glad to- 
do so, but in the discharge of duty we should not hesitate even upon 
this point to do our duty and make an apportionment that would 
accomodate the greatest number. They have asserted that the 
substitute accomodates more than the majority report. It is 
claimed a portion of the counties whose voice they claim to speak, 
but secured it by sending out to get it. It is presumed that the 
delegates on the floor of this Convention, who represent those count- 
ties know the needs of their people and will -not prove recreant to 
the trust imposed upon them. I will say in this connection also, 
in conversation with a gentleman representing Campbell, who 
will vote for the substitute in representing the voice of his con- 
stituency, that he told me that they went to Aberdeen in preference 
to any other place to attend court. When I asked him why they 
wanted to go there or anywhere else under the provisions of the 
Constitution the judges were to go to the people of the counties 
and not the people to go to the judges as heretofore. He replied 
that since they learned that fact they had no anxiety to go to 
Aberdeen to attend court. Another reason is this, Mr. President; 
these little counties and these large counties especially have almost 
a year's calendar on hand and in the new counties of the west it 
will be as in the past that they will get court at the convenience of 
the larger counties. It does impress me as somewhat strange that 
these entire counties should be afraid to stand alone, why they 
should wish to have tied to them counties by the half dozen or more 
which I think is one of the incomprehensible things. 

The people west would say almost in one voice, we favor the 
adoption of there port presented by the Committee ; they are able to 
stand alone and they want judges to look after their business and 
as yet their business is not so extensive but what a judge coming 
in there could keep up with any counties in their district, except 
perhaps Hand and Hughes with an accumulated docket. I was 



232 SOUTH DAKOTA DEBATES 1889 

surprised by the argument by the gentleman from Beadle, on this 
floor. I should not refer to it, though the argument was presented 
to the Committee, and that is why I was surprised that it was 
presented here after it met with the reception it did in the Com- 
mitte room, I am surprised that it was presented on this floor and 
had it not been so presented I should not have referred to it. It 
was this: That it was wrong and un-desirable to both parties 
who had been together before now in business relations to be 
separated and that the counties who had been associated with 
Beadle wished still to remain with Beadle because all was har- 
monious between them and everything working so nicely. What 
stuff! I want to say, gentlemen of this Convention, that I have 
no personal motives or any personal interests to serve in the 
formation of these districts. It is my purpose, as under my oath, 
it is my duty, to use my best influence in securing these districts 
as I believe best meet the requirements of the Constitution and 
best serves the interests of the people. I will say that so far as I 
know we have no candidate for judge in the county from which I 
come I am certainly not eligible, not being an attorney. I 
will say further, no matter from what county the judge is elected 
that no one county, Mr. President, will have more court or more 
chambers than any other county. 

Mr. Wood: As a member of the Committee, I contended all 
along that eight circuits were not enough. The difficulties that we 
are now experiencing is a difficulty that I before contemplated, 
and if the state were to be divided into nine circuits I am satisfied 
it would not be too many. I am also satisfied that such a division 
should have been made as to completely remove this entire difficulty. 
There is some inequity in this division contended for, contained in 
the report of the majority Committee. There is some inequities 
contained in the substitute. It never can be arranged in this way 
and get a satisfactory division of the circuits of this State. In my 
judgment, having had twelve years experience at the Bar in this 
Territory, in my judgment, these circuits are not sufficient. While 
they may answer for a time, I think the Convention is giving the 
State an insufficient number of judicial circuits. I therefore move 
that this report and the proposed substitute be re-submitted to the 
Judiciary Committee with instructions that they report on the 
morrow, recommending the creation of nine circuits. 
Mr. Van Tassel: I second the motion. 



JUDICIAL CIRCUITS 233 



Mr. Fellows: I rise to second the motion of the gentleman 
from Pennington County and in doing so to say this, that in my 
opinion nine districts will soon be insufficient to accommodate the 
business that they will have to perform in the administration of 
the justice as it ought to be administered in the courts of this 
State. That it will require at least nine circuits and further it 
would afford us a happy solution of the difficulty we have gotten 
into here today and at the same time satisfy all localities. I most 
heartily second the motion of the gentleman from Pennington. 

Mr. Sterling: I would say, as stated in the report, that the 
Committee have also had this subject under very careful consider- 
ation. It was with reluctance that some of the members of the 
Committee yielded to any increase at all. It was assented to, I 
believe, that one additional circuit in the Black Hills country would 
be sufficient to transact their business there. It was said by a 
good many members of the Committee at first that five circuits 
were satisfactory to themselves as shown, but that the increase 
would be sufficient if the State was properly apportioned in the 
districts in which to do business. I think that this motion to add 
another district for the territory east of the river ought not to be 
raised. 

Mr. Humphreys: The Committee, as the Chairman has stated, 
did most carefully consider that matter. The gentleman making 
the motion and the gentleman seconding it were the only two that 
I now remember who finally favored the idea of having nine circuits. 
It was the judgment of the Committee that that would not be the 
sense of the Convention; that it would be neither expedient nor 
necessary 'o extend the number beyond eight. I doubt if it would 
be possible to arrive at any other condition than now exists, if 
we did have nine circuits. I move that the motion of the gentleman 
from the Hills be laid upon the table. 

Which motion was seconded. 

The President: You have heard the motion. Mr. Woods, 
of Pennington, moved that the majority and minority reports 
be referred back to the Committee for revision; Mr. Humplm-vs 
moves that the motion be laid upon the table. Are you ready for 
the question. 

The motion to lay upon the table prevailed. 

Mr. Sterling: I have been a little bit surprised, gentlemen, 
at the assumption that has been manifested by some members of 



234 SOUTH DAKOTA DEBATES 1889 

the Convention in favor of this amendment or substitute, and 
who have spoken upon that side It seems to be a remarkable 
solicitude for the welfare of the other counties that is exhibited 
by these gentlemen and you will notice, gentlemen, that the most 
of the opposition to the majority report and the second in favor of 
this amendment comes from a certain section, from a certain 
county. It eminated from that same county in the Committee; 
it eminates from that same county here in the Convention. These 
gentlemen deny and protest it is not for political purposes that they 
object to the majority report, and say that they do not know that 
they have any candidate for judge. That there is nothing of that 
kind. I will ask you, gentlemen, if at the coming election there 
is no other political question to be determined than the judgeship, 
or whether that may be any motive to base this particular form or 
district upon as reported by the majority of this Committee. But 
the gentlemen come upon the floor and make a strong point as they 
seem to make, as they would have this Convention believe to be 
that the counties to the west of the county of Beadle as against 
Beadle and Kingsbury counties will overcome Beadle and Kings- 
bury counties in Convention, in the nomination of a judge what 
does that amount to? They are not so particular as to that but 
they have other interests at stake. What does it mean? Can 
we not see it? To have these counties west of them entirely tribu- 
tary to fhem, their political preferment to be included in that same 
district which they have mapped out. It may be capital for them 
to deny their reasons and say there are no reasons for it. 
What do we make these judicial districts for, gentlemen of the Con- 
vention? Is this Committee to be in the despicable business of 
making out circuits to gratify the aspirations for judgships? I 
say that is one of the questions or rather influences that this Com- 
mittee had to contend with, guard against, while in session. It is 
one of the very things we will, in Convention, have to guard against. 
The opposition, most of it, to this report, comes from a county that 
for the transaction of business is one of the very best circuits of 
South Dakota today, and they dare not deny it. Four counties in 
the circuit and every town in it of "free access to any judge from 
whatever part of that circuit he may come. They cannot say that 
each of these counties shall not have its reasonable share of his time 
and attention, let him come from where he will. Then gentlemen, 
it must be from some other motive than the discharge of their 



JUDICIAL CIRCUITS 235 



business that these gentlemen from Beadle county oppose this 
report and I think you are by this time aware of it. They pretend 
to speak the sentiments of these counties around them. I ask 
you if they speak the sentiments of Kingsbury or that of the counties 
west of them. From letters from a district attorney of Hand 
county, in which he calls attention to the very petition presented 
by tne gentleman from Beadle, in which he says that they made a 
mistake and desires that their names be cancelled therefrom. 
They pretend to speak for Hand county in fact, made what would 
seem to be the strongest argument. The gentlemen from Hand, 
delegates on this floor, whose opinion you are bound to respect, 
say they are opposed to the minority report. What else is there 
in this? Will the gentlemen deny that their petition, signed by 
the attorneys of the Bar of Hand county, has been followed here 
by the men who signed it, and have told the members of the Com- 
mittee and members of this Convention that they are satisfied 
with the district as embodied in the report of the Judiciary Com- 
mittee? 

Mr. Sherwood: I deny that any gentleman has done anything 
of the kind and you may publish it. I heard it told, and told by 
other gentlemen who have been told the same thing. I simply say 
that I am in duty bound to correct the impression that these 
gentlemen from Beadle try to leave in reference to Hand county. 
I say I know the delegates here from Hand county reflect the senti- 
ment of the people there. What else is there in this report that is 
not satisfactory? I believe, gentlemen, that we have disposed now 
of the question in reference to Beadle county and the counties west 
of Beadle. 

There is some opposition from the north, it is opposition that 
is entitled to command respect. The gentlemen making that op- 
position do so without reference to capital purposes or judgship 
purposes or any other unworthy motive. The Committee have 
tried their best to satisfy them but we found that with the other' 
interests of the other districts to make, we could not do any better 
than we did do. Then is it so very inconvenient, so distressingly in- 
convenient for all those gentlemen in the north ? Look at the map 
and see. On the east is Day county. The gentlemen from Day 
county protest. What kind of an arrangement will we have 
yonder when admitted as a State? We shall undoubtedly have for 
these counties two terms of court each year in each of them What 



236 SOUTH DAKOTA DEBATES 1889 

are the communications that Day county would have with the other 
counties around her? She will have Grant county on the east with 
two terms of court yearly at which her attorneys can transact 
business. What connection below? Clark county with two 
terms each year at which her attorneys can transact business, with 
which they have direct communication. He would go from 
Webster to Bristol and from Bristol to Elrod, which is about 
seventy miles from Clark. Is that very inconvenient? Those 
trains connect What else is there about it? Why two terms 
of court in Day county itself, with good railroad connection, and 
if they have any great stress they don't have to walk, but can take 
the train eighty miles over to Watertown and transact their busi- 
ness. So I say as against the arrangement that this Committee 
has made, with all the work they have done, you will not with those 
advantages that appear so plainly upon the map, better th : con- 
dition of the county of Day. I do not think you will set aside this 
report of this Committee. What about Kingsbury? There is 
objections from there. I say exactly the same argument obtains 
for the county of Kingsbury. It has Brookings on the east of it 
with two terms of court a year. It has its own two terms of court 
a year at which the attorneys may attend and transact their busi- 
ness. If you wish to go to Clark, the trains are reasonably ac- 
cessible to the county of Kingsbury. In addition to this, gentle- 
men, it will probably be provided, if the judges do not manifest the 
disposition themselves to do it, by the Legislature that the ,'n- 
equities perhaps referred to by Mr. Van Buskirk, of Codington 
county, will force the matter upon their attention. The judges 
will be required to hold a day in chambers each month 'n each 
county in his circuit, and that with the jurisdiction which may be 
conferred as the gentleman from Codington has said, upon the 
county courts to grant motions and hear motions and chambers 
will still further relieve this dissatisfaction. Let us look at the 
(ther side of the Fifth District, McPherson, Campbell, Walworth 
and Edmunds. 

Gentlemen, I am surprised to hear the cry of distress go up 
and then look at the map. Why, McPherson has no communication 
with Brown county by railroad except down through Edmunds 
county. Campbell turns to Aberdeen as a Mecca and she has to 
perform her pilgrimage by way of Eureka. Walworth goes through 
Edmunds to Brown county, and yet here is a gentleman from 



JUDICIAL CIRCUITS 237 



Edmunds having the most direct communication with Brown 
county through which county these other counties have to go, who 
tells us that they want a district by themselves away. from Brown 
county. It is more than likely they will have railroad communi- 
cation with other parts of the district. There has already been 
'started a road that extends in that direction and which will un- 
doubtedly be completed in a short time, and each county in that 
district will be connected with the other by good railroad com- 
munications. So, gentlemen, I believe that these objections, when 
we come to consider what has been done for the whole state and the 
way the Committee have had to plan and figure in order to satisfy 
the different places and apportion them according to the population 
and according to the communications so far as possible, that this 
Committee report must commend itself to you for your adoption. 

(Repeated call of "Question".) 

Mr. Sterling: I move the previous question. 

Motion seconded. 

Mr. Stoddard: I raise the point of order, I had the floor. 

Mr. Sterling: The motion is withdrawn. I beg pardon. 

Mr. Stoddard: Gentlemen are calling for the question. I 
am not disposed to take much of your time if I could; I am not a 
lawyer or a professional speaker; I have been talked to by them. 
What few remarks I do make I hope I will not get quite so noisy 
as my friend from Beadle and certainly not so excited as my friend 
from Spink. I KNOW I cannot talk so smooth and oily as my friend 
from Faulk. 

There are a few points that I wish to talk about. One is this 
about Beadle county. The most of the talk seems to be of this 
nature that indicates that most of them are partial to Beadle 
county and Huron in particular. Now if that is a fact, we cannot 
help it. Up north there are some six counties in a block with Kings- 
bury down here and Hand that makes eight altogether, besides 
Beadle. We certainly are not responsible for the lawyers of the 
city of Huron. Our counties feel that there is injustice done to 
all these counties and it appears to me that greater injustice will 
be done by adopting the majority report. 

We, from the north, came down here with a clear understanding 
not from any combination as has been insinuated, nothing of 
that kind but by talking and instructions and from the feeling 
all through our counties and Brown county and from all. 



238 SOUTH DAKOTA DEBATES 1889 

We have no petition, but no one denies but what we want it 
as the substitute calls for. Walworth and McPherson certainly do 
and Day. The one exception is Edmunds county. When we 
came down here we understood that Edmunds wanted to go with 
the district as it was at present under the Territorial div;sion. 
But since then my friend from Faulkton has got^two or three letters 
and there seems to be little doubt but that the lawyers of Ipswich 
want to be joined to the Brown county district. 

I present it to this Convention ; is there any sense in saying 
that Edmunds, whose county-seat is only twenty-six miles from 
Aberdeen should oppose the motion. I leave it there, if there is 
any sense in that. 

I want to ask the gentlemen from Codington and Clark, what 
serious objection they have got? This substitute leaves them 
in good form; I ask the same question of Sully and Potter they 
are small counties but have just as good right to be represented 
as any. What serious objections have they to re-districting this 
portion of the State and let some nine counties dissatisfied under 
the substitute that otherwise, if the Judiciary Committee report 
goes through, are opposed emphatically and positively to it. Ex- 
cuse me gentlemen, I don't know but I am getting noisy. 

It brings up another point. Nine counties positively and 
emphatically opposed to the majority report, so called. There are 
some other counties in favor of it and opposed to the substitute. 
But no good, tenable objection has been stated on this floor. 
The gentlemen from Codington and from Faulk and from Clark 
give no substantial reasons why they are not satisfied with the 
substitute. They have told you about shoe-string districts, they 
have represented them stretching from the Minnesota state line to 
the river and how convenient it was to go from one county to 
another. But they have not stated any reason why the wishes of 
these counties up north should not be respected ; I submit that as 
a fact. 

Just one other thing. The gentlemen from Spink seem to harp 
so much upon the fact that the Committee has labored so long and 
continuously while getting up this report. I am not a member of 
that Committee, but I am somewhat familiar with their work. In 
the first place they took about a week to consider the question of 
power, the question of expediency. Two or three of the gentlemen 
said that they had our case in hand and they would do us justice. 



JUDICIAL CIRCUITS 239 



All right, we rest there easy. In the meantime a joke began to be 
passed around. They came, first one, then another, with the re- 
mark, "How would you like Beadle, Spink, Brown and Marshall 
in your district?" It was passed around to everyone as a joke and 
so taken. Nothing was thought about that; thought it was not 
possible to perpetrate such an eternal joke as that upon us. But 
it seems that some of the Committee went down to the Chairman, 
the gentleman from Spink, and spoke of the joke, lo and behold 
the gentleman took it seriously. There was just a few hours labor 
on that entire joke, just a few hours. The most in portant part 
of the whole labor, I understand, was undertaken in those very few 
hours and the beginning of that work was a joke. 

Now, gentlemen, I do not know whether we can count on that 
or not, but certainly we have a most emphatic and positive ob- 
jection to that majority report. We thus appeal to you appeal 
to you for this substitute. It hurts no one at all and everyone 
will have facilities for getting back and forth throughout the dis- 
trict. We thus appeal direct to you, gentlemen of this Convention, 
and I appeal to some of the members of the Judiciary Committee 
also. There is none of those counties that want to go in that 
unless it is Spink and with possibly the exception of Spink none 
of these want o go nto that district. I hope you will do us justice. 

Mr. Clough: I move the previous question. 

Motion was duly seconded, 

Call of "Question" from all parts of the House. 

Mr. Willis: The majority can say whether they want the pre- 
vious question. 

Mr. Lee: I believe we are convinced that we do not want to 
stay any longer. If we stay much longer the "Old Man" will want 
to make aspecch and then he will stay here all night. 

Mr. President: Shall the question be put? 

This motion prevailed. 

Mr. President: Mr. Sterling of the Judiciary Committee 
brought in a report Mr. Spooner of Kingsbury brought in a 
substitute. Now the question is upon the substitute. 

Mr. Jolley : This is an amendment. 

The President: The vote then is upon the amendment. 

The Chair being in doubt roll call was resorted to. 

Mr. Edgerton, of Davison: At this time I desire to state 
to the Convention my reasons for giving my vote in the way I 



240 SOUTH DAKOTA DEBATES 1889 

voted upon this question. It is known, perhaps to this Convention, 
the position I took in reference to the Omnibus Bill, when this Con- 
vention assembled. I have not changed- my attitude upon hat 
question. I believed then that this Convention had no power 
except those powers expressed by the Omnibus Bill. It was the 
charter of the powers of this Convention. That I may not be mis- 
taken I will read the section under which we have the right to re- 
apportion the State. In defining the powers of this Convention 
the Omnibus Bill provides the scope and powers of this Conven- 
tion: "That they shall also submit the articles and propositions 
separately submitted on that election, including the question of 
locating the temporary seat of government with such changes only 
as relate to the main boundary of the proposed state and the re- 
apportionemnt of the Judicial and Legislative districts, and such 
amendments as may be necessary in order to comply with the pro- 
visions of this Act." 

Now, we admit this, if it is necessary to increase the number 
of circuits in re-apportioning the State of South Dakota, then this 
Convention has the power to increase the number of circuits. But 
if it is not necessary to increase the number of circuits then it does 
not necessarily fall within the powers of this Convention as granted 
to us by the Omnibus Bill. There are three inhibitions in the Con- 
stitution in reference to the Legislative and Judicial Department 
so far as the re-apportionment is concerned. In the Legislative 
Department of Article 3 of the Constitution in Section 2, reads as 
follows: "The number of members of the House of Representatives 
shall not be less than seventy-five (75) nor more than one hundred 
and thirty-five (135). The number of members of the Senate shall 
not be less than thirty-five (35), nor more that forty-five (45)." 

There is not a member of this Convention that will claim that 
this Convention has a right to go beyond the limits provided in 
nection 2. In reference to the Supreme Court the limitation in 
that is this: Section 6 of Article V, reads, "The number of said 
judges" that is the Supreme Judges "The number of said judges 
and districts may, after five years from the admission of this state 
under this Constitution, be increased by law to not exceeding five." 
There is not a member of this Convention that will claim that this 
Convention has the power to make four or five Supreme Judges. 
This is a limitation upon our powers; consequently it will not be 
claimed the Supreme Court shall consist of more than three judges 



JUDICIAL CIRCUITS 241 



for the first five years. Under the head of Circuit Judges, the 
limitation, in my opinion, is just as absolute: "The Legislature 
may, whenever two-thirds of the members of each house shall con- 
cur therein, increase the number of judicial circuits and judges 
thereof, and divide the state into judicial circuits accordingly, 
taking care that they may be formed of compact territory and be 
bounded by county lines, but such increase of number or change 
in the boundaries of districts shall not work the removal of any 
judge from his office during the term for which he shall have been 
elected or appointed." The proposition is this: That this Con- 
vention has no power in re-apportioning this State for legislative 
purposes to increase the number of circuits beyond the limit pro- 
vided by this Constitution, nor the number of the House beyond 
that, nor has this Convention the power to increase the number of 
judges upon the Supreme Bench for the next five years; nor, in 
my opinion, have we any power to increase the number of circuits 
except by two-thirds vote of the Legislature. That Legislature 
assembles within ninety days ; that Legislature by a two-thirds 
vote, not by a bare majority, may increase the number of circuits 
to seven or eight or nine. Consequently I am not in favor of the 
motion ; that this Convention has no power to go beyond the number 
fixed by the Convention of 1885, believing as I do that this is one 
of the limitations placed upon this body. I shall be obliged to 
vote against this motion. This question rests with me, not upon 
a question of politics, but upon a question of law ; upon that I base 
my reasons for my vote upon this question. Mr. Chairman, I 
vote no. 

Mr. Humphrey: If it would be allowed, I would ask a ques- 
tion. Would, in your judgment, our increasing the number in 
any manner endanger our admission under the Presidential Proc- 
lamation? 

Mr. Edgerton, of Davison: I do not believe that I would say, 
for this reason: It is a question, I admit, upon which lawyers 
differ; I admit the fact that a large majority of the lawyers of this 
Convention differ with me upon this question ; it being a question 
upon which lawyers may honestly differ and come to different 
conclusions. I do not believe the President of the United States 
will consider it of sufficient importance to bar admission under the 
proclamation. 

The amendment was lost by a vote of 22 ayes and 39 nays. 



242 SOUTH DAKOTA DEBATES, 1889. 

Mr: Hayes: I move this as an amendment to Section 5, by 
striking out the words "from districts". Also to amend Section 
6 by striking out the words "and districts." Section 10 by 
striking out the words "and at the time of his election be a resi- 
dent of the district from which he is elected." 

Mr. Hole: I rise to a point of order; the previous question 
has been called and that has not been settled. 

The Chairman: I think you are correct ; the previous question 
having been moved. 

The Chairman: The question now, is upon the original mo- 
tion as offered by the Chairman of the Judiciary Committee. Mr. 
Sterling, how will you vote? 

A Voice: By ayes and nays. 

Mr. Cooper: I desire to change my vote from aye to no. 

Mr. Heninger: I desire to change my vote from aye to no. 

The report was adopted by a vote of 42 ayes and 19 nays. 

Mr. Wescott: I move the report be made the special order for 
tomorrow. 

Mr. Peck: Is not it adopted? 

Mr. Hole: I move to reconsider this question. 

Mr. Humphrey: I move the motion to reconsider be tabled. 

Which motion received a second, and prevailed upon reaching 
a vote. 

Mr. Willis: I move we do now adjourn. 

The motion to adjourn prevailed and the Convention was 
adjourned until tomorrow, at two o'clock. 



TWENTY-SECOND DAY. 

Sioux Falls, Dakota, July 25, 1889. 

Two o'clock P. M. 

Pursuant to adjournment, Convention convened with Pres- 
ident Edgerton in the Chair. 

Rev. Mr. Clough: Almighty God, our Heavenly Father, we 
thank Thee for Thy merciful providences toward us, and the com- 
forts we have enjoyed. And no was we come to the knotty problems 
in our work, we pray that Thou wilt give us wisdom, and strength 
and discretion, and understanding that all these things may be done 
as they ought to be done ; that we may further righteousness and 
good government in this new State. Guard not only the interests 
of the State, but those who are near and dear to us at home; for 
Christ's sake, we ask these blessings. 

AMEN. 

Mr. Young: I move that the further reading of the report 
as "ar as it relates to the reports be dispensed with.' 

Motion prevailed. 

The "President: Communications and Presentations of pe- 
titions. 

Unfinished business of the previous day. 

Reports from standing Committees. 

Mr. Humphreys Committee on Printing make the following 
report: 

July 25, 1889 
MR. PRESIDENT: 

Your Committee on Printing have had the desirability of put- 



244 SOUTH DAKOTA DEBATES 1889 

ting into the hands of the people, the Constitution, submitted to 
them by this Convention, under careful consideration, have in 
structed me to report that they recommend that this Convention 
do provide for the publication and distribution of 200,000 news- 
paper supplements containing the Constitution and Schedule, 
10,000 of wh'ch shall be printed in the German, and 10,000 in the 
Scandinavian language. 

All of which is respectfully submitted, 

H. A. HUMPHREY, 
Chairman Committee. 

Mr. Sterling: The Judiciary Committee have a report on a 
matter re r erred to it. 

Mr. McFarland sends a report to the Secretary's desk. 

The Clerk reads the report of the Committee on Judiciary 
as follows: 

MR. PRESIDENT: 

Your Committee on Judiciary, to whom was referred the ques- 
tion as to whether this Convention has the legal power to provide 
for the election of a circuit clerk at the October election, direct 
me to report that the Committee, having had said question under 
consideration, are of the opinion that the Convention has the legal 
power to provide for such election, and recommend that provision 
for the election of such officer be made in the Schedule and Ordi- 
nance. 

THOMAS STERLING, 
Chairman Judiciary Committee. 

Clerk reads the report of the Committee on Legislative Depart- 
ment, as follows: 

Sioux Fa'ls, July 25 
MR. PRESIDENT. 

Your Committee on Legislative, to whom was referred Article 
III, entitled, "Legislative Department", has considered the same 
and have compared said Article III with the Sioux Falls Consti- 
tution and the Act of Congress known as the "Omnibus Bill", and 
have instructed me to report the following as Article III of the 



RELIGIOUS TOLERATION 245 

Constitution, and that the same is in accordance with the Sioux 
Falls Constitution and the Omnibus Bill. 
No amendments made. 

A. B. McFARLAND, 

Chairman 
SAMUEL A. RAMSEY, 

B. F. LYONS, 
JOSEPH ZITKA. 

Mr. Hole offered a substitute as follows: 

Sioux Falls, D. T., July 25, 1889. 
MR. PRESIDENT: 

Your Committee on Schedule and Submission, to whom was 
referred, "An ordinance irrevocable without the consent of he 
United States and the people of the State, relating to religious tol- 
eration, public lands, taxation of lands, debts of the Territory of 
Dakota and public schools," have had the same under consider- 
ation and have instructed me to report as follows: 

That the following be a substitute for the above described 
ordinance, and that the following be substituted as Article XXII 
of the Sioux Falls Constitution, as being directed by. the Act of 
Congress, known as the "Omnibus Bill", and your Committee 
recommend that the following be adopted as Article XXII "Com- 
pact with the United States", and that the same be adopted by 
this Convention. 

ARTICLE XXII. 

COMPACT WITH THE UNITED STATES. 

The following article shall be irrevocable without the consent 
of the United States and the people of the State of South Dakota 
expressed by their Legislative Assembly. 

First: That perfect toleration of religious sentiment shall 
be secured, and that no inhabitant of this State shall ever be mo- 
lested in person or property on account of his or her mode of re- 
ligious worship. 

Second: That we, the people inhabiting the State of South 
Dakota do agree and declare, that we forever disclaim all right and 
title to the unappropriated public lands lying within the boundaries 
of South Dakota ; and to all lands lying within said- limits owned and 
held by any Indian or Indian tribes, and that until the title thereto 
shall have been extinguished by the United States the same shall 
be and remain subject to the disposition of the United States and 
said Indian lands shall remain under the absolute jurisdiction and 
control of the Congress of the United States. 

That the lands belonging to citizens of the United States re- 



246 SOUTH DAKOTA DEBATES 1889 

siding without the said State, shall never be taxed at a higher 
rate than the lands belonging to residents of this State. That no 
taxes shall be imposed by the State of South Dakota on lands or 
property therein belonging to or which may hereafter be purchased 
by the United States, or reserved for its use. But nothing herein 
shall preculde the State of South Dakota from taxing as other 
lands are taxed, any lands owned or held by any Indian who has 
severed his tribal relation and has obtained from the United States, 
or from any person a title thereto by patent or other grant, save 
and xcept such lands as have been, or may be granted to any 
Indians or Indians under any act of Congress containing a provision 
exempting the lands thus granted from taxation, all such lands 
which may have been exempted by any grant or law of the United 
States, shall remain exempt to the extent, and as prescribed by 
such act of Congress. 

Third: That the State of South Dakota shall assume and 
pay that portion of the debts and liabilities of the Territory of 
Dakota as provided in this Constitution. 

Fourth: That provision shall be made for the establishment 
and maintainance of systems of public schools, which shall be open 
to all the children of this State, and free f . om sectarian control. 

By order of Committee, 

BY L. H. HOLE, Chairman. 

Mr. Jolley: That was a mistake; there are two reports ac- 
companying that. 

The President: Consideration of reports of Standing Com- 
mittees. 

Report of the Committee on Legislative Apportionment. 

Mr. Van Tassel: I move that the report be adopted. 

Which motion received a second. 

The Clerk reads at this point the report of the Committee on 
Legislative Apportionment as follows: 

Sioux Falls, July 24, 1889. 
MR. PRESIDENT: 

Your Committee on Congressional and Legislative Apportion- 
ment, to whom was referred Article XIX of the Constitution, hav- 
ing had the same under careful consideration, beg leave to submit 
the following report relative thereto, and in which report there are 
no changes of the Constitution, except as relates to the reappor- 
tionment of districts as provided for in the Omnibus Enabling 
Act, and adding thereto a provision that the State shall constitute 
one Congressional district, from which two (2) Congressmen shall 
be elected at large. All of which changes are within the provisions 
of the Enabling Act, and herewith report Article XIX with said 
changes incorporated therein and respectfully recommend the 



LEGISLATIVE APPORTIONMENT 247 

adoption of the changes and the resubmission of the Article as 
amended. 

All of which is respectfully submitted, 

C. H. VAN TASSEL, 

Chairman. 
W. H. MATSON, 
J. V. WILLIS, 
R. F. LYONS, 

A. O. RlNGSRUD, 

JOSEPH ZITKA, 
M. P. STROUPE, 
WM. S. O'BRIEN, 
SANFORD PARKER, 
E. E. CLOUGH, 
M. R. HENINGER, 
I. ATKINSON, 
C. R. WESCOTT, 
T. W. P. LEE, 
E. G. EDGERTON, 
C. A HOULTON, 
J. G. DAVIES, 
H. M. WILLIAMSON, 
S. F. HUNTLEY, 
J. A FOWLES, 
GEO. H. CULVER, 

T. F. DlEFENDORF, 

C. G. COATS, 

T. W. THOMPSON. 

The President: The report of the Committee on Legislative 
Apportionment is before the Convention and the Chairman of the 
Committee moves its adoption. Is the Convention ready for the 
question ? 

Mr. Sterling: I move as a substitute that the report of this 
Committee be postponed until tomorrow; I will say that this 
report is just received ; we have had no opportunity to examine it 
until the last few minutes; it is an important report; I think we 
should have further opportunity to investigate it. 

Mr. Wood: I would suggest that it be postponed until eight 
o'clock tonight, as I understand we meet this evening. 

The motion to postpone, by rising vote, was declared lost. 

The President: The question before the Convention is upon 
the adoption of the report of the Committee on Apportionment. 

A Voice: Let it be by roll call. 

Which was accordingly done, with the following result: 

Those voting aye: Anderson, Atkinson. Buechler, Clough, 



248 SOUTH DAKOTA DEBATES 1889 

Cook, Cooper, Corson, Couchman, Craig, Culver, Da vies, Dickinson, 
Diefendorf, Downing, Eddy, Edgerton, of Yankton, Fellows, 
Fowles, Goddard, Hall, Harris, Hartley, Heninger, Hole, Houlton, 
Huntly, Humphrey, Jeffries, Jolley, Kimball, Lee, Lyons, Matson, 
O'Brien, Peck, Ramsey, Ringsrud, Schollard, Sherwood Smith 
Spooner, Stoddard, Stroupe, Thompson, Van Buskirk, Van Tassel 
Wescott, Wheeler, Whitlock, Willis, Williams, Williamson, Wood 
of Pennington, Wood of Spink, Young, Zitka, and Mr. President. 
(57). 

Those voting no: Gifford, McFarland, and Sterling. (3). 

Mr. Harris: I move to reconsider the vote by which the re- 
port was adopted and lay the motion upon the table. 

Which motion prevailed. 

The President: Report of Select Committees. 

Mr. Clough offered the following report: 

Sioux Falls, Dakota, July 25, 1889. 
MR. PRESIDENT: 

Your Special Committee to whom was referred the com- 
munication from the officers of the American Sabbath Union, hav- 
ing carefully examined the same and the matters therein, referred 
to, beg leave to submit the following report. 

That in our judgment, this Convention acting under enumer- 
ated powers fixed by and contained in the Act of Congress known 
as the "Omnibus Bill", have no power to change, alter or amend 
the Sioux Falls Constitution of 1885. by inserting the provis on 
named in said communication, nor any similiar provision, for the 
reason that the power to do so is not conferred upon th's Convention 
by said act of Congress. 

Your Committee further recommends that the Chief Clerk of 
this Convention send in writing to the Hon. Elliott F. Shepard 
Gen. O. O. Howard, U. S. A., Rev. J. H. Knowles, D. D., Rev. 
Wilbur F. Crafts, D. D.' officers of the American Sabbath Union, 
the following communication: 
GENTLEMEN: 

We, the Constitutional Convention of South "Dakota, hereby 
acknowledge the receipt of your telegraphic communication bear- 
ing date of July 20, 1889, recommending the insertion into the 
Constitution of South Dakota of certain provisions relating to the 
observance of the Sabbath Day. 

We have the honor to inform you that your communication 
was referred to a special committee of this Convention and said 
Committee, after careful and mature consideration of your com- 
munication, made and submitted to this Convention the following 
report: 

Your Special Committee to whom was referred the com- 
munication from the officers of the American Sabbath Union, hav- 



ROUTINE 249 



ing carefully examined the same and the matters therein referred 
to, beg leave to submit the following report: 

That in our judgment, this Convention, acting under enumer- 
ated powers fixed by and contained in the Act of Congress known 
as the "Omnibus "Bill, have no power to change, alter or amend 
the Sioux Falls Constitution of 1885, by inserting the provisions 
named in said communication, nor any similiar provision for the 
reason that the power to do so is not conferred upon this Convention 
by said act of Congress, which said report was unanimoulsy adopted 
by the Convention. 

It is therefore apparent that no further action can be taken 
by this Convention on your communication and the matters there- 
in re "erred to. 

Respectfully submitted, 

E. E. CLOUGH, 
S. F. HUNTLEY, 
J. V. WILLIS, 
SAMUEL A. RAMSEY, 
CHAUNCEY L. WOOD. 

Mr. Clough: I move the adoption of the report. 

Which motion received a second and on reaching a vote, pre- 
vailed. 

Mr. Wood: I desire to move the adoption now of the report 
of the Judiciary Committee, relative to the special matter referred 
to it, relating to the Clerks of the Circuit Court at the coming elec- 
tion. 

The President : It can only be taken up by consent. 

Mr. Hole: I think it is beyond our powers to take it up and 
adopt it now, because other Committees have decided to the con- 
trary. I would think it would be better to refer it to a special 
committee. 

Mr. Van Buskirk: I desire to suggest that there is some dif- 
ference of opinion in that Committee, whether it is thought best 
to submit a minority report I am not able to say. As far as my 
own opinion is concerned I am opposed to it ; I do not think it is 
within the purview of the Convention. I object to its being taken 
up at this time. 

The President: Having passed the order provided by the 
rules, I am of the opinion that it cannot now be considered only 
by suspension of the rules. 

Mr. Wood: I move that the rules be suspended that the Con 



250 SOUTH DAKOTA DEBATES 1889 

vention consider the report of the Judiciary Committee made this 
morning. 

The motion was declared lost. 

Mr. Humphrey: For two days the report of the Committee 
on Education and School Lands was deferred by request and if 
it would be in order before we pass that head, 

The President: That is under a special order; as soon as we 
reach that order of business it will be considered. 

The President: Reports of Select Committees. 

Consideration of reports of Select Committees. 

Presentation of Resolutions and Propositions relating to the 
Constitution. 

Special Orders are now before the Convention. 

MR. PRESIDENT: 

Your Committee on Education and School Lands, to whom 
was referred Article (8) Eight of the Constitution, entitled "Educa- 
tion and School Lands", having had the same under careful con- 
sideration, beg leave to report the following changes' and amend- 
ments necessary . to comply with the provisions of the Omnibus 
Enabling Act, to-wit: 

First: To insert the words "and other" in the title. 
Second: To strike out in the, first sentence of Section 5 the 
words, viz: "Unless, after the year A. D. nineteen hundred, two 
sucessive Legislatures concur in a law otherwise directing". 

Third: To insert the word ' South" bef re Dakota in Section 
II. 

Fourth: To insert the words, "and all lands donated for other 
than educational and charitable purposes," after the word "section" 
in the second line of Section 8, and we herewith report Article VIII, 
with the changes and amendments aforesaid incorporated therein. 
And we respectfully recommend the adoption of the amend- 
ments and the submission of the Article as amended. 

H. A .HUMPHREY, 
Acting Chmn. of Committee. 
C. G. COATS, 
F. G. Young, 
J. DOWNING, 
S. S. PECK, 
W. H. MaTsoN, 
GEO. H. CULVER, 
S. F. HUNTLEY. 

Mr. Humphrey: I move the adoption of the report of the 
Committee. 

Mr. Corson: I move to strike out of the report, Amendment 



CAPITOL LANDS . 251 



No. 4, which is the last amendment, and to substitute for Sec. 
8, as reported, the original Sec. 8, of the Sioux Falls Constitution. 
The object, I understand, of the amendment seems to be to in- 
clude in that provision, railroad and school and University lands; 
the lands appropriated by the National Government for a capitol, 
fifty thousand acres. 

Now, the first point I make in this motion is, that an amend- 
ment of the Constitution is not required or allowed. Under that 
provision. Congress has donated to us for capital purpose's fifty 
thousand acres of land, or for buildings at the capital. There is 
nothing in the Enabling Act requiring that to be included in the 
provision, providing for the sale of school lands; there is nothing 
in our Constitution requiring it. It is an amendment which would 
be like any other amendment proposed to our Constitution and it 
is not made necessary by any provision of the Enabling Act and is 
therefore improperly made at this time; it is not permissible, in 
other words. 

Second: I make two propositions, that is that it would be 
injudicious at this time to include that land appropriated for the 
capital buildings in the provisions relating to our school and Uni- 
versity lands. We all know that the system provided for these 
school and University lands is quite complicated ; that they cannot, 
be sold for less than $10 per acre; that special appraisals have to 
be made ; have to be sold on long time, and a great many provisions 
which are perhaps proper enough as to the educational lands 
so that we could easily dispose of them. This question of the 
provision made for the capitol buildings is something that will 
require a different treatment. It cannot be very long before 
we will have a fixed place for capital and we will need buildings. 
Now, "will this action be wise or judicious? Shall we require the 
people of the Territory to put their hands in their pockets and 
build the capitol that subsequent generations may get the benefit 
of the rise pf these lands? I think not; therefore for both rea- 
sons. First: That it is not permissible to make this amend- 
ment, and second: That it will be injudicious to make it. I 
move the amendment. 

Now, in order that the Convention may fully understand it 
if they will refer to Section 17 of the Omnibus Bill, they will find 
in the second subdivision the following language: 

That in lieu of the grant of land for purposes of internal im- 



252 SOUTH DAKOTA DEBATES 1889 

provement made to new states by the 8th Section of the Act of 
September 4th, 1841, which act is hereby repealed as to the states 
provided for by this act, and in lieu of any claim or demand by the 
said states, or either of them, under the act of September 1st, 1850, 
and in Section 2479 of the revised statutes, making a grant of swamp 
and overflowed lands to certain states, which grant is hereby 
declared is not extended to the states provided for by this act, and 
in lieu of any grant of saline lands to any states, the following 
grants of land are hereby made, to-wit: 

To the State of South Dakota: For the School of Mines, 40,- 
000 acres; for the Reform School, 40,000 acres; for the Deaf and Dumb 
Asylum, 40,000 acres; for the Agricultural College, 40,000 acres: 
for the University, 40,000 acres; for the State Normal Schools, 80,- 
000 acres; for publ c buildings at the capital of said State, 50,000 
acres; and for such other educational and chartiable purposes as 
the Legis ature of said State may determine, 170,000 cres; in all. 
500,000 acres. 

By turning to Section 8 of the original act of our Const tution 
Section 8, of Article VIII, it will be found that there is no necessity 
for this amendment as these lands come within the provisions of 
that section clearly. It reads: "All lands mentioned in the pre- 
ceding sections". The preceding section, Section 7 of Article VII 
reads: "All lands, money or other property donated, granted or 
received from the United States or any other source for a University- 
Agricultural College, Normal School or other educational or char- 
itable institution or purpose, and the proceeds of all such 
lands and other property so received from any source, shall 
be and remain perpetual funds, the interest and income of which, 
together with the rents of all such land as may remain unsold, shall 
be inviolably appropriated and applied to the specific objects of 
the grants or gifts. The principal of every such fund may be in- 
creased, but shall never be diminished, and'the interest and' income 
only, shall be used. Everv fund shall be deemed a trust fund held by 
the State, and the State shall make good all losses thereform that 
shall occur in any manner." Section 8, which I propose as an 
an amendment, is as follow : "All lands mentioned in the pre- 
ceding section shall be appraised and sold in the same manner 
and by the same officers and board under the same limitations, and 
subject to all the conditions as to price, sale, and approval provided 
above for the appraisal and sale of lands for the benefit of public 
schools, but a distinct and separate account shall be kept by the 
proper officers of each of such funds." Now, Mr. President,' and 
: entlemen of the Convention, you will see, taking these two sections 
together, all the lands that have been granted by Congress and by 
virtue of this section, becoming part and parcel of this section 
except this 50,000 acres that has been mentioned as for the capital 
buildings. The object of this amendment is to include that 50,- 
000 acres. I insist that it is not a proper amendment to make at 



PUBLIC LANDS 253 



this time. I further argue that it is not the object of Congress in, 
making this donation that they should not be included among that 
class of lands for the reason that they fixed no limitation to the 
price of these lands as I undertand it, but for the other lands donated 
for educational purposes they have made they limit at $10 per acre 
so that they properly come within the section that I have read. I 
argue therefore that the amendment should, be made to this 
report and that these 50,000 acres be left? to the disposal of the 
Legislature in the manner that they deem most judicious for the 
buildings at the capital. I believe the Legislature can be trusted 
in this manner; they will all have an interest in it to get the largest 
price and make just use of the proceeds. 

The amendment offered by Mr. Corson was at this point 
seconded. 

Mr. Humphrey: I have not, before, had any opportunity 
to present to the Convention, the reasons that lead the Committee 
to recommend the amendment in their report. In the first place, 
they found in the Constitution, restrictions and safeguards thrown 
around the lands that the state then possessed or was likely to 
possess. Following in the spirit of the Constitution and the 
Enabling Act, the Committee felt that they should provide the 
same restrictions for these lands. The intention of the report is 
to protect the lands coming into possession of the State from any 
possible chance of slipping away from the people. It is well known 
in the history of states, and the state no further east of ,us than 
Iowa, when they had like us,, donations of land, that they were 
careless in their legislation and before they were aware of their 
folly and turned to see where they were, they were gone. As the 
Committee understood this, and as I now understand it, the result 
of these words in the Eighth Section to simply throw around these 
other lands the restrictions as .to appraisal and approval of sale. 
Further than that, as we understand, and as we find in the Omnibus 
Bill, other lands than those in Section XVII was donated to the 
State, including large lands for the penitentiary and .such other 
institutions that are other than educational lands. The clause was 
to protect the people, not to force the burden upon them to build 
the capitol by taxation. We are not likely to be called upon to 
build a capitol for South Dakota for five years, judging by the 
innumerable contestants. This next year they will vote for tem- 
porary location of the capital, then after that the two largest places 
will vote. We will not see this election contest settled inside of 
five years. It is a fair presumption that many of these lands will 



254 SOUTH DAKOTA DEBATES 1889 

be of the value of ten dollars per acre even at that time, and even 
then you would not have the right to dispose of these lands to 
build the capitol, but under the Constitution, all that would be 
necessary would be to submit to the people at the next election, 
and if they desire to sell the lands for less money at that time to 
build the capitol it will be within their power to do so. It seems to 
your Committee that we should assist in putting these restrictions 
and safeguards around these lands till after that time. 

Mr. Davies: I would ask if the words "educational and char- 
itable" would not cover the penitentiary lands and other lands re- 
ferred to by the gentleman from Faulk? The question in my mind 
is whether that clause did not cover all the lands. 

Mr. Humphrey: I would say that lands donated for educa- 
tional and charitable institutions are generally spoken of as "school 
lands", "Agricultural College lands". 

'Mr. Hole: I wish to raise this point. Under the provision 
of that part of the Constitution as submitted by the Committee, 
it provides that these lands shall be appraised and sold in a certain 
way. It provides further that this shall be a permanent fund; 
that nothing but interest is to be used, as I understand it. The 
intention of giving 50,000 acres of land to build the capital buildings 
would hardly be consistent with the general endowment fund. In 
the proposed part of the Constitution, as submitted, the 50,000 
acres will be sold and that monev kept as an endowment fund for 
the capitol, that was not the intention. The intention was to sell 
the land and build the buildings with it, not to endow the building 
of the capital 

Again, the fact that we do not include it and put it under the 
control of the school department, but leave it to the Legislature 
does not force the Legislature to sell it. I take it that the Legis- 
lature will be as careful and as honest and particular about taking 
care of the funds that is left for the State of South Dakota, as any 
body of men that can possibly be called together or elected by the 
people and the mere fact that we leave this to our Legislature who 
are to use their wisdom in raising the funds to build State buildings, 
does not force us to sell it at an inadequate price or at inopportune 
time. 

Mr. Young: The gentleman who has just had the floor, I 
think, is laboring under a false impression as to the amendment 
desired by the Committee on Education and School Lands. The 



CAPITOL LANDS 255 



amendment desired is incorporated in Section 8, and Section 8 does 
not provide for building up any permanent fund at all. Section 
8 has reference simply to the manner of selling, the Board for ex- 
ecuting the sale, the price and the approval of the sale and the ap- 
praisal for the sale and nothing at all about the securing of a fund 
as a permanent fund which is incorporated in Section 7 and further, 
I think we are not quite as intelligent upon this question as a body 
as we ought to be because this point has not been brought up. 

In the previous section, Section 12,1 find that Uncle Sam has 
been still more generous to us in his endowments for the public 
building fund. He there contributes another little lot of fifty 
sections, making eighty two sections in all that this State is endowed 
with for a public building fund. 

This makes a large fund and will make therefore the piling up 
of the fund more rapid, even if very strict safeguards are thrown 
around them; and as has already been, intimated, our permanent 
capital site may not be determined on for the next five years. 
There will be no necessity of any work on a large capitol building, 
a building that ought to be an ornament to our State, for some 
time, in any event. I do not think that we ought to be in any un- 
seemly haste towards starting a capitol building here that is to do 
for all time 

Now, Mr. President, in reference to the disposition of these 
safe-guards, we will have to have some agents for the State for the 
purpose of disposing of these lands for the application of the funds. 
It seems to me the Board to whom it is proposed to intrust these 
lands in the amendment recommended by the Committee on Edu- 
cation and School Lands, is just exactly the Board that is best 
adapted for this purpose. They are intelligent in these matters 
because they will have had experience disposing of other lands 
and caring for all such matters. If our amendment is rejected in 
regard to this matter it will simply amount, not only to throwing 
away all of these safe-guards, but to the appointment of another 
Board, which will be an element of extra expense. As to the point 
of our lack of authority on the part of the Committee in introduc- 
ing this amendment at this place you will see by reference to the 
Omnibus Bill that these endowments, both of them for public 
buildings, are sandwiched in between the endowments for other 
purposes. You will see in the latter part of Section 17, that the 
ntention was plainly the same in regard to ajl lands on the part 



256 SOUTH DAKOTA DEBATES 1889 

of Congress for it says: "All the lands granted by these sections, 
including the several grants for the several purposes shall be held 
and appropriated and disposed of exclusively for the purposes 
herein mentioned, in such manner as the Legislature for the respec- 
tive States may severally provide" as we have thrown safe- 
guards around these and other separate endowments, and why 
should we separate this one single endowment out and put it in 
condition where t will likely be sacrificed. It seems to me a very 
important subject and is one in which we must make haste slowly. 
Mr. Woods: It seems to me that there can be but little ques- 
tion about what our actions can be. There are some very radical 
amendments for instance, the report of the Committee calls for 
striking out a section and the words "and, after the year 1900 two 
sucessive Legislatures concur in a law otherwise directing". To 
strike out these words is not necessary. We have no authority 
to strike these words out of the Constitution at all ; I think that 
will be apparent to any gentleman of the Convention upon close 
and careful thought for a few minutes. Then, inserting of the words 
"and other" in the title is as radical an amendment as striking out 
the words from Section 5, something we have no authority to 
do. I do not remember whether the amendment covers all the 
proposed amendments in Constitution here or not. The insertion 
of the words in the fourth subdivision of the report, "and all lands 
donated for other than educational and charitable purposes" is 
something we have no right to place in the Constitution as an amend- 
ment. It is not necessary, in other words, to carry out the pro- 
vision of the Omnibus Bill that these amendments be made, there- 
fore we are without authority to make them. It seems to me, 
these propositions are clear and plain. The argument that it 
would be desirable to place these amendments in the Constitution 
is not an argument which reaches the difficulty. It may be desir- 
able to place them in the Constitution, it is not necessary to dis- 
cuss that; we find ourselves without power to make the proposed 
amendment. It is not any answer to the argument that it would 
be wise to place them there within the purview of the law governing 
the lands donated for capital purposes for the reason sometime in 
the future it would cost the creation of some Board and thus entail 
some expenses that might be avoided. We find ourselves not in 
the possession of that power to pass amendments under the Con- 
stitution. This Constitution has been ratified and adopted by the 



THE CAPITOL LANDS 257 

people and we are authorized by Congress to make certain amend- 
ments and changes. These are merely amendments and not 
changes; now we can enact only such ammendments under 
the provisions of the Omnibus Bill as are necessary to carry 
into effect the provisions of the Omnibus Bill. I think the gentle- 
men of the Convention will do well to consider the absence of 
power in voting the proposed amendment. If we can make 
these amendments I submit the proposition that we can throw 
away the Constitution of 1885 and make a new one. If we have 
sufficient power to make these proposed amendments, not 
changes ; they are amendments we have that power we have the 
power to make a new Constitution entirely and call it amendments. 

Mr. Corson: I desire to call the attention of the Convention 
to Section llth to show that it was not the intention of Congress 
that these capital lands should be included in the educational lands 
for the purposes of the State. Section llth of the Omnibus Bill 
reads, "That all lands herein granted for educational purposes 
shall be disposed of only at public sale at a price not less than $10 
per acre, the proceeds to constitute a permanent school fund, the 
interest of which only shall be expended in the support of said school 
It will be seen in speaking of educational lands they use the words 
"that they shall not be sold for less than $10 per acre", but when 
they come to speak of the other lands they use no such terms and 
that makes the proposition of Mr. Woods stronger, that we are 
not allowed to make these amendments. But we cannot find any 
provision in the Omnibus Bill that would warrant us. It seems to 
me that this Convention ought to favor this second amendment. 

Mr. Sherwood: In regard to our powers to insert this amend- 
ment proposed, it seems to me this other amendment in striking 
out the words "unless after the year 1900 two successive Legisla- 
tures concur in a law otherwise directing" would be unnecessary 
to conform with this section of the Omnibus Bill, that"all\ands 
shall be disposed of only at public sale -and at a price not less than 
$10 per acre," I do not hardly see how that amendment can stand 
and yet the Legislature have power after 1900. 

Mr. Humphrey: I wish to call the attention of the Convention 
to the fact that by inserting the amendment proposed in the 8th 
Section does not throw around these lands the restrictions con- 
tained in many other sections relating to the permanent fund. It 
is only a restriction in regard to the rights- of appraisal and ap- 



258 SOUTH DAKOTA DEBATES, 1889. 

proval pertaining to the same only. We find that the Constitution 
has its own safeguards and protects all the lands that the State has 
cognizance of and when it is claimed that the Legislature will take 
necessary care of these lands we have only to judge the future by 
the past and if the Convention which framed this Constitution has 
that same confidence in the Legislature, why did they place th se re- 
strictions upon these lands? The restrictions should be placed in 
the Constitution. This having been injected as I have said by this 
bill it will be a portion of our duty to guard and protect it the same 
as other public lands. In regard to the amendment of the 5th 
Section, to which your attention has been called by Mr. Sherw r ood, 
under the Constitution you would be liable and would violate the 
provisions of the Omnibus Bill. The Omnibus Bill states that 
these lands should never be sold for less than $10 per acre; would 
you empower the Legislature after a certain year to sell them for 
less? In regard to the amendment to the title, I would say this, 
that we depended upon amendment Number Four. If that were 
enacted, that necessarily amended the title if not concurred in 
by the Convention that would be striken out. 

Mr. Corson: I move to strike out of the report amendment 
number four and substitute for Section 8 as reported, the original 
Section 8 of the Sioux Falls Constitution. 

Mr. Dickinson: It seems to me, the question turns on this 
point: In tne first place whether the Committee on Education 
and School Lands has not the right to extend its jurisdiction so 
that it will include the capital lands and whether in an atricle of 
the Constitution providing for Education and School Lands we 
can arrange for capital improvements. I have been surprised that 
the Chairman of the Committee makes this report. He has been 
one of the greatest sticklers for preserving intact the Sioux Falls 
Constitution. In this matter he presents a most decided change of 
front that has been noticed yet on the floor of this Convention 

Mr. Humphrey: I would say that I am aware that I am open 
to that charge. I had myself advised that this matter be turned 
over to the Schedule Committee but many thought that it would 
be the proper place for it to be brought before this Convention. 

Mr. Woods: I propose as an amendment to the amendment, 



THE CAPITOL LANDS 259 

that the words "and others" in the first sub-division of the report 
be stricken out of the report. 

Which motion received a second. 

Mr. Young: Now we are by our Constitution to throw safe- 
guards and a very many of them around all public lands we had 
then or that the State had any expectation of. These lands were 
given to the State by this Enabling Act, and it is only natural to 
suppose that had the Constitutional Convention of 1885 been aware 
of the generosity of the general government they would have put 
in the provision that the Committee proposed. 

The President: The question before the Convention is upon 
the adoption of the report of the Committee on Education and 
School Lands to which Mr. Corson proposed the following amend- 
ment, to strike out of the report, amendment number four, and to 
substitute Section 8, as reported by the Sioux Falls Constitution 
in lieu of Section 8, as reported by the Committee. Mr. Woods 
proposes an amendment to the amendment by striking out the 
words "and other." As many as are in favor of the amendment 
proposed by the gentlemen from Pennington say aye ; the ayes 
have it. The motion is now upon the amendment as amended. 
Mr. Sterling moves that the report of the Committee on Education 
and School Lands be amended so that Section 9 of Article VIII 
shall read as follows: "The lands mentioned in this Article may, 
under such regulations as the Legislature may prescribe, be leased 
for periods of not more than five years in quantities not exceeding 
one sectkm to any person or company. All rents shall be payable 
annually in advance, nor shall any lease be vaild until it receives 
the approval of the Governor." 

Mr. Sterling: I move the adoption of the amendment. 

Motion received a second. 

Mr. Wescott: I move that the motion be laid upon the table. 

Which motion received a second and prevailed. 

The President ; The question is upon the report of the Com- 
mittee as amended. 

Mr. Woods: Before the motion is put, I desire to modify 
what I have said, what I have heretofore said, concerning the 
proposed amendment of Section 5 of Article VIII. I am inclined 
to think what I said before was said without due consideration. 



260 SOUTH DAKOTA DEBATES 1889 

The question of the adoption of the report of the Committee, 
upon reaching a vote, was declared by the President to be duly 
adopted. 

The President: Under the Special Order the consideration 
of the report of the Committee on Name and Boundaries will be 
the next order of business. 

The Clerk reads the report as follows ; 

(Here insert it.) 

The President: The Chairman of the Committee on Name 
and Boundaries moves the adoption of the report. 

The Convention, by a unanimous vote, adopted the report 
of the Committee on Name and Boundaries. 

The President: The second report made by this Committee 
on Seat of Government, is now before the Convention. 

Clerk reads the report as heretofore made: 

(Here insert it.) 

The Convention, by unanimous vote adopted the report of the 
Committee on Name and Boundaries, the second sub-division, 
Seat of Government. 

The President: That finishes the Special Order. What is 
the further pleasure of the Convention ? 

Mr. Clough: At the request of the Chief Clerk, I introduce 
this resolution: 

WHERAS, in the records of this Convention the words "Chief 
Clerk" and "Secretary" are used interchangeably, 

RESOLVED, that when so used, that they 'shall be deemed to 
pertain to the same person and office, that of Chief Clerk. 

The President : The resolution will be referred to the Committee 
on Rules. 

Mr. Spooner: In order to facilitate business it has been sug- 
gested that we have a session tomorrow morning. I move that the 
rules be suspended and that when we adjourn it will be until 9 
o'clock tomorrow morning. 

Mr. Davies: Have we not already said we would have a 
session this evening? 

The President: It is moved that the rules be suspended and 
when we adjourn, it be until tomorrow morning at 9 o'clock. 

This motion prevailed. 

Mr. Clough: I move that we instruct the Committee on 
Schedule to bring us a report. 



SCHEDULE AND ORDINANCE 261 

Mr. Jolley: I move an amendment, that the gentleman 
from Codington have a club and be instructed to make the Commit- 
tee bring it. 

Mr. Humphrey: This is near the close of our session; we 
are anxious to expedite the work, the work that is left, the 
principle part of which pertains to the Committee on Schedule. 
I renew the motion of the gentleman from Codington that they be 
instructed to report tomorrow morning at 9 o'clock. 

This motion received a second and on a division of the House 
prevailed by a vote of 31 ayes and 26 noes. 

Mr. Humphrey: I move you the report of the Commmttee 
on Schedule be made a special order tomorrow morning at 9 o'clock. 

Mr. Jolley: That is pretty good, making a special order 
of something you are not in possession of. 

Mr. Willis: I second the motion that we make it a special 
order. 

Mr. Corson: There are matters in that report that cannot 
be inserted until this Committee from Bismarck reports. 

Mr. Hole: There has been a special call for the report of the 
Committee on Schedule and Ordinance. I will explain that the 
Committee has been at work pretty nearly night and day. From 
the fact that they have to take up the work after these Committees 
have reported. We do not want to report, and you do not want 
any report that is not right. We expect to work all night at that 
and get it here tomorrow morning. I think it is unfair and un- 
courteous to pass this kind of a resolution at this time. You 
know naturally as well as you want to know, that this Committee 
want to report just as quick as they can. We are going to report 
tomorrow morning if possible, and if it is not possible it will not 
be here. You do not want a faulty report. This question referred 
to the Judiciary Committee two weeks ago that has just come in 
from the Committee. We had to work after all these Committees 
came in. I think you will find that you have been just a little bit 
hasty in this matter. This Committee wants to report and get 
away just as badly as any gcntkman in this Convention. This 
Committee has worked more hours than any other Committee in 
this Convention. It strikes me just a little bit previous to make 
this kind of a motion. 

The President: The motion before this Convention is that 
the report of the Schedule Commit tin- be made a special order 



262 SOUTH DAKOTA DEBATES 1889 

for tomorrow morning at nine o'clock. I will say that the Com- 
mittee on Schedule have two reports in and the Convention has the 
right to make them the special order for tomorrow morning at 
9 o'clock. 

The motion prevailed. f- > 

Mr. Fellows: I move the reconsideration of the motion or- 
dering the Committee to report tomorrow morning at 9 o'clock. 

This motion prevailed; the motion was reconsidered. 

The President: The question before the Convention is, shall 
the Committee on Schedule and Ordinance be instructed to report 
tomorrow morning at 9 o'clock. 

Mr. Clough: After talking w 7 ith the Committee I think we 
understand it a little better. I will make another motion, that the 
Committee on Schedule be requested to report next Thursday 
afternoon. I make that as an amendment that they be requested 
to report next Thursday afternoon. These gentlemen claim that 
they cannot report until the Committee get back frcm Bismarck. 
I would like to have these Bismarck men get home next Thursday. 

Mr. Hole: I would say that we want to report before that 
time. We expect to report tomorrow morning ; we expect to make 
a partial report. 

The President: The question is upon the amendment of the 
gentleman from Codington, that it be made a special order for next 
Thursday. 

Mr Willis: I move to lay the amendment on the table. 

Which motion received a second and duly prevailed. 

The President: The question before the Convention now 
is, shall the Committee on Schedule and Ordinance be instructed 
to report tomorrow morning at 9 o'clock. jt^ 

Mr. Humphrey: I wish to ask a question. I am under the 
impression that our duty is simply to incorporate the agreement 
reached by the gentlemen of the Commission and if so, w^hat have 
the Schedule Committee got to do with it? 

Mr. Jolley: It is by Ordinance. 

Mr. Hartley: I understand we have nothing to do with the 
report from Bismarck; it is for this Convention to put it through. 
It has never been referred to our Committee. We can report 
tomorrow morning. 

The President : The question is , shall the Committee on Sched- 
ule be requested to report tomorrow morning. 



ADJOURNMENT 263 



The motion reaching a vote, the President declared the motion 
lost. 

On motion the Committee adjourned until tomorrow morning 
at 9 o'clock, July 25th, 1889. 



TWENTY-THIRD DAY. 

Sioux Falls, S. Dak., July 26th, 1889. 
Nine o'clock A. M. 

Pursuant to adjournment, Convention re-assembled with 
President Edgerton in the Chair. 

Prayer was offered by Rev. Mr. Lee as follows: 

Most holy, All Wise and ever to be adored God, Ruler of the 
Armies of Heaven, and the dwellers upon earth, before whom angels 
and arch-angels bow in reverence and godly fear; we thank Thee 
that Thou hast made us but little lower than the angels, and en- 
dowed us with intellectual faculties whereby we can take a retro- 
spective view of the past, consider the present, and by a lively faith 
anticipate the joys to come. Great God, as we have met to consider 
the greatest question that may come before this Convention we ask 
for strength mentally, physically, and morally that we may do 
right by our constituents and the inhabitants of South Dakota with- 
out fear or favor. Oh God, bless all our loved ones at home, ward 
off disease and accident, let nothing thwart our pathway that shall 
lead us astray, and finally save us all in Heaven where we may 
enjoy each other's society, refer to the acts of this life well done 
before, and after we are a million years old. We ask all in the name 
of Christ, our Mediator and Redeemer, 

AMEN. 

The Clerk reads the Journal of the preceding day. 

The President: I do not know that I understand fully the 
order made yesterday by the Convention as to the purpose of this 
morning's session; I shall decide unless objection is made that this 
morning's session is for the purpose just as named in the motion for 
the session this morning, and that the afternoon's session will take 
place as usual with the regular order of business; if I am correct 
in that, the first business for the consideration of the Convention 
is the report of the Committee on Schedule. 

Mr. Van Buskirk: I asked leave yesterday to sulmit a report 



266 SOUTH DAKOTA DEBATES 1889 

of the minority of the Judiciary Committee upon the question of 
the power of this Convention to prepare for the election of a Clerk 
of the Circuit Court. While I would have been glad to have deferred 
it a few minutes longer, as some members of ihe Committee who are 
not present desire to sign it, I will say I do not desire to discuss this 
question now until the Schedule Committee report as they may 
agree ; otherwise I wish to be heard on this report. 

The Clerk reads as follows: 
MR. PRESIDENT: 

The undersigned members of the Judiciary Committee would 
respectfully represent that we have carefully examined the Sioux 
Falls Constitution and the Omnibus Bill, and we are unable to find 
any provision or authority in either by which this Convention can 
provide by ordinance or otherwise for the election of any other than 
State officers at the election held for the adoption of the Consti- 
tution. That neither the Clerk of the Court, Register of Deeds, or 
any other of the County officers are by the said Constitution or the 
Omnibus Bill, considered as State officers, nor have thev been treated 
as state officers in the administration of the affairs of government, 
but especially does the said Constitution treat and consider these 
officers as county officers and provides for their election at the next 
general election after the admission of the State intothe Union. We 
therefore beg leave to dissent from the opinion of the Committee 
heretofore submitted. 

S. B. VANBUSKIRK, 

GEO. C. COPPER, 
H. F. FELLOWS, 
THOS. STERLING, 
SAMUEL A. RAMSEY, 
H. W. EDDY, 
A. J. BERDAHL. 

The President: Are there any further reports from Standing 
Committees? 

Mr. Stroupe: I have a report from the Committee on Name 
and Boundaries and Seat of Government to which was referred the 
resolution of Mr. Goddard, of McCook County, relative to the Sev- 
enth Standard Parallel. 

The Clerk reads the report referred to as follows: 

Sioux Falls, July 26, 1889. 

Your Committee on Name, Bounadries and Seat of Government, 
to whom was referred the resolution presented by Mr. Goddard, 
of McCook County, relative to the Seventh Standard Parallel, have 
considered the same, and beg leave to report, that in the opinion of 
your Committee the Constitutional Conventions of North and South 



PUBLICATION OF CONSTITUTION 267 

Dakota are not authorized by the Omnibus Bill to determine what 
constitutes the true Seventh Standard Parallel. We therefore 
respectfully recommend that no action be taken on the resulution. 
Respectfully submitted, 

M. P. STROUPE, Chmn. 
S. A. WHEELER, 
JONATHAN KIMBALL, 
W. T. WILLIAMS, 
E. G. EGERTON, 
WM. VAN EPS. 

The President: What will you do with the report? 

Mr. Stroupe: I move that we adopt the report. 

The motion prevailed and the report was declared adopted. 

The President: A matter went over yesterday and has not 
been adopted yet ; that was the report of the Committee on Printing 
with reference to the publication of 200,000 supplements containing 
the Constitution. Is the Convention ready for the consideration 
of that report? 

Mr. Sherwood: I move an amendment to the report, that 
in the place of the amount of 10,000, shall be printed in German and 
10,000 in the Scandinavian language, it shall read tw : enty thousand 
be printed in each. 

Mr. Zitka: I move as an amendment that ten thousand copies 
be printed in the Bohemian language. 

The President: The gentleman from Clark moves an amend- 
ment to strike out "10" where it occurs and insert the word "twenty" 
with reference to the publication of this in the German and Scan- 
dinavian languages ; and the gentleman from Bon Hcmme proposes 
an amendment to the amendment by adding thereto ten thousand 
in the Bohemian language ; is the Convention ready for the question ? 

Mr. Sterling: I wish to say a word on this proposition in 
reference to what the Committee had under consideration; it was 
proposed in Committee that the distribution of these copies of the 
Constitution be as newspaper supplements; we estimated the num- 
ber of newspapers that would probable convey these copies to the 
people speaking those languages, the Scandinavian and the German 
and allowing the largest possible estimate we could figure it out that 
there would be more than ten thousand conveyed in that way to 
the Scandinavian and Germans, and that that was the reason for 
making the amount ten thousand in each case. But if there are 
others who are better informed as to the number who will be rea< bed 



268 SOUTH DAKOTA DEBATES 1889 

in this way through the newspaper supplements/ the people speak- 
ing those different languages, I suppose the Committee would not 
object; I wished simply to state that for the consideration of the 
Convention.' 

The President: The question before the Convention is upon 
the adoption of the amendment to the amendment, that ten thous- 
and copies be printed in the Bohemian language. 

The motion prevailed and the amendment was declared so 
amended. 

The President: The motion now recurs upon the amendment 
as amended. 

The motion prevailed and w r as so declared by the President. 

The President: The motion now recurs on the report as 
amended; as many as are of the opinion that the report as 
amended be adopted, say aye. 

The President: The ayes have it; the report as amended is 
adopted. 

Mr. Wood: I understood the chair to announce that this 
meeting was called for the purpose of considering the report of the 
Schedule Committee; I do not so understand the porceedings of 
yesterday; in order to bring the matter before the Convention, 
I move you, Mr. President, that the report of the Committee on 
Judiciary relative to the right of the Convention to provide for 
Clerks of the Circuit Court, be now considered. 

The President : It is moved by the gentleman from Pennington 
that the Convention proceed to the consideration of the majority 
and minority report upon the powers of the Convention to provide 
for the Election of Clerks of court. Are you ready for the question ? 

Mr. Van Buskirk: There are some of the members of that 
Committee who are engaged this morning on other matters in 
committee ; I think they would desire undoubtedly to be present ; 
I would therefore move as amendment that it be postponed until 
afternoon, so they might be heard on this matter. 

The President: The way to reach that is to vote it down; 
as many as are of the opinion that the motion prevail say aye. I 
am unable to determine. As many as are of the opinion that we 
now proceed to the consideration of the majority and minority 
report of the committee relative to the Circuit Court Clerks will 
rise and stand until counted. 



THE AUSTRALIAN SYSTEM 269 

The President: The motion is lost. I will proceed then under 
the order of the Convention. 

Presentations of Communications and Petitions. 

Mr. Spooner: I have a petition to put m from the legal voters 
of Kingsbury County with relation to a modified Australian system 
of voting. (Sent to desk of Clerk.) 

Unfinished business of preceding day? 

Reports from Standing Committees? I will ask the Clerk to 
read the list of Standing Committees to see how many Committees 
have still reports that have not been presented to the Convention ; 
and if the Chairman will announce as the list is read whether they 
have any further reports to make during the Convention. 

The President: Under the special order, are the two reports 
or partial reports from the Committee on Schedule; first, the report 
upon Minority Representation. 

The Clerk reads the report as follows: 

Sioux Falls, S. D., July 24, 1889. 
MR. PRESIDENT: 

Your Committee on Schedule and Ordinance to whom was 
referred Article XXV of the Constitution, entitled, "Minority 
Representation" having had the same under consideration, beg 
leave to report that po changes or amendments are necessary to 
comply with the provisions of the Omnibus Enabling Act. 

And we herewith report Article XXV as found in the Consti- 
tution, and respectfully recommend the resubmission of the same. 

SCH EDULE AND ORDINANCE COMMITTEE, 

By L. H. HOLE, Chairman. 

The report by vote of the Convention, was adopted. 
The President: The next report for our consideration is the 
report on Prohibition. 

The Clerk reads the report as follows: 

Sioux Falls, July 24, 1889 
MR. PRESIDENT: 

Your Committee on Schedule and Ordinance, to whom was 
referred Article- XXIV of the Constitution, entitled, "Prohibition," 
having had the same under consideration, beg leave to report that 
no changes or amendments arc necessary to comply with the pro- 
visions of the Omnibus Enabling Act. 

And we herewith report ArtiK e XXIV as found 'in the Con- 
stitution and respect fully recommend the re-submission of the same. 
SCIIK oru-: AND OKiHXAxrK COMMITTEE 
Rv L. 11. I IOI.K. Chairman. 



270 SOUTH DAKOTA DEBATES 1889 

The President: The Chairman of the Committee moves the 
adoption of the report ; is the Convention ready for the question? 
The report was declared adopted by the President. 
The Clerk under direction of the President, reads the report of 
the Committee on Revenue and Finance, as follows: 

Sioux Falls, Dakota July 24, 1889. 
MR. PRESIDENT: 

Your Committee on Revenue and Finance, to whom was re- 
ferred Article XI entitled "Revenue and Finance", have considered 
the same and have compared said Article XI with the Sioux Falls 
Constitution and the Act of Congress known as the "Omnibus 
Bill", and have instructed me to report the following as Article 
XI of the Constitution and that the same is in accordance with the 
Sioux Falls Constitution and the changes thereto authorized by the 
Omnibus Bill. 

W.H. GODDARD, Chmn. 
C. A. HOULTON, 
JOSEPH ZITKA, 
C. J. B. HARRIS, 

A. O. RlNGSRUD, 

L. T. BOUCHER, 
WM. VAX EPS, 

Committee. 

The President: The Chairman of the Committee moves the 
adoption of the report; are you ready for the question? 

The report was, by the President, declared adopted. 

The President: The resolution of the Judiciary Committee 
concerning the Circuit Clerks, is next under the special order; what 
is the pleasure of the Convention ? 

I would state for the information of the members of the Con- 
vention who were not present a short time ago, it was moved that 
we proceed to the consideration of the majority and minority 
report of the Judiciary Committee on election of Clerks of Court ; 
the Convention refused then to consider the question; it is now 
reached under the special order, 

Mr. Jolley: Was the report made a special order? I find it 
here upon the desk, that is all I know; the motion was made to 
refer back to that order of business yesterday and the Convention 
refused; do I understand that it was made a special order this 
morning? 

The President: I am informed that it was not made a special 
order. 

The President: The next I have of the reports not acted 



CLERKS OF CIRCUIT COURTS 271 

upon is the report of the Committee on Legislative Department. 

The Clerk reads the report as follows: (Here insert it). 

The President: The Chairman of the Committee moves the ad- 
option of the report ; what is your pleasure ? 

The report was, by vote of the Convention, adopted. 

The President: What is the further pleasure of the Conven- 
tion? We have adopted all the reports I believe except the report 
of the Committee on Judiciary, in which there is a majority and 
minority report with reference to the elections of Clerks of Circuit 
Court and the report of the Committee on Schedule and Ordinance, 
which the Chairman announces that they are not ready this moment 
to make. 

Mr. Dickinson: I move we take up the proceedings of the 
report of the Judiciary Committee. Motion seconded. 

Mr. Jolley : I object ; we cannot refer back without unanimous 
consent. 

Mr. Wood: This comes up in regular order. 

Mr. Jo ley: The order is passed. 

Mr. Wood: It was moved to take it up out of its order; the 
report comes in in its regular order. 

Mr. Jolley: That order is passed, Mr. President. 

The President: The order Consideration of Reports of Stand- 
ing Committees has passed ; I called it and there was no response. 
Then I proceeded to the special order which we have usually taken 
up after the regular order has been passed. I think the objection 
is well taken ; but by two-thirds vote it may be taken up at tl is 
time, that the rules may be suspended and the order taken up and 
unless otherwise directed by the Convention I shall decide that in 
order to carry this, it is necessary that two-thirds vote be in the 
affirma ive. As many as are of the opinion that we proceed tJ 
consider the majority report of the Committee on Election of Clerks 
of Court say aye. Call a divisio >.. 

A standing vote was accordingly taken and resulted as follows: 

The President: The ayes are 26, the noes are 23 ; the vote does 
not prevail ; the rules are not suspended. 

Mr. Hole: By some oversight I think the substitute report 
of Article XXVII has not been adopted by the Convention, in re- 
gard to the compact with the United States. I suppose it will be 
necessary to return to that order of bus'nes . I call it up. 

The President: Chairman of the Committee on Schedule and 



272 SOUTH DAKOTA DEBATES 1889 

Ordinance moves the rtles be suspended in order that the Convent'on 
may consider the report made by the Committee on Schedule and 
Ordinance, with reference to a compact with the United States ; are 
you ready for the question? 

The motion on reaching a vote, the President declared "The 
ayes have it ard the rule h suspended". 

The Clerk read the report. 

Mr. Lee: I move the adoption of the report. 

Which motion prevailed and the motion was declared adopted 
by the President. 

Mr. President: I will state for the information of the members 
who were absent that my understanding of this morning's session 
was that it was a special session to dispose of the business brought 
before it that the afternoon session, commencing at two o'clock was 
the regular session of the day. I stated that that was the mation as ' o 
the order of the Convention. If I am correct we proceed at our 
regular routine work at two o'clock this afternoon. What is the 
further pleasure of the Convention? 

Mr. Dickinson: I move we do adjourn 

Mr. Hole: The Committee on Schedule is ready to report. 
If it is in orde now we will hand in our report. I was in doubt 
as to whether it is in order. 

Mr. President: My own interpretat'on was that we met or 
that specific purpose, that the report of the Committee on Schedule 
might be made this morning. 

Mr. Hole: The Committee is ready to report. 

The President: Is objection made to receiving the report of 
the Committee on Schedule and Ordinance? It will be received 
if no objection is made. 

Mr. Van Buskirk: I understood that there was a mot' on before 
the house to adjourn. I was desirious that this report be on the 
table of all the members, but I think perhaps we will get along about 
as fast if we look these over carefully. I would move that we ad- 
journ until two o'clock this afternoon, at the regu'ar time. 

Received a second. 

Mr. Hole: Bear with me a moment. The printed report as 
on the desks has been amended by the session this morning and it 
might be well to read that over and call attention to those amend- 
ments and mark them and to that end I .suggest that it be read 



SCHEDULE AND ORDINANCE 273 

first and the amendments marked and you can study it at your 
leisure. 

Mr Van Buskirk With the consent of the second and with the 
privilege of renewing the motion to adjourn, I have no objection 
to that. 

The Clerk here reads the report of the Committee on Schedule 
and Ordinance, as amended, according to the report of the Chairman 
of the Committee. 

Mr. Van Buskirk: I renew the motion to adjourn. 

Which motion prevailed. 

The Convention stood adjourned until two o'clock this after- 
noon, 2 P. M., July 26th 1889. 

Two o'clock P. M. Convention reassembled pursuant to 
adjournment. 

The President: The Convention has under Consideration the 
report of the Committee on Schedule and Ordinance. 

Mr. Hole: Do we undertsand that this is the first order of 
business? Is this an adjourned meeting or the regular meeting? 

The President : I understood this morning that the Convention 
adjourned last night for a specific purpose to this morning, but upon 
further examination of the Journal I am persuaded that it was 
adjournment till nine o'clock this morning. I think the session 
commenced this morning at nine o'clock of this day and that this 
is part of the morning session. 

Mr. Hole: Then if I understand the report of the Schedule 
Committee is properly before the Convention. I would move its 
adoption ami wish to add to that motion a few remarks just now. 
We have entered the danger field and it is with much timidity that 
I stop upon this thin ice for I know the water is deep. But in sub- 
mitting this report 1 refer with no little pride to the work of your 
Committee. On the superstructure that is to bear us safely ovef 
the- period of change from a grand Territory to a grand State. 
Whether or not we have- well builded, time alone can tell; we may 
have left out a brace here or failed to tighten a burr there which 
may result in weakening our structure. But whatever misfits 

or mistakes the future may develop \\i\\ be found to be the out- 
growth of our peculiar and ditficult environment with powers 
abridged beyond all parallel or precedent in the history of the Con- 
stitution. Our task has been to dove-tail together two^dist iiu.t. 
mechanisms far separated as to political sixe. It will not be Mir- 



274 SOUTH DAKOTA DEBATES, 1889. 

prising then if some judicial fillings may be found to be necessary 
to perfect the symmetry of our work. Be this as it may, your 
Committee will ever remember having worked in harmony at t'mes 
on different lines but to one common end and looking for one com- 
mon light and your Committee believes, in submitting this report, 
they furnish you for your consideration a safe .chart to statehood. 
We agree upon all matters but one ; wherein we do agree we ask that 
no radical change be made without careful and painstaking con- 
sideration by this Convention, as this Schedule which we have sub- 
mitted is the outgrowth of much deliberation and thought, and 
wherein we differ we ask that there may not be haste. But may 
every delegate carefully consider the responsibility and possibilities 
of his vote and act as becomes the dignity and importance of this 
subject. May it be put in the minds of every member of this Con- 
vention to ask wisdom from that unerring source to guide us to 
rightly consider our duty to our God, to ourselves and to the great 
State to be; Mr. President, I move the adoption of the report. 

.Mr. Peck: I beg to move, seconded by Mr. Williams, the fol- 
lowing resolution, that Section 7 of the report of the Committee 
on Schedule and Ordiannce be amended by adding the following 
thereto: 

Amendment sent to the desk of the Clerk. 
Mr. Peck: I do not propose, Mr. President, to occupy any 
time at all in discussing this resolution that I have just submitted; 
That amendment we offered has so fully been gone over by every 
member, and I think so fully understood, it would be a piece of pre- 
sumption on my part to expect to enlighten any of the members. 
I am simply acting as representative of the people who sent me 
here. I was instructed to get as near the Australian system of 
voting as I could. That is not the Australian system ; I do not 
claim for it perfection, it is the principal we are after and if the 
principle of it is adopted we can then go into Committee of the 
Whole and submit the revision of the resolution, and as I will ever 
pray. I shall simply confine myself to correcting any person who 
has mistaken any of the provisions of this resolution ; I shall simply 
claim in the end, the right to explain them and no more ; I want no 
more. 

The President: I would ask the gentleman if he prefers to 
take it up now ? I suggest to the Convention I think a more proper 
and parlimentary method would be to read it section by section 



SCHEDULE AND ORDINANCE 275 

and let this amendment be made as we reach the section. Unless 
I am directed otherwise, I shall direct the Clerk to read it section 
by section. 

Mr. IVrk: As long as n y motion stands there I have no ob- 
jection. 

Mr. Van Buskirk: Inasmuch as there are two reports, I would, 
move that the consideration of the report of the Schedule Committee 
and the two reports of the Judiciary Committee be taken up and 
considered together. 

Motion received a second. 

The President: If I remember this report from the Judiciary 
Committee, it was only their opinion as to a legal question pos- 
sibly it may be a recommendation as to the election, I do not 
remember. 

Mr Sterling: The Committee did express it as their opinion 
that the Convention had the power to provide for the election of 
Circuit Clerk and recommended that to the Schedule and Ordinance 
Committee and that a provision to that effert be put into the 
Schedule and Ordinance. That was the report of the Judiciary 
Committee on that question. 

Mr. Jolley: By adopting or rejecting either the majority 
or the minority reports we can decide one thing or the other and 
when the Schedule is amended if the majority of this Convention 
are in favor of electing the Clerk this fall, then it becomes a part 
of the rule adopted. 

Mr. Wood of Pennington: I would suggest there is a care- 
fully prepared amendment. 

The President: I think that covers the whole ground. 

Mr. Van Buskirk: All I care for is simply to expedite the 
business of the Convention. 

Mr. Wood: I would suggest that we now have the amendment 
at this time, that would present the question in the proper light 
before the Convention. 

The President: It seems to me the more regular way of 
reaching these amendments would be in Committee of the Whole, 
reading it section by section; otherwise we will never get through 
to the consideration of the report of the Schedule Committee. 
Unless otherwise directed by the Convention the Clerk will read 
section by section and when the amendment pertaining to any 
section, as it is read, the amendment can be offered. The gentle- 



276 SOUTH DAKOTA DEBATES 1889 

man from Hamlin presented his amendment to Section 7 when 
we read Section 7, I will instruct the Secretary to pause long enough 
that it may be heard and considered by the Convention. 

Mr. Fellows: I move that we go into Committee of the Whole 
upon consideration of the report of the Committee on Schedule. 

Which motion did not receive a second.. 

The President: Proceed with the reading. 

Clerk reads Section 1. 

Mr. Young: I move the adoption of this section. 

The President: There is pending a motion which"" is the 
adoption of the whole report by the Chairman of the Committee. 

Mr. Young: The motion is withdrawn. 

Mr. Hole: As we will strike a place directly where we cannot 
agree but will diverge into a long discussion, if it will facilitate 
matters I will change the motion to adopt it section by section and 
then we will clear this up as we go. I will, with the consent of the 
second withdraw the motion to adopt the report as a whole. 

The President: The question before the Convention is, shall 
Sec. 1 be adopted by the Convention. 

This question on reaching a vote, the' President declared the 
result to b: as follows: "The ayes ha\ e it Sec. 1 is adopted." 

The Clerk read Section 2. 

Mr. Hole: I will make the same motion as to Section 2. 

Which motion prevailed. 

Section 3 read by the Clerk. 

Mr. Sherwood: I rise to ask an explanation of the words 
"Within the boundary of the State of South Dakota". It seems to 
me in that provision, a bond executed any place outside of the 
State of South Dakota, even by residents of the State, would be 
entirely null and void. 

Mr. Van Buskirk: I have thought of that and suggest that 
as far as the officer is concerned that it states as to any office therein, 
and move that the word "therein" be inserted after the word 
"officer". 

The motion received a second. 

Mr. President: It is moved by the gentleman from Codington 
that the word "therein" be inserted in the eighth line, after the 
second word of the eighth line. Those of the opinion that the 
motion prevail say "aye"; those of the contrary opinion say "no". 



TERMS OF TERRITORIAL OFFICERS 277 

The ayes have it and Section 3 is amended by inserting the word 
"therein" after the word "officer." 

Question recurring upon the adoption of Section 3, as amended 
was adopted. 

Clerk reads Setcion 4: All officers, civil and military, now 
holding their offices and appointments in this Territory under the 
authority of the United States, or under the authority of the Ter- 
ritory of Dakota, shall continue to hold and exercise their respec- 
tive offices and appointments until superseded under this Con 
stitution. 

Provided; That the provisions of the above sections shall be 
subject to the provisions of the act of Congress providing for the 
admission of the State of South Dakota, approved by the President 
of the United States, on February 22, 1889. 

Mr. Hole: I move the adoption of the section just read. 

The President: The Chairman of the Committee moves the 
adoption of Section 4 ; as many as are of the opinion that the motion 
prevail, 5 ay aye ; the ayes have it, Section 4 is adopted. 

Mr. Williams: I have one or two amendments prepared con- 
cerning this section and before I offer it I wish to suggest verbally 
an amendment in the second paragraph from the last, after the 
word "and" in the first line, 

Mr. Hole: That is a mere clerical error in this line and also the 
last 'ine. 

Mr. Williams: I have an amendment which I offer further 
and I will say that I have a number of amendments to offer to the 
different sections and they are all fastened together on the same 
paper. I will read them, I move that the report of the Committee 
on Schedule and Ordinance be amended as follows: That Section 
5 be amended as fellows': After the word "State" in the fourth 
line of the 7th paragraph insert the words "and county" so it will 
read "for the following State and county officers" and at the end of 
paragraph 8 of said section add the words "and Clerk of Circuit 
Court". I move the adoption of the amendments. 

Which motion received a second. 

The President: It is moved to amend Section 5 by inserting 
after the word "State" the words "and county" and at the end of 
paragraph 8 "and clerk of the Circuit Court". 

Mr. Williams: That is the question referred to by Mr. Van 
Buskirk. It is a question upon which members of the Convention 



278 SOUTH DAKOTA DEBATES 1889 

have differed and a question upon which, while differing, we are 
very desirious it should be settled in accordance with the Consti- 
tution and the Omnibus Bill, and what is right and just. Of course 
this question is confined there in the Omnibus Bill; does it provide 
by Ordinance for the election of Clerk of the Circuit Court? Those 
who favor the proposition that we have authority under the Omni- 
bus Bill for the election of Circuit Clerk, base our belief upon two 
different parts of the Omnibus Bill. Section 9 I will read all of 
Section 9 so as to get the commencement, "Sec. 9. That until the 
next general census, or until otherwise provided by law, said States 
shall be entitled to one representative in the House of Representa- 
tives of the United States, except South Dakota, which shall be 
entitled to two; and the representatives to the fifty-first Congress 
together with the Governors and other officers provided for in said 
Constitutions, may be elected on the same day of the election for 
the ratification and rejection of the Constitutions ; and until said State 
officers are elected and qualified under the provisions of each Con- 
stitution and the States, respectively, are admitted into the Union, 
Ihe Territorial officers shall continue to discharge the duties of their 
respective offices in each of said Territories." 

Now I take it that that means this: The words "other officers," 
that without any stretch of construction, this Convention under that 
is authorized to provide for the election of every officer of the State 
and county provided for in this Constitution. And though we do 
not carry it to that extent, I believe we have that authority ; that it 
is not only the duty and privilege of this Convention, and power, 
but it is the duty of the Corfc-ention to provide for this office ; why? 

I believe it is generally conceded that the Clerk of the District 
Court under the present system that we have when the Sta f e gov- 
ernment comes into existence and the District Court going out of 
existence that the Clerk will follow and that we will have the office 
and election of the Judge of Circuit Court as provided for ; but there 
is no p-ovision made for the clerical work of that Court; then we 
will have a court without any clerk ; that is conceded by some as be- 
ing the condition in which we will find ourselves after we are ad- 
mitted. Now that being the case in our view it is necessary 1 o fill 
that office. While this C invention may by ordinance have power 
to fill it as the Convention of 1885 did by providing that the Clerk 
will held' over, I think it is very doubtful. The Constitution 
adopted in 1885 by which we are bound, provides that the Clerk 



CLERKS OF COURT 279 

of the Circuit Court is an elective office. I hold, that being an 
elective office that the Clerk of the Court must be elected before an 
appointment can be made to fill a vacancy. Sec. 32 of Art.V of 
the Constitution reads as follows: "There shall be a Clerk of the 
Circuit Court in each organized county, who shall also be clerk of 
the county court and who shall be elected by the qualified electors 
of such county. The duties and compensation of said Clerk shall 
be as provided by law and regulated by the rules of the court con 
sistent with the provisions of law". Then the Constitution un- 
equivocally provides for that office. We have another section of 
the Omnibus Bill that is still more sweeping in its terms and ex- 
presses this view. Sec. 24 reads as follows: "That the Consti- 
tutional Convention may by ordinance provide for the election of 
officers for a full State government." 

For the election of officers for a full state government ! We hold 
further that the phrase "full state government" does not mean the 
officers usually denominated State officers, only, but officers that 
will make a state government complete in all its parts. Not only 
does it say in my judgment entitled by this instrument, but this, 
including county officers, and other officers that are provided for in 
this Constitution. I believe that phrase will include all of them. 
Taking these two sections there is no question but what the power 
is provided for us to provide for the election of the Clerk of the 
Court. 

Sec. 5 of Article IX of the Sioux Falls Constitution we have the 
reason for some objections that are raised to the position that I 
maintain with others. That section reads as follows: "In each 
organized county at the first general election held after the ad- 
mission of the State of Dakota into the Union and every two years 
thereafter there shall be elected a Clerk of the Court, etc. It says 
at the first general election there shall be elected a Clerk of the 
Circuit Court. This Constitution, while it provides and defines 
when and what a general election is, in a certain way, the term 
general election is used there ; there was a definition of the term 
"general election", in cases of all general elections occurring on even 
numbered years. 

Then under this provision the Oerk of the Circuit Court will 
be elected in June, 1890. Xo\v how are we to bridge over until 



280. SOUTH DAKOTA DEBATES 1889 

1890? That is a point that is interesting many of us. We want 
to provide for that office until November, 1890. Looking at the 
Omnibus Bill we have found in two sections ample authority for 
this Convention to provide for that. I believe not only that we 
have authority, but it is our duty to do so and it is generally de- 
manded by the people we represent to provide for this election. 

A Voice: Let us hear the section under consideration, read. 

The Clerk reads Section 5. 

Mr. Van Buskirk: We have with some other members of the 
Committee reached a somewhat different conclusion with reference 
to the position which we occupy upon this particular subject. I 
have supposed that when Congress was dealing with the question 
that they were taking into consideration what usually in the history 
of the administration of the law as it had existed in other states 
would be made to apply here and to that history we may refer for 
the purpose of determining what offices are referred to here and 
included within the provisions of the Omnibus Bill. I will call 
the attention of the members to the Second Article of the Consti- 
tution of Dakota, known as the Sioux Falls Constitution. I do this 
for the purpose of their observing that all state constitutions like 
ours contain this provision. I do it for the purpose of ascertaining 
who are state officers in particular. 

"The powers of the government of the State are divided into 
three distinct departments, the Legislative, Executive and Ju- 
diciary. And the powers and duties of each are prescribed by this 
Constitution". Now we will remark that while we have theoret- 
ically a State possibly without any difference in the administration 
of law, practically we have no State government without the election 
of State officers. And that when they are speaking in the Enabling 
Act of "State officers," they are referring to officers who fill these 
different positions necessary to the exercise of the powers of the 
State government. The government of the State can be exer- 
cised by officers filling these particular positions in existence. 
The members of the Legislature would make the law of the State 
the courts would determine the meaning and interpretation of 
them and issue their process and put them into the hands of the 
Executive Department and they would be executed ; and certain of 
the other officers like the Treasurer, would constitute a branch 
which would be called the Executive, the Legislature would be 
the Legislative Department ; the Judicial officers would exercise the 



CLERKS OP COURK 281 

Judiciary functions ; when you have got those you have got all 
that is perhaps absolutely necessary to constitute a whole state 
government. As I have said, I apprehend that when Congress was 
using the terms which they have used in the Omnibus Bill they were 
using them in the light of the provision that was contained in this, 
and which provision is contained in all other constitutions. Now, 
let us proceed a little further and consider this Omnibus Bill. The 
Section 9, to which my Brother Williams has referred, "That until 
the next general census, or until otherwise provided by law, said 
states shall be entitled to one representative in the House of Rep- 
resentatives of the United States, except South Dakota, which 
shall be entitled to two; and the Representatives to the Fifty-first 
Congress, together with the Governors and other officers provided 
for in said Constitutions, may be elected on the same day of the 
election for the ratification or rejection of the Constitutions ; and 
until said State officers are elected and qualified under the provisions 
of each Constitution and the States, respectively, are admitted into 
the Union, the Territorial officers shall continue to discharge the 
duties of their respective offices in each of said Territories." 

Now, I suppose by a familiar rule when we speak of other 
officers, we are referring to a particular class, to-wit: The State 
officers, among which the Governor is one; that when they state 
other State officers they refer to that class which immediately pre- 
ceeds, to-wit: The Executive Department of the Government, 
and do not refer to county officers. And I am further, by that 
section, inclined to that belief. We find before we conclude that 
section, "and until said State officers are elected" the Territorial 
government shall remain. 

Taking the first part even without the other, I should arrive 
at that conclusion; I am confirmed in the belief that that was what 
was meant from the fact that they state " until the State officers 
are elected" and qualified, etc. I do not see how, under that, you 
can rationally reach any other conclusion, but that they are speak- 
ing of the governors and Treasurer and Auditor and perhaps the 
Superintendent of Schools ; that those are the officers denominated 
State officers. 

Now, I understand very well in the early legislation of this 
country we had no difficulty in separating the State from the county 
officers. If an individual inquires "Who arc the State officers. I 
do not think anybody ever thought of stating they included Mr. 



282 SOUTH DAKOTA DEBATES 1889 

Register of Deeds, or Constable, or Mr. Pathmaster; but he would 
say the Governor and Treasurer and Judges of the Circuit Court 
were State officers. Here is another matter stated perhaps in most 
all of our constitutions; it is found in this one; a provision which 
says in case of a vacancy the Governor shall appoint all these of- 
ficers down to the County Judge; the other officers are to be ap- 
pointed by the Board of County Commissioners. It seems that 
in our Constitution, and I assume that Congress drew that line 
right through there separating the officers of State from the county 
officers. It seems to me that is what it means. We may proceed 
to another provision of this Omnibus Bill, w^hich adds force to this 
concktsion. I read it: "That the Constitutional Convention may 
by ordinance, provide for the election of officers for full State 
government including the members of the Legislature and Repre- 
sentatives of the Fifty-first Congress". It seems a little singular 
to me that if all other officers aside from those that are determined 
State officers were included within those teims they should have 
taken so much pains as to have said "including the members of 
the Legislature". Now that circumstance, using that language 
forces me to the conclusion that they intended when they spoke of 
the officers of the State government to have in mind those which I 
have mentioned, and to have no question about it they say in- 
cluding the members of the Legislature. It seems to me that if 
they had intended that every officer down to Pathmaster was to be 
denominated a State officer, they would not have taken pains to 
have used that language at all. We read a little lower "But that 
said State government shall remain in abeyance until the States 
shall be admitted into the Union, as provided in this act". 

Now this Legislature, together with another rule which Con- 
gress had no doubt in mind, (it seems they had confined themselves 
to the Constitution of 1885 a great many times) they indicate a 
provision which reads in this way, that there shall be elected at the 
first general election after the admission of this State into the Union, 
county officers, which includes this Clerk of the Circuit Court. I 
say I assume from the circumstance that they had had this Con- 
stitution before them so many times and so long that these pro- 
visions were in their minds and before them when they drew this 
Omnibus Bill; they anticipated or intended that that should be 
correct and that that should be the result of it and that that was 
the construction they put upon it from the language used in this 



CLERKS OF COURT 283 



Omnibus Bill that perhaps constitutes the principal legal objection 
to the introduction of this amendment into the ordinance. It seems 
to me remarkable that we should stoop in this Convention, that 
we should stoop to provide for one solitary county officer as a matter 
oLpolicy. 

It is simply a question of whether or not we have got the power ; 
I take it under the provisions of this bill that these county officers 
hold over; and the very fact that they say in this Constitution, 
"Clerk of the Circuit Court"; I cannot think that that has any 
significance, because if we take what they do in some of the other 
states, where the courts are denominated "District Courts", just 
as many of the States instead of taking the term"Circuit Court" 
continue the original, in the State of Iowa, they continue the 
name, "in District Court". The mere circumstance that a Court 
exercising the same jurisdiction under the Constitution is to be 
called Circuit Courts here with the same jurisdiction that was ex- 
ercised under the law previously in existence, to-wit: The Dis- 
trict Court and which is the same Court, and which exercises the 
same jurisdiction succeeds to all the powers and succeeds to all 
the unfinished business contained therein, the mere fact that they 
state this shall be called the Circuit instead of the District Court 
can have no significance so far as the Clerk being a County officer.. 
I think you will find also that so far as our statute is concerned, it 
provides for a Clerk of the District Court. We have a statute upon our 
books passed by the Legislature of the Territory, in which it was con- 
sidered a county office just as much as the Register of Deeds, and 
perhaps many of us will remember at the next general election that 
in many counties of this Territory they went to work and elected 
Clerk of the District Court. It seems to me that the circumstance 
that the Legislature of this Territory in the next session after 'the 
adoption of the Constitution of 1885, provided for the election of 
this officer, Clerk of the Court as a county officer, must settle in 
the mind of every careful citizen the fact that they are not State 
officers, but simply county officers who hold over under the laws 
of the Territory. 

Mr. Williams: I do not wish to prolong this debate, but I 
wish to correct an error. He reads Article second of -the Constitu- 
tion in support of his doctrine; I wish to read it: "The powers <>t" 
the government of the State are divided into three distinct depart- 
ments, the Legislative. Executive and Judicial, and the powers 



284 SOUTH DAKOTA DEBATES 1889 

and duties of each are prescribed by this Constitution". He goes 
on to say the powers of each are distinct and separate. Now the 
Ordinance does not say that we can provide by ordinance for the 
election of. the officers of each of these departments! It goes on to 
say the powers of the government are divided into three classes, 
three distinct classes, that is what Article II is; it provides that 
the powers of government enacted there and exercised by the will 
of the people is divided into three departments laid down, and in 
order that these three departments of government, as laid down, 
may not fail, we will turn to another article. Article V and see 
what is necessary to complete these three powers of government. 

The Judicial powers of the State, except as in this Constitution 
otherwise provided, shall be vested in the Supreme Court, Qircuit 
Courts, County Courts, and Justices of the Peace, and such other 
courts as may be created by law for cities and incorporated towns. 

According to his own doctrine, in order that the full State 
government may be filled, we must elect the Justices of the Peace. 
I want the members of the Convention to think of that, I want 
to correct another mistake; that is this: The gentleman from 
Codington said, after the adoption of the Constitution in 1885 that 
the Legislature went to work and provided for the Clerk of the Dis- 
trict Court ; my understanding of that is that the Clerk of the Dis- 
trict Court was provided by Act of the Legislature prior to that, 
because I have a distinct recollection that the question came up 
in 1884 and 1885 and the attempt was made in our town to elect 
one ; and that it was overruled ; that it was decided by the bar of 
this Territory that the Legislature had no power ; the point I wish to 
make is this, that the statute was not passed in pursuance of this 
Constitution of 1885, but was an act of the Legislature without 
reference to this. 

Mr. Wood of Pennington: I desire to say a few words on this 
question and for two reasons ; I am mistaken in my understanding 
of the proposition or else the gentleman who resisted the election 
of the Clerk of Court at a common election was mistaken. This is 
a matter that we should get right upon, if we can. In the first 
place the report of the Committee provides in section four, "All 
officers, civil and military, now holding their offices and appoint- 
ments in this Territory, under the authority of the United States, 
or under the authority of the Territory of Dakota, shall continue to 



CLERKS OF COURT 285 



hold and exercise their respective offices and appointments until 
superseded under this Constitution". 

We are told here by the gentleman from Codington that it is 
the same court; let us see about that. These courts, under the 
Constitution will be State Courts ; there will be no issue raised upon 
that proposition. Now we take that for granted and I think it is 
granted that they are State Courts. Hardly the District Courts of 
the Territory of Dakota; they are Federal Courts, that is with this 
difference ; they have the jurisdiction conferred by our Statute upon 
the District. Courts and in addition to that they have the Jurisdic- 
tion of the United States Circuit and District Courts conferred upon 
them by the United States Circuit and District Courts and they 
have the jurisdiction of those courts conferred by law. 

Will the gentleman contend for one moment, can anyone con- 
tend on principle that our Circuit Courts, after we are admitted into 
the Union, and these Courts are organized, will it be contended that 
they are the same grade or successor of the District? Why, it is 
the creation of a different and distinct tribunal and Court! Not 
the same at all. Every one of these District Courts of the Ter- 
ritory, get their life not from any law of the Territory ; I apprehend 
in the first instance they get their life and authority from the Or- 
ganic Act. Hence, they are not Territorial Courts in the sense of 
being merged into State Courts; their Clerks are appointed by the 
Courts themselves ; we have the same provision relative to the 
Clerks of the Supreme Court and the reporters of the Supreme Court: 
"There shall be a Clerk and also a Reporter of Supreme Court who 
sliall be appointed by the Judges thereof and who shall hold their 
office during the pleasure of the Judges". It is not even an elective 
office. What business have we to provide for other offices not to 
be superceeded by the State government? Is the office of Sheriff 
to be superseded? Or Coroner or Probate Court? That Court 
is superseded by the County Court in other words there is a merger 
itito the county courts. 

Who will contend that a County Judge is a State officer? We 
are cited to the Second Article of the Constitution, which defines 
that departments into which the State government is divided. 
the Legislative, Executive and Judiciary . Who will say all 
Judiciary oVfu ers are State officers? I think the gentleman will not 
contend that a Justice of the Peace is a State officer, yet the Con- 
stitution in enumerating the phu cs under the judicial powers. 



286 SOUTH DAKOTA DEBATES 1889 

names the Justice of the Peace as one of them. He is not a State 
officer in any sense. Where do we hear of a Jusitce of. the Peace 
being superesded by the State government? 

They have been elected, qualified and gone about their busi- 
ness as provided under the laws of the Territory ; they are not super- 
ceeded; that is, their business is not affected by the terms of the 
Constitution. 

Now, it is plain, one of the first questions that will arise unless 
we provide for the election of the Clerks of Circuit Court ; they are 
ex-officio Clerks of the County Court. For fear that will not be 
understood, I refer the Convention to Sec. 32, of Article V, and you 
will see that they are ex-officio Clerks of the County Court. The 
section referred to reads as follows: "There shall be a Clerk of the 
Circuit Court in each organized county, who shall also be Clerk of the 
County Court, and who shall be elected by the qualified electors 
of such county. The duties and compensation of said Clerk shall 
be as provided by law and regulated by the rules of the Court con- 
sistent with the provisions of law". 

The Schedule report has provided for the election of the 
County Judge ; it is contended that he is a State officer. Turning 
to Section 19 of Article V it reads as follows: "There shall be 
elected in each organized county a County Judge who shall be Judge 
of the County Court of said county, whose term of office shall be 
two years, until otheriwse provided by law." What is the Consti- 
tution defining in that office? It is a county office. "There shall 
be elected in each organized county" what? A state officer, to be 
known and termed County Judge ? Not at all ! But, in each county 
shall be elected a county Judge. His office is a County office, known 
as County Judge. You are to provide for the election of a County 
Judge, yet you pretend that he is a State officer; whereas the Clerk 
of his Court, being a Clerk ex-officio, is not a State officer but a 
county officer now where do you draw the line ? 

Mr. Dickinson: "All officers provided for in this Article shall 
respectively reside in the district, county, precinct, city, or town 
for which they may be elected or appointed" ? 

Mr. Wood: Very well. Gentlemen of the Convention; No- 
taries Public are appointed by the Governor ; they are not elected at 
all ; are they considered Territorial officers ? I think you will find 
with the exception of the States of California and Kentucky that 
the courts hold that they are State officers. A different rule pre- 



CLERKS OF COURT 287 

vails in some of the states they are authorized to perform the duties 
and functions of that office simply in the county where their cer- 
tificate of appointment is recorded. They can of course have it 
recorded in each county in the State, but until so rcorded they can 
only act on the county where it is so recorded. Then the distinction 
in the appointing power to fill vacancies ; the distinction is as to 
whether the office is a county or a State office. "Vacancies in the 
elective offices provided for in this Article shall be filled by ap- 
pointment until the next general election as follows: All Judges 
of the Supreme, Circuit and County Courts by the County Board 
of the county where the vacancy occurs ; in cases of police magis- 
trates, by the municipality." The Governor is told to fill the va- 
cancy in the County Judge's office by appointment; but does that 
determine to your satisfaction, and from that reasoning can you 
say it creates and makes the Judge of the County Court and his 
Clerk a State officer? If a State officer, why is not his salary paid 
by the State? We do not find any provision of that kind in the 
Constitution ; whereas the Circuit Court Judges receive their salary 
from the State. I find this: I think, and I think the majority 
of the Convention will agree with me that the Judges of the County 
Courts are county officers and not State officers at all, under this 
Constitution, that the Probate Court is superseded or will be 
superseded by the State govrnment ; at least the Committee took 
that view of the matter that the Clerk of the Circuit Court is ex- 
officio Clerk of the County Court. The election of these Judges was 
provided for, but these Judges of these courts are to be provided ac- 
cording to the provisions of this Constitution with a Clerk ; 
he is an officer distinctively of that Court and without we provide 
for that Clerk, your Court is incomplete isn't it, under the Con- 
stitution? Is not that true? I say, unless we provide for the elec- 
tion of the Clerk, having elected your Judges you have not fully pro- 
vided for the organization of these Courts; and not having fully 
provided for the organization of these Courts, then they do not, and 
cannot exist in their entirety as contemplated by the Constitution. 
They say if we elect the Clerk of the Court we have got to go right 
down through the list and elect all the other county officers; that 
is true, if you can show where these officers will be superseded by 
the State government; but we find on the contrary, they are con- 
tinued straight through. In fact, these officers are continued not 
only in power, but in name, as existing under the laws of the Ter- 



288 SOUTH DAKOTA DEBATES 1889 

ritory ; the laws of the Territory are continued right forward; noth- 
ing superseded excepting those of which it can be said by reason 
of there being a provision displacing them, under the State Con- 
stitution, they are superseded; everything else is continued. , 

I turn to the office of Sheriff and Register of Deeds, but there 
is a difference between those and the Clerks of the District Court. 
That is not an elective office under our law at all ; the Legislature 
passed an act of that kind, or a certain Legislature did attempt 
to. While that question never went to the Supreme Court of this 
Territory the question was raised in this very district ; the District 
Court of this District, I think in this count} 7 , held that the Legis- 
lature had no such power; at any rate the question was determined 
in some of the counties of South Dakota ; we elected a Clerk of the 
Dirtrict Court in Pennington County, but by reason of that decision, 
which we obtained, he never qualified and the old Clerk went on 
by virtue of his appointment. I think from these various pro- 
visions it will appear to the Convention clearly that we should elect 
all the officers proper to be elected in order to set the State govern- 
ment in full motion under Section 9 of the Omnibus Bill. Com- 
mencing with line five of Section 9, "And the Representatives to 
the Fifty-first Congress, together with the Governors ond other 
officers provided for in said Constitutions (providing for all four 
States in the act) may be elected on the same day of the election 
for the ratification or rejection of the Constitutions ; and until said 
State officers are elected and qualified under the provisions of each 
Constitution and the States, respectively, are admitted into the 
Union, the Territorial officers shall continue to discharge the duties 
of the respective offices in each of said Territories". That is they 
may be elected on that day or they may be elected on some other 
day, but they must be elected. Some gentlemen may contend that 
there is an appointing pow-er somewhere. Is there an appointing 
power for an elective office before that office is filled by an election? 
There is no such thing known as a vacancv in an elective office until 
an election has been had unless the law provides that the first 
incumbent can be appointed; you cannot have such a thing as a 
vacancy until an election has been had. It will be contended 
perhaps that this same section has a provision obviating the dif- 
ficulty "until such State officers are elected". It is contended by 
reason of that language that our power is confined to State officers 



CLERK OF COURTS 289 

only. It is one of the incomprehensible things how anyone can 
contend that that is true. Look at the language again. 

Mr. Stroupe called to the chair by the President. 

Mr. Wood: "And other officers provided for in said Consti- 
tution may be elected on the same day of the election for the rati- 
fication or rejection of the Constitution". Now, they do not con- 
tinue the discussion relative to the officers or all of the officers 
contained in the first provision ; they are simply now proceeding to 
define what shall take place, or what shall be done when the States 
arc admitted, and what shall be true until they are so admitted; 
they are not limited in any sense, the language is simple and distinct 
that all officers provided for in the Constiuttion shall be elected, 
and we may provide for their election at the coming election. Since 
we have provided for the election of these Courts it seems to me it 
will be our duty also to provide for the election of these Clerks be- 
cause until you provide for the election of these Clerks you cannot 
organize the Courts ; and until the Clerk is elected the appointing 
power cannot be exercised because no vacancy can exist in an elec- 
tive office until there has been an election unless the law creating 
the office provides the first incumbent may be appointed. Then 
I say, there being no such provision that an incumbent of the office 
of the Clerk of the Circuit Court can hold by appointment ; there 
must be an election before there is any vacancy in that office. There 
is no doubt in my mind but what the State government will sup- 
ersede everything connected with the district court, theri you will 
not have a Clerk of the Court at all ; he cannot hold over, he has no 
authority under the State government, it all comes from the Judge, 
not through the people and until you elect a Clerk you will have 
none and I contend there is no appointing power other than the 
County Commissioners and they are judges themselves. The Cir- 
cuit Judge might contend that he had the appointing power, the 
County Judge might contend that HE had the appointing power, 
and so as well, the County Commissioners might contend that they 
possessed the appointing power. You will have a row in every 
county in the State; there will be a regular scramble. In some 
localities they will have a dispute as to the appointing power, then, 
then if we pass this without providing for the election of the Clerk 
you will see the magnitude of the error committed ; you will see where 
the critisism will fall and from whom; it will lie all the Clerks and 
everybody everywhere and they will say that the Constitution pro- 



290 SOUTH DAKOTA DEBATES, 1889. 

vided for the election of the Judge, why didn't it provide for the 
election of a Clerk as well ? 

Mr. Sterling: A great deal of the argument has turned upon, 
the necessity of the election of the Clerk of the Circuit Court upon 
the ground that there will be no person to fill that position and that 
there is no vacancy that can be filled by an appointment. This posi- 
tion was taken by some of the members of the Judiciary Committee 
and it was insisted that that being an elective office, no election 
being first held, the office was, so to speak, not organized. There- 
fore there was no vacancy that could be filled by an appointment. 
On the other hand it was contended that the Constitution created 
the office, that if there was an incumbent in the office there was a 
vacancy and that there was power to fill that vacancy by appoint- 
ment under the Constitution. I was somewhat surprised by the 
position taken by some of the members of the Committee in that 
respect. I took a little occasion during our adjournment to look 
up upon that point and as to whether there was any peculiar mean- 
ing to that word vacancy, in this connection, which would render 
such an important office as this vacant, because there was no 
election under the Constitution. In Dillion on Municipal Corpor- 
ations, Sec. 161 it is said (I am just reading from pencil notes ; I will 
refer later to the decision that is referred to in this case). In this 
case it is said that a resignation takes effect and vacates for all 
time. "There is no technical nor peculiar meaning to the word 
vacant, it means empty, unoccupied; as applied to an office without 
an incumbent. There is no basis for the distinction urged that 
it applies only to an office vacated by death, resignation or other- 
wise. An existing office without an incumbent is vacant whether 
it be new or an old one. A new house is as vacant as one tenanted 
for a year which was abandoned yesterday. We must take the 
words in their usual plain sense". I am reading from the case of 
Stocking vs. the State, found in the 7th Indiana, page 326. I have 
examined the case since we have convened, since recess today. It 
was a case where a party was indicted for murder and in a district 
which had been newly created. It provided for the electing of the 
Judge of that district. There was a failure to elect; there was a 
failure to even attempt an election of Judge and under the ap- 
pointing power given, the Governor of the State comes in and fills 
the vacancy in that office. The Judge was appointed, the man 
was tried, these questions were raised upon the trial of the party 



CLERKS OP COURT 291 



for murder. This is word for word' from a decision that was ren- 
dered from the Supreme Court of the State of Indiana, and there is 
an Indiana case following this which is precisely similiar. A case 
where election was provided by General Assembly. The General 
Assembly did not elect, the Governor filled the office by appointment. 
Now, is there any right to fill this office of Circuit Clerk by appoint- 
ment ? I say that there can be no question absolutely but what there 
is a vacancy. Sec. 37, of Article V, provides: "All officers pro- 
vided for in this Article shall respectively reside in the district, 
county, precinct, city, or town for which they may be elected or 
appointed. Vacancies in the elective offices provided for in this 
Article shall be filled by appointment until the next general election, 
as follows: All Judges of the Supreme, Circuit and County Courts 
by the Governor. All other judicial and county officers by the 
County Board of the county where the vacancy occurs ; in case of 
Police Magistrates, by the municipality." There is other authority 
for the election of the County Judge at this particular time than is 
found in Section 37. It is said because this officer is appointed by 
the Governor that he is a State officer, that as the Omnibus Bill 
authorizes the election of State officers, that the County Judge being 
a State officer may be elected now. Section 26, of the same Article 
V, provides that the Judges of the Supreme Court, County Court 
and Circuit Courts shall be chosen at the first election held under 
the provisions or this Constitution. So I contend that the makers of 
this Constitution plainly contemplated the election of the County 
Judges as w r ell as the Supreme and Circuit Judges at the first election 
held under the provisions of this Constitution. Now, gentlemen 
say that because we are authorized under the Omnibus Bill to elect, 
what? Not all the officers as the gentleman said, provided in the 
Constitution, that is not in the Omnibus Bill respect of all officers 
necessary for a full State government. Now when they made this 
Constitution and provided for the election of officers at particular 
times the makers of the Constitution knew, and I do not believe 
Congress intended to indicate with any uncertain tone what they 
knew. They knew all officers would be necessary to carry on State 
government; they had in mind that if there was a vacancy in this 
office of County Judge that it would be filled by the Board of county 
Commissioners ; they provided all the other county officers should 
be elected when? Not under the provisions of the Constitution when 
they got a case in the Courts, but at the first general election held 



292 SOUTH DAKOTA DEBATES 1889 

after the admission of the State into the Union. These different 
county officers should be elected. So I think, Mr. Chairman, that 
there is in the first place under this Constitution, no authority for 
the election of the Circuit Clerk, we have no warrant for it and I 
think in the second place that there is no necessity for it. 

Mr. Jolley: So far as the Omnibus Bill is concerned I do not 
think that Mr. Springer or anyone else who had that measure under 
consideration got so far down in elective officers as to provide for 
the election of county officers. All that they did provide for was 
the State officers. So far as the argument made by the gentleman 
from Pennington is concerned, while very ingenius and presented 
in a very able manner, falls flat. His premises are not correct. 
There is now, and will be until we are admitted under this Consti- 
tution, if we are admitted under it, a provision by which the Clerks 
of Court can be appointed in the several counties in this Territory 
by Judges of the District Court. They are now, 
they will remain there until we are admitted as the 
State of South Dakota under this Constitution, 
that is the District Courts of the Territory of Dakota. And just 
as soon as we are admitted under this Conststution, if we are 
admitted, the provisions for these changes under the provisions 
of the Constitution are amply full and complete as to what course 
shall be with reference to the office of Clerk of the Court and there 
is no doubt, not any ambiguity as to how that officer shall be ap- 
pointed and what his powers are. Sec. 32 read: "There shall 
be a Clerk of the Circuit Court in each organized county, who shall 
also be Clerk of the County Court, and who shall be elected by 
the qualified electors of such county. The duties and compensation 
of said Clerk shall be as provided by law and regulated by the rules 
of the Court consistent with the provisions of law." Under this 
Constitution we are attempting to thrust the provisions in Sec. 
32 that there shall be a Clerk of the District Court that shall be 
elected by law. If the position taken by the gentleman from Pen- 
nington is tenable then you have here a rule by which you can de- 
ceive the will of the people and do great injustice as long as you see 
fit to do so. Why? It is soberly contended that before there is a 
vacancy in any office created by law, there must be an incumbent 
to fill that office. Taking that rule, where are we? Supppose at 



CLERKS OF COURT 293 



the next general election we had elected a gentleman as Governor 
of this Territory before the State is admitted. This Governor dies, 
there is no vacancv in that office and it can not be filled, according 
to the proposition laid down by the gentleman from Pennington, 
before that Governor has been sworn in, that then there becomes a 
vacancy and then can it be filled. It must necessarily be a vacancy, 
his office is created, at the same time the duties; there is a vacancy 
in that office; that is law. To show what the intention of the 
framers of this Constitution was, Sec. 5 of Art. IX reads: "In each 
organized county, at the first election held after the admission of 
the State of Dakota into the Union, and every two years thereafter, 
there shall be elected a Clerk of the Court, Sheriff, County Auditor, 
Register of Deeds, Treasurer, States Attorney, Surveyor, Coroner, 
and Superintendent of Schools, whose term of office, respectively 
shall be two years, and except the Clerk of the Court, no person 
shall be eligible for more than four years in succession to any of 
of the above named offices. This Constitution by Sec. 32 says, 
Art. V says: "There shall be a Clerk of the Circuit Court in every 
organized county, who shall also be Clerk of the County Court, and 
who shall be elected by the qualified electors of such county. The 
duites and compensation of said Clerk shall be as provided by law 
and regulated by the rules of the Court consistent with the pro- 
visions of law." Sec. 5, Art. 9, says that we shall not elect the 
Clerk until the first election after we are admitted as a State under 
this Constitution. Sec. 37 says, as read, that where there is a va- 
cancy in the county offices that that office shall be filled by the 
County Commissioners. What can be more plain, clear and dis- 
tinct than that? That there must be, just as quick as we are ad- 
mitted, the office of the Clerk of the Circuit Court and we are pro- 
hibited by this Constitution from electing a Clerk of the Circuit 
Court until the first election after we are admitted, into the Union 
That instead of making these acts conflict by electing a clerk of the 
Court would but just add to the complication. There is no court 
in Christendom could take that to be the law. plain in its details in the 



294 SOUTH DAKOTA DEBATES 1889 

place of an act which would fly in the teeth and eyes of this Con- 
stitution, and against the rules laid down by it. No sir, the Con- 
stitution says there shall tm a Clerk of the Court and the Constitu- 
tion says we cannot elect that Clerk of the Court until the general elec- 
tion after we are admitted into the Union under this Constitution. 
And the Constitution further says that where there is a vacancy in 
the county offices it shall be filled by the Board of County Com- 
missioners and that is all it says. It is plain and clear. 

Mr. Sherwood: I desire to add one or two points to those of 
the gentleman from Pennington; I think that we have a right to 
elect a Clerk of the Court. I apprehend that the only question at 
issue here is the question of power. I do not think there will be 
any doubt among the majority of this Convention as to the ex- 
pediency or necessity of it. I desire to call attention to the re- 
marks of the gentleman from Spink in the case which he read. In 
relation to election under the Constitution, I desire to say that the 
election on the 1st day of October next is not under this Constitution. 
When the Constitution of 1885 was adopted, all the powers granted 
were the powers grant'ed under this Constitution. Today we stand 
in a different position. The powers we are moving under are the 
powers that eminate from Congress. Referring to Article 24 of 
said Omnibus Bill does it not provide in terms that all officers 
provided for under said Constitution might be elected ? I desire to 
read a portion of Sec. 9: "Representatives to the Fifty-first Con- 
gress together with Governors and other officers provided for in 
this Constitution." Now, in so many words it says "All other of- 
ficers provided for in this Constitution". Either those words mean 
nothing or they mean something. "The other officers." No one 
will contend for a moment but what the Clerk of the Court is one 
of the other officers, provided for under this Constitution, expressly 
is designated as one of the officers provided for under this Consti- 
tution. Now I say that these words mean something or they mean 
nothing. I desire to say further that the power to elect these var- 
ious officers carries with it the power to provide for their election; 
that is the common rule in relation to the interpretation of statutes. 



CLERKS OF COURT 295 



That must not be interpreted as follows: The intent of the statutes 
indicated by the framers of it must be taken into consideration so, if 
possible, to give a meaning to all portions of the statute. Now, 
to give it the interpretation that has been given it here today wipes 
out Sec. 9 and leaves Sec. 24 intact. Interpreted as we interpret it 
blends Sees. 9 and 24 and gives power to elect all of the State 
officers. 

Mr. Sterling: I stand corrected as to he words of the Omnibus 
Bill. I contend that that subject, the election of officers provided 
for under this State Constitution must be construed in reference to 
the Constitution itself at the times of the election provided for in 
the Constitution and that by instructing this Convention to re- 
submit this Constitution to the people they said, or expressed the 
meaning that the Clerks of the Court shall not be elected. 

(Calls of question from all over the house.) 

Mr. Willis: I am beginning to conclude that we who are not 
lawyers cannot stand much more information on this subject. 
I am about the opinion of the old lady, that she believed the Scrip- 
tures would still throw some light on this subject ; I shall begin to 
make a speech probably myself, if this continues. 

(Calls of question.) 

Mr. President: The question is upon the amendment of Mr. 
Woods, of Pennington. 

Mr. Sherwood: I call for the reading of the amendment. 

Mr. Williams: I will read it: "That Section 5 be amended 
after the word 'State' in the fourth line of the 7th paragraph by 
inserting the words 'and county' and at the end of paragraph 8 
of Section 5, add the words 'and Clerk of Circuit Court.' " 

The question on the amendment reaching a vote resulted as 
follows: Ayes 22; nays 39. The motion was declared lost, by 
the President, the following gentlemen voting aye: Messrs. Atkin- 
son, Boucher, Clough, Cook, Davies, Fowles Goddard, Hall, Hen- 
ninger, Huntley, Humphrey, Matson, McFarland, O'Brien, Peck, 
Sherwood, Smith, Spooner, Williams, Wood of Pennington, Zitka, 
and Mr. President. 22. And the following gentlemen voting nay 
Anderson ,Berdahl, Beuchler, Coats, Cooper, Corson, Couchman, 
Craig, Dickinson, Diefendorf, Downing, Eddy, Edgerton of Yank ton, 
Fellows, Gilford, Hartley, Hole, Houlton, Jolley, Kimball, Lee, 
Lyons, Ramsey, Ringsrud, Scollard, Stoddard, Sterling, Stroupe, 



296 SOUTH DAKOTA DEBATES 1889 

Thompson, Van Buskirk, Van Eps, Van Tassel, Wescott, Wheeler, 
Whitlock, Willis, Williamson, Wood of Spink, Young. 39. 

Mr. President: The question now stands upon the adoption 
of Section 5. 

Mr. Humphrey: I would call attention to the last two par- 
agraphs of the section, the last two paragraphs but one, the para- 
graph beginning "if it shall appear". The last clause of that par- 
agraph, the last clause of the next, it seems to me, that they are 
superfluous. I would not move that they be expunged, but I call 
attention of the Chairman of the Committee and if he thinks they 
are nesessary there I do not object absolutely. 

The Chairman: The motion is upon the adoption of Sec. 5. 
As many as are in favor will say aye. The ayes seem to have it ; 
the ayes have it. Section 5 is adopted. The Clerk reads Sec. 6 
as follows: 

Sec. 6. At the same time and places of election, there shall 
be held by said qualified electors an election for the place of tem- 
porary seat of government. 

On each ballot, and on the same ballot, on which are the matters 
voted for or against, as hereinbefore provided, shall be written or 
printed the words, "For temporary seat of government." 

(Here insert the name of the city, town or place to be voted for.) 

And upon the canvass and return of the vote, made and as 
hereinafter provided for, the name of the city, tow T n or place, 
which shall have received the largest number of votes for said 
temporary seat of government, shall be declared by the Governor, 
Chief Justice and Secretary of the Territory of Dakota, or by any 
two of them at the same time that they shall canvass the vote for 
or against the Constitution, together with the whole number of 
votes cast for each city, town or place, and the officers, above nanjed, 
shall immediately after the result of said election shall have been 
ascertained, issue a proclamation directing the Legislature elected 
at said election, to assemble at the said city, town, or place so 
selected, on the day fixed by this Schedule and Ordinance. 

Mr. Hole: I move the adoption of Section 6, as read. 

This motion received a second. 

The President: The question is upon the adoption of Sec. 6. 
As many as are of the opinion that the motion prevail, say aye. 
The ayes have it ; Section 6 is adopted. 

The Clerk reads Section 7. 



AUSTRALIAN BALLOT 297 

Section 7. The election provided for herein shall be under 
the provisions of the Constitution herewith submitted, and shall be 
conducted, in all respects, as elections are conducted under the gener- 
al laws of the Territory of Dakota, except as herein provided. No 
mere technicalities or informalities, in the manner of form of election, 
or neglect of any officer to perform his duty with regard thereto, 
shall be deemed to vitiate or avoid the same, it being the true intent 
and object of this ordinance to ascertain and give effect to the true 
will of the people of the State of South Dakota, as expressed by their 
votes at the polls. 

Mr. Peck: I ask the Clerk to read my motion which he has 
possession of. 

The Clerk reads: "That Section 7 of the report of the Com- 
mittee on Schedule and Ordinance be stricken out and the following 
be inserted in lieu therefore: 

RULES REGULATING THE ELECTION TO BE HELD UNDER THE AU- 
THORITY OF THE ENABLING AOT FOR THE ADOPTION OR REJEC- 
TION OF THE CONSTITUTION AND THE ARTICLES SEPARATELY 
SUBMITTED THEREWITH AND THE REPRESENTATIVES IN CON- 
GRESS; ALSO STATE AND JUDICIAL OFFICERS FOR SOUTH DA- 
KOTA. 

SECTION 1. That at the election to be held on the first day of 
October, 1889, the election laws now in force in the Territory of 
Dakota shall apply to and govern such election except as herein- 
after specially provided. 

SEC. 2. Nominations for State officers, Representatives in 
Congress and Judges of the Supreme Court shall be made by any 
State Convention and certified to by the Chairman and Secretary 
of such Convention, according to form number one (1) hereinafter 
provided, or by any three hundred (300) legal voters in South Da- 
kota attaching their names to a paper nominating candidates and 
filing the same with the Territorial Secretary. 

SEC. 3. Nominations for members of the State Legislature, 
Judges of the Circuit Court and Judges of the County Courts, shall 
be made by any Convention held in legislative and judicial distri' ts 
or county for which any such officer is to be elected, and certified to 
by the Chairman and Secretary, according to form No. 2 hereinafter 
prescribed, or by anyone hundred legal voters of any legislative 
or judicial district or count \ . by attaching their names to a paper 
nominating such officers, and filing the same with the County Clerk 
or County Auditor to which such nominations refer. 

SEC. 4. All certificates of nominations and nominating papers 
provided for in Section two (2) shall be filed with the Territorial 
Secretary by the fifteenth day of Septcmper, and all those provided 



298 SOUTH DAKOTA DEBATES 1889 



for in Section three (3) shall be filed with the County Clerk or 
County Auditor by the twentieth day of September, 1889, and no 
certificate of nomination or nominating papers shall be acted upon 
except accompanied with the consent in writing of the persons or 
persons therein nominated, provided that in case of death or resig- 
nation, the authority making such nomination shall be permitted 
to fill such vacancy by a new nomination. 

SEC. 5. The Territorial Secretary, on the receipt by him of 
the nominating papers hereinbefore mentioned, shall forthwith 
transmit true copies of the same to the County Clerks or County 
Auditors of the several counties in South Dakota. 

Sec. 6. The County Clerk or County Auditor shall, after the 
expiration of the time for receiving the nominating papers, forth- 
with cause to be printed such a number of ballot papers as will 
be sufficient for the purpose of the election and the number necessary 
for each polling place shall be bound or stitched in a book of con- 
venient form, and the County Clerk or County Auditor shall cause 
to be printed in English, in large type, on cards, instructions for 
the guidance of voters in preparing their ballot paper; such clerk 
or auditor shall furnish ten copies of such instructions to the Judges 
of each election precinct, and said Judges shall cause them to be 
posted both inside and outside of the polling place, and said County 
Clerk or County Auditor shall as provided by law, cause to be de- 
livered to the proper judges of election the ballot box and all poll 
books and returns now by law required or by this ordinance re- 
quired to conduct and complete the election, also the ballot papers, 
at least two (2) days before polling the vote; and shall cause to be 
published in each newspaper in the county a true copy of the ballot 
paper and card of instructions, said publication to be in the last 
issue of said papers before the day of voting. 

SEC. 7. Every ballot paper shall contain the names of all 
candidates for Representatives in Congress, State and Judicial 
officers, and members of the Legislature, and the name of the 
political party to which each candidate belongs; also the form of 
ballot for the adoption or rejection of the Constitution and the 
Articles separately submitted therewith as provided in this ordi- 
nance. 

SEC. 8. Each polling place shall be furnished with a suf- 
ficient number of compartments, in which the voter, screened from 
observation, shall mark his ballot paper, and a guard rail so con- 
structed that only persons within such rail can approach within 
ten (10) feet of the ballot box, and it shall be the. duty of the judges 
of election in each polling place to see that a sufficient number of 
such places be provided and shall appoint a person to guard the 
entrance to such compartments and he shall be paid the same as 
the judges of election. 

SEC. 9. The voters being admitted one at a time for each com- 
partment where the poll is held shall declare his name, and when per- 



AUSTRALIAN BATTOT 299 

mitted by the judges to vote his name shall be enterted on the voter's 
list, and he shall receive from one of the judges of election a ballot 
paper on the back of which the initials of one of the judges of elec- 
tion shall be so placed that when the ballot paper is folded they 
can be seen without opening it, and the judges of election shall in- 
struct him how to mark his ballot paper. 

SEC. 10. The voter, on receiving his ballot paper, shall forth- 
with proceed to one of the compartments of the polling station 
and there without undue delay, not exceeding five minutes, mark 
his ballot paper by putting a cross (X) in the space to the right- 
hand side of the name of the person for whom he desires to vote and 
if he desires to vote for any person whose nome is not on his ballot 
paper he may write or paste on his ballot paper the name of the 
person for whom he desires to vote, and shall then fold up his ballot 
paper so that the initials on the back can be seen without opening, 
and hand it to one of the judges, who shall, without opening it 
ascertain that the initials are on it, and that it is the same ballot 
paper given to the voter, and shall the place it in the ballot box 
and the voter shall quit the polling compartment as soon as his 
ballot paper has been put in the ballot box. 

SEC. 11. The judges of election, on the application of any 
voter who is xinable to vote in any manner provided, shall assist 
such voter by marking his ballot paper in the manner desired by 
such voter in thepresenceof the persons permitted to be in the com- 
partment occupied by the judges and no others, and shall place such 
ballot paper in the ballot box, and when the judges of election shall 
not understand the language spoken by the voters claiming to vote, 
they shall swear an interpreter, who shall be the means of commun- 
ication between them and the voter with reference to all matters 
required to enable such voter to vote. 

SEC. 12. A voter who has inadvertently dealt with the ballot 
paper given him in such a manner that it cannot be conveniently 
used, may, on delivering the same to the judges obtain another 
ballot paper in place of that so delivered up. 

SEC. 13. Any voter refusing to take the oath or affirmation 
of qualification as" required by law, when requested so to do, shall 
not receive a ballot paper or be permitted to vote. 

SEC. 14. No person shall be allowed to take his ballot paper 
out of the polling place, nor, except as in case provided for by Section 
Eleven (11), to show it when marked to any person so as to allow 
the name of the candidate for whom he has voted to be known, and 
any voter who violates or refuses to comply with this ordinance 
shall not be permitted to vote. 

SEC. 15. In addition to the judges and elerks of election one 
watcher at each polling precinct for each political party ]>iv><. ntin.u 
a candidate or candidates for the suffrage of the voters and no other 
person shall be permitted in the compartment occupied by the 
judges on election day, and such judges, clerks and \vatehers shall, 



300 SOUTH DAKOTA DEBATES 1889 

before entering upon thier respective duties take and subscribe to 
the following oath or affirmation: 

I, John Jones, do solemnly swear (or affirm) that I will keep 
secret the names of candidates for whom any voter may have marked 
his ballot paper in my presence at this election, so help me God. 

SIGNED: J. J. 

Sworn or affirmed before me at this first day of 

October, 1889. 

Justice of the Peace or Judge of Election. 

SEC. 16. Immediately on the close of the poll the judges 
in the presence of the clerks of election and such of the w r atchers 
and voters as desire to be present, shall open the ballot box and 
proceed to count the number of votes for each candidate ; in doing 
so, they shall reject all ballot papers which have not been supplied 
by them as judges of election, all ballots by which more candidates 
have been voted for than there are officers to be elected ; also those 
upon which there is any writing or mark by which the voter can 
be identified; all the ballots voted and counted, and those rejected, 
those spoiled, and those unused, shall be put into separate envel- 
opes and all these parcels shall be endorsed so as to indicate their 
contents, and be placed in the ballot box and a return of the result 
of the election at the polling precinct shall be made to the County 
Clerk or the County Auditor, as now required by law for the election 
of members of the Territorial Legislature. 

SEC. 17. All expense incurred under these rules to be a charge 
against the county and audited and paid as other claims against 
the county. 

Mr. Hole: I think that that doe* rot provide for things that 
we must provide for. I think if that is added to Section 7 there 
will be no conflict. This was made up with a view of and expecting 
that that would be attached, but if you make that take the place 
of Section 7 it does not provide for what we must provide for, but 
if you make that as an amendment to it then it comes before the 
Convention in a way that it can be discussed intelligently. 

Mr. Peck: I have no choice whether it is added to the end 
of Section 7 or takes the place of Section 7, no particular choice 
as long as it goes through. 

The President: Do you make this as an amendment to be 
added to Section 7 ? Or is it a substitute? 

Mr. Peck: If it be thought desirable to retain Section 7, I 
do not care about informalities and have no objection that it be 
added to Section 7 as an amendment. 

Mr. Scollard: I move it be laid on the table. 

Mr. Jolley: Oh, no! 



AUSTRALIAN BALLOT 301 

Mr. Hole: I have no right on the floor but to consider this 
matter in the Committee Conference. This is a question upon 
which we all can honestly differ and I ask as a favor, and I think 
I express the wish of every one of the Executive Committee that 
that motion might be withdrawn. 

Mr. Scollard: I think, Sir, that this Committee is entitled to 
as much courtesy as any other that has been appointed by the 
President of the Convention and this matter came up before the 
Committee and was voted down unanimously. 

(Voices of No, No No.) 

Mr. Scollard: You will have the floor after I get through, 
if you please. I think, as a matter of right, that this matter ought 
to be laid on the table. It don't belong to this Committee after it 
was voted down. I therefore submit it to the Convention again, 
that this amendment should be tabled. 

The Chairman: It has been moved and seconded to lay the 
amendment on the table. 

(Calls for ayes and noes.) 

The President: Those who are in favor of laying the amend- 
ment upon the table will vote aye ; those opposed vote no. 

The ballot resulted as follows: 

Those voting aye: Messrs. Buechler and Scollard. (2). 

Those voting nay: Messrs. Anderson, Atkinson, Berdahl, 
Boucher, Clough, Coats, Cook, Corson, Couchman, Craig, Davies, 
Dickinson, Diefendorf. Downing, Eddy, Edgerton of Yankton, 
Fellows, Fowles, Gifford, Goddard, Hall, Hartley, Henninger, Hole, 
Houlton, Huntly. Humphrey, Jolley, Kimball, Lee, Lyons, Mafson, 
McFarland, O'Brien, Peck, Ramsey, Ringsrud, Sherwood, Smith 
Spooner, Stoddard, Sterling, Stroupe, Thompson, Van Buskirk, 
Van Eps, Van Tassel, Wescott, Wheeler, Whitlock, Willis, Williams. 
Williamson, Wood of Spink, Young, Zitka and Mr. President. (57). 

The President announced the result of the ballot, two voting 
aye, and fifty-seven voting nay. 

Mr. Peck: I move that Section 7 of the report of the Com- 
mittee on Schedule < nd Ordinance be amended by adding the fol- 
lowing thereto, that the amendment last read by the Clerk be added 
as a paragraph to Sec. No. 7. 

Mr. Hole: I do not wish to discuss this question more than 
just to say that it was decidedly the understanding and expectation 
in the Committee that this should come before this Convention. 
I think it is fair that this should be considered as an original ques- 



302 SOUTH DAKOTA DEBATES 1889 

tion here without being prejudiced in any manner by any action 
that the Committee may have taken. 

Mr. Van Buskirk: I don't know at this present time the ef- 
fect of adding this as a section. I would like to call attention at 
this time so that it would not control some future additions that I 
would make to it. 

Mr. Hole: Would you allow me one suggestion? Why not 
just number this Section 7 a sub-section? 

Mr. Van Buskirk: I will call the attention of the Convention 
to a few suggestions which have been overlooked. For instance, 
Sec. 2. Nominating State officers, Representatives in Congress, 
and Judges of the Supreme Court shall be made by any State Con- 
vention and certified to by the Chairman and Secretary of such 
Convention. After this w T ord Convention"" I would insert the 
word "substantially ' so that it would not stand to be a tech- 
nicality, and every member of the Committee that I have had an 
opportunity to confer with they conceded that it would be proper. 
We read a little further "Or by any three hundred legal voters in 
South Dakota attaching their names to a paper' . Now, there 
might be three or four of them circulated with the same proposition. 
I would say "paper or papers" ; it seems that that ought to go in. 
Then passing from that down to Section 3 , nominations for members 
of the State Legislature, Judges and Clerks of the Circuit Court. 
I would suggest to strike that out. 

Mr. Peck: Yes, Sir. Exactly. 

Mr. Van Buskirk: We look a little further down I would 
insert the word "substantially" and following, in the third line from 
the bottom, where they say "paper" I would say "papers." In 
view of the fact that the election comes on the first day of October, 
the inquiry arises in my mind whether that would be time enough 
for the Secretary of the Territory to get those returns that would 
come to him to be sent back, counted. 

Mr. Peck: I simply put it there that we might note it; they 
can fix it as they see fit. 

Mr. Van Buskirk: Passing that I would desire to suggest 
in view of the legislation that will take place in other localities upon 
that subject, I don't know whether that would be a subject for this 
Convention to investigate, the Judges and Clerks of Courts shall be 
chosen from the district political parties, they are of course pro- 
vided for 



AUSTRALIAN BALLOT 303 



Mr. Peck: Allow me to make one little suggestion. What 
I think the point that this measure desired was simply this, 

(Calls from different parts of the house of "louder". 

Mr. Peck: What we desire to get a vote upon the principal 
and consider section by section until after we take the vote upon 
the principal. I think the wish of the friends of it is to secure the 
b est system of voting that we can possibly get. 

The President: Your amendment as made if carried would 
accept the whole measure. 

Mr. Peck: It becomes a part of the report and then will be 
subject to revision just as the other sections of the report are, 
subject to revision afterwards, to strike it out or modify it. 

Mr. Hole: As I take it, under the Constitution, the adoption 
of this would make it permanent and would make this law and part 
of the Schedule absolutely. We have already adopted or made 
law, as far as in this Convention lies the power, all the sections 
down to and including Sec. 6. We now have before us Section 7. 
It is moved as an amendment to Sec. 7 ; that amendment is carried ; 
then on motion adopting the section it would then be just as much a 
part of the Schedule as any other section of it. It looks to me if 
we urge this question only to get an idea of the feeling of the Con- 
vention. If this is only to feel of the temper of the Convention 
upon this subject that the matter might be brought forward by 
resolution. But in this we are making law,' w r e are making law 
when we vote upon this and we cannot afford to vote blindly. 
While I may be in favor of some things, I may not be in favor of 
others. 

Mr. Dickinson: I do not agree with Mr. Hole, and I do not 
understand it as he does. I understand that this is an amendment 
to Sec. 7 in passing upon an amendment that it becomes a part of 
Sec. 7. We do not thereby adopt Section 7, we can re-commit or 
assign to a special committee or re-commit it to the Schedule Com- 
mittee or take it in Committee of the Whole. I would not vote for 
it unless it were to pass under careful review and inspection, being 
careful to make it harmonize with other portions of the Schedule. 

Mr. Jolley: What is the question before the Convention? 

The President: The adoption of the amendment to Section 
7, presented by Mr. Peck. 

Mr. Jolley: Then it is to take the place of Section 7. Mr. 
President, at last, after two weeks of wrangling on this section, we 



304 SOUTH DAKOTA DEBATES 1889 

see ourselves at the threshold of having passed the finest Schedule 
that ever was passed by a constitutional convention, or we are to 
the threshold of having it mangled so that its parents won't know 
it. I had supposed, Sir, that from the time that this Convention 
had been in session up to the present time, judging from the acts 
of th's Convention and from the manner business has been con- 
ducted that we could get on through as we had begun, careful, pru- 
dent men, trying to keep ourselves in the boundary, in the formation 
of our Constitution, within the powers granted to us by the Omnibus 
Bill. The Schedule as reported by the Committee this morning gov- 
erened everything that is necessary, comes right up the line allowed 
us by the Omnibus Bill. But when that line is passed the danger 
comes. It may be a gratification to the personal interests of some 
delegates upon the floor of this Convention to be recognized by 
pressing such an amendment as this, without judging of the result 
and effect that it will have upon the State of South Dakota. It 
may be that some delegate here feels determined to abandon that 
straight course that has been our line of conduct up to the present 
time and that they will put this Constitution with a Schedule 
with an amendment upon it in a position where it will be in very 
great danger of being wrecked. Among all the positions it 
has been my portion to be connected with in this world, I never was 
connecetd with a position, and never had a duty to perform that 
was so difficult, so trying and in which more care had to be ex- 
ercised than drawing a Constitution passed by the people to be 
amended under this Enabling Act, and it may be out of this thought 
that we will cease to be a Territory in a short time, and the joy that 
South Dakota will soon be admitted into statehood and that the 
star of South Dakota will soon be placed upon the national colors, 
has effected our good judgment. This I believe, could be carefully 
looked into, for, Sir, if there is any doubt in the mind of a single 
delegate in this Convention I cannot conceive the reason or theory 
that he has; I cannot conceive of the line of logic that he pursues. 
I cannot see what construction he gives the words if there is any 
question of that kind in the minds of any delegate here as to whether 
we have the power to make this amendment or not. We have a full, 
free, open and clear course to pursue, but we must be careful that 
we do not deviate from that course. Why Sir, this bill here is a 
general law, relating to the whole election as provided for in the 
Schedule relating to State officers. It relates also to the votes for 



JOLLEY ON KXAHLING ACT 305 

and against the rejection of the Constitution that we will put before 
the people and for the amendment thereto. No, Sir, I undertake to 
say without fear of successful contradiction, that there is no power 
given us any place in this Omnibus Bill ; there is not a word, syllable, 
section, chapter or article from beginning to end which gives us any 
right to tamper or interfere in any manner with the election laws as 
laid down in the Territory of Dakota in any respect except upon the 
question of the adoption and rejection of the Constitution we will 
put before the people The Omnibus Bill says: "And all persons 
resident in the said proposed State who are qualified vo ers of said 
Territories as herein provided, shall be entitled to vote upon the 
election of delegates, and under such rules and regulations as said 
Conventions may prescribe, not in conflict with this act, upon the 
ratification or rejection of the Constitution." Now, Sir, I say under 
that language that that is all the language of this Onv ibus Bill that 
relates to what we shall provide as rules and regulations for th ) 
election of State officers, not the election of the several persons 
that is attached. But the rule is strict ; the law must be enforced 
exactly as it is ; only that and nothing more. You can provide 
no rule and regulation that refers to the election of State officers; 
may provide rules and regulations for the elect on upon the ques- 
tion of the rejection or ratification of the Constitution, but you 
cannot go a single ell further; you are barred and can proceed no 
further. Why, Sir, this is a very serious question; it may result 
in this Convention of raising the question of its powers, it is 
frequent in courts that we raise the question of its juris- 
diction. When we come before the people with our work ; when 
the excitement of the present time is passed and gone; when we s t 
down in our homes and consider and look over thus question as the 
people whom we represent are now looking at it ; when we come to 
such things as it is we- will reali/.e that we have gone beyond the 
powers granted to us. Then will conic the rcru tion and regret. Why, 
Sir, we cannot arrogate to ourselves any powers except what is 
given in the Omnibus Bill and it says what shall be done. 1 read 
from Section S to show that the President himself, has the rijjit 
if we do not comply with the provisions of the Omnibus Bill, no 
matter how large a ballot has been cast in hisConsI union, 

no matter how good or bad the 1 officers may be that arc elected, if 
we deviate from tin- prescribed rule that is given us by a* t 
gress, then the President has the right to consider whether we v.i'1 



306 SOUTH DAKOTA DEBATES, 1889 

be admitted under that Constitution as adopted, then or not. I 
read from Section 8: "And if the Constitutions and governments 
of said proposed States are republican in form, and if all he pro- 
visions of this act have been complied with in the formation thereof, 
it shall be the duty of the President of the United States to issue his 
proclamation on announcing the result of the election in each, and 
thereupon the proposed States which have adopted Constitutions 
and formed State governments as herein provided shall de deemed 
admitted by Congress into the Union under and by virtue of this 
act on an equal footing with the original States from and after the 
date of said proclamation." We are not only to have a republican 
State in form but all the provisions of this Omnibus Bill have to be 
complied with. So much for our power. Mr. President, this act, 
as we all know, was approved by the President of the United States 
on the 22nd of February, 1889. It is said that all persons resident 
in these proposed States "who are qualified voters as herein provided 
shall be entitled to vote. Now, Sir, if there is any deviation of a 
single jot or title of the law, complications made to enter into it 
or any embarassing cause by which a single voter thereby is 
deprived of his vote for or against this Constitution, then you have 
gone further than you are empowered to do and you cannot pass 
that Constitution because you have so deprived a voter of his 
privilege. The President will say, if he assumes the right, that we 
have not complied with the plain instructions, that the provisions 
of the Enabling Act have been ignored. Sec. 14 of the proposed 
amendment reads as follows: "No person shall be allowed to take 
his ballot paper out of the polling place, nor, except as in the case 
provided for by Sec. Eleven (11), to show it when marked to any 
person so as to allow the name of the candidate f6r whom he has 
voted to be known, and any voter who violates or refuses to com- 
ply with this ordinance shall not be permitted to vote." Here you 
go to work into a lot by the Omnibus Bill in so many words to vote 
for the ratification or rejection of the Constitution; here you pass 
a rule that a man shall not be allowed to vote for State officers and 
the Constitution, or its ratification or rejection and if he does not 
comply with the rules that he is to have his vote rejected and is thus 
disfranchised. Whoever heard of any such thing as that? We have 
no power given us for this ; we are formed for one express purpose ; 
we are here to amend the Constitution in compliance with the pre- 
scribed limitations of the Omnibus Bill, to make such amendments 



JOLLEY'S VIEWS ox ENABLING ACT 307 

as the Enabling Act allow; nothing more or less. And if there is 
any part of that Omnibus Bill, a single line or sentence by which 
any Legislative power is granted to the people of this Territory, I 
I would like to have it pointed out. Have you the right to pass 
this amendment? Why, Sir, a bill before our Legislature has to 
be read three times before each house and must be passed by each 
house and then go before the Executive of the Territory, who has 
the right to veto it. How do we stand here in this Constitutional 
Convention; does the mere act of our voting this make it a law 5 
Have we any power that makes this law ? We go to work and pass 
this Constitution voting for it, signing it, and enrolling it and for- 
warding it to the place and custodianship of the officer pro ided by 
law. Does that make a Constitution? No Sir, that never makes 
a Constitution. You not only have to do that but you have to go 
before the people first and they by majority vote have to ratify 
what you do here. Let us not forget that this Constitution is an 
inanimate thing until vivified by an endorsement by popular vote. 
You are bringing forth a creature in which the breath of life cannot 
be instilled until our acts are done, and you on this floor arrogate to 
yourselves to tell a man if he does not comply with that section he 
must be disfranchised and his vote cannot be counted. Not only 
must the people of this Territory breath life into this Constitution ; 
it goes further than that, and a majority vote only creates life. 
If the President of the United States hears you have not complied 
in every respect with the Omnibus Bill and he puts a veto upon it, 
then life is squelched out of it. Until Congress admits us into the 
relations of the United States then here is this body without any 
power to create any interest in or give any force to this Constitution 
which you adopt. It is forward to assume that power that says, 
this man unless he complies with this law contemplated in this 
amendment he shall be disfranchised ; shall not be allowed to vote, 
in clear violation of the written law of the Territory of Dakota. 

SEC. 16. Immediately on the close of the poll the judges in 
the presence of the clerks of election and such of the watchers and 
voters as desire to be present, shall open the ballot box and proceed 
to count the number of votes for each candidate. In doing so they 
shall reject all ballot papers which have not been supplied by them 
as judges of said election, all ballots by which more candidates have 
been voted for than there are officers to be elected ; also those upon 
which there is any writing or mark by which the voter can-be iden- 



308 SOUTH DAKOTA DEBATES, 1889 

tified. All ballots voted and counted and those rejected, those 
spoiled and those unused, shall be put into separate envelopes 
and all these parcels shall be endorsed so as to indicate their con- 
tents, and be placed in the ballot box and a return of the result of 
the election at the polling precinct shall be made to the County 
Clerk or County Auditor, as now required by law for the election 
of members of the Territorial Legislature There is a provision, 
Sir, that clearly violates the laws of the Territory. We come 1 ere 
to -adopt a Constitution and arrogate to ourselves the right to 
change fundamental law of the land and say that the votes cannot 
be counted. Sir, you are stepping upon the brink of an abyss in 
attempting any such power as that. You disfranchise the people 
of this Territory and who wants to take that responsibility? I do 
not want .that in mine ; to disfranchise them or dictate the manner 
in which they shall vote. It is attempting what is in clear violation 
of the law. That is base libel upon the reputation of your people 
to assume that you have been elected for that purpose or to assume 
to yourself the right to put into the Schedule something that dis- 
franchises any voter of the Territory of Dakota. Why, Sir, it is not 
two months from now until the election comes. You will start a 
revolution that has not been equaled. If at the time of the election 
you tell the people they must do these things or be 'disfranchised. 
Let us tell the Czar of Russia to come here and by his edict say that 
the people shall not vote till they vote as he tells them to. There is 
no punishment that can be inflicted for violation of the law, I do 
not care on what ground or section you put it, no court under 
Heaven that would hold an indictment found under that valid for 
a single instance. Here you disfranchise a man, for what? For 
something that is trifling, because he goes to work and he shows 
his vote, shows how he scratched his ballot; let a man see how he 
votes; for that act, that may be done as innocently as any act can 
be done by the purest person in the world, and for that act you take 
away his manhood ; for that you rob him of his personal rights of 
American citizenship ; for that act you put him in a position where 
he has no right to say how he shall be governed. Why, Sir, this 
question is an appalling one ; this question is one that I approach 
with a great deal of dread. I t'o not suppose, Sir, that anything 
that I can say will change the result in this Convention. We have 
heard upon the streets, no word can stop this act; no reason 
can stay this crime and if that is the result I do not care 



JOLLEY'S VIEWS ON ENABLING ACT 309 

how this has been brought about ; I do not care who is the per- 
petrator of this act, I want it, when this act is done, when this act 
is passed upon by the people and we have adjourned to our homes 
and neighbors and are confronted with our work in this Convention, 
that when they say anything to me or about me they cannot say 
I did it. Then, Sir, here is the question we are called to vote upon 
now ; we are to pass an act which we cannot by any penalty under 
Heaven enforce. You arrogate to yourselves the right to disfran- 
chise American citizens, something un-American and unknown. 
You are to convict a man of crime, unheard by a jury and without 
being tried by a jury of his peers. You say that these judges of 
election, two or three of them, have the power to say to this man 
if he does such a thing, without trial by anybody, no evidence be ng 
given in his defence, no jury, no court; try him and let these judges 
with their power pass judgment upon him. Three men responsible ; 
no one to guide where any little informality by a single voter \\ill 
disfranchise him. This is the ninteenth century and this is a Con- 
stitutional Convention framing a Constitution for the people who 
have lived in this Territory for nearly a quarter of a century. If 
there has been a crime committed, ballot-box stuffing, if there has 
been fraud in elections and if there will be at the coming election 
you will by the passage of this act do something that you know the 
like of which never before occurerd in all Christendom. Three^ 
judges of election sitting there clothed with such power that au- 
thorizes them for a trifling irregularity, to disfranchise American 
citizens. The thought is appalling and he who gives them the 
right to do it is a party to the crime. 

Mr. Peck: I tried to correct my amendment before Mr. Jol ey 
got to going. I will read my amendment as I supposed my remarks 
would have conveyed:. "That Section 7 of the report of the Com- 
mittee on Schedule be amended by adding the following thereto, 
this to be considered paragraph by paragraph with the other portion 
of said section. This will be considered in connection with it." 

Mr. Williams: I dislike very much to prolong the session, but I 
feel compelled as my friend Jolley says "to say something"; I feel 
that I have something that if I do not say it I will not be satisfied. 
I believe it is my duty, representing the people, to speak upon these 
questions when I have anything to say. I have endeavored since I 
have been in this Convention, as well as my friend Mr. Jolley, and 
it has been an honest endeavor, that I shall speak little. My en- 



310 SOUTH DAKOTA DEBATES, 1889 

deavor has been and my determination, to be a working member 
rather than a talking member. Being so determined I, impart that 
determination for what it is worth, to others, to guide us straight to 
our work of this Convention according to the powers which we have. 
And in order. to arrive at the power which this Convention has we 
have to look to the Enabling Act and inasmuch as there are a great 
many of us we have looked at it from a great many different stand- 
points. 

While I believe we are bound by every provision of th's organic 
act and that we have no authority to overrule one of its provisions, 
I believe on the other hand that this body is not here solely with 
delegated powers. I believe that we are in existance and that being 
in existence, there are particular subjects that must come before 
this body ; particular subjects to be considered and which this body 
was brought into existence to consider; that we can go beyond the 
rule laid down in the organic act known as the Omnibus Bill. I 
believe further, aside from that step this body meets here with all 
the powers that any constitutional body goes about its business. 
I do not claim that we meet with unlimited or untrammelled powers, 
but we meet with certain powers conferred upon us, and within the 
scope of these delegated powers we are bound hand and foot. But be- 
yond that is a field and that in that field we are at liberty to work for 
the best interests of the people who sent us here, so as not to trample 
the restrictions imposed upon us by the Omnibus Bill. By the Con- 
stitution that was adopted on the 14th of May, I cannot understand 
my friend Jolley's speech nor this Ordinance, except we look at it 
this way; that a certain committee authorized by that Conevntion, 
sitting in that authorized Convention have powers that it does not 
in this Convention. We find a provision submitted to this 
Convention to become a part of the ordinance of this Convention 
from a Committee of which the gentleman is one of the leading 
members and if it passes it proposes to do just exactly as the gentle- 
man says it is not in the power of this Convention to do, and that is 
to put vitality in this Constitution. I read the provision: "The 
election provided for herein shall be under the provisions of the 
Constitution herewith submitted." That is the provision that the 
Committee, of which he is one of the members, brings before this 
Convention. That is, that this Convention shall vote certain 
propositions putting vitality into the Constitution and making it 
a law of the land. With my limited knowledge of Constitutional 



W. T. WILLIAMS SPEAKS 311 

law, I assert that there is no power under the sun to give it vitality 
except the vote of the people when it is ratified. Then that Com- 
mittee has arrogated to itself power that it has not got. 

Mr. Van Buskirk: Where is that provision that you read? 

Mr. Williams: You will find it in Section 7, report of the 
Schedule Committee. 

Mr. Williams: Now, Mr. President, I wish to say this with 
reference to the question before the Convention, that is that these 
rules proposed here in this amendment are not for the purpose of 
establishing the quafifications or electors. There is a difference, a 
material difference between rules governing the deposit of a ballot 
by qualified electors by making a law prescr bing the mode of de- 
positing the ballot. 

The amendment offered in Sec. 7 does not attemp'. in any par- 
ticular to say what the qualifications of the electors are, but 
excepting the qualifications laid down by the statutes of the 
Territory of Dakota; it only proposes to say that the elector, 
with all that magnificent and grand power directed to him by the 
general government, 'which he undoubtedly possesses, shall deposit 
that ballot. That he shall exercise that right to vote, in a certain 
way, not in any manner prescribing or limiting the qualifications or 
rights as a voter; and if an honest voter it cuts no figure. The 
amendment is interposed for the purpose of preventing a dishonest 
voter from taking, or stealing I may say, the result of an honest 
ballot cast. Now, Sir, I would ask this, is the dishonest voter or 
his rights more sacred than the honest voter? The just voter and 
the unjust receive alike and are equally protected and guar nteed 
at this station in the enjoyment of the highest law in the land, that 
of the right of voting. This amendment docs not detract or take 
from him one qualification nor add to one qualification. It says 
in order that your vote as cast may be cast honestly, and that you 
shall n*ot be dictated to or interfered with directly or indirectly when 
casting an honest vote, only would require that you comply with 
this reasonable request. That is all that it is; it is not law. This 
ordinance the gentleman, by < ertain reports made, attempt to make 
and establish a law of the land upon certain questions that perhaps 
are not of as much interest, yet he denies the right of this Conven- 
tion to prescribe a rule governing the rule by which lie exercises 
the right, it does not attempt to bridge, only attempts to establish 
a rule of action in no sense assailing the fundamental right of in- 



312 SOUTH DAKOTA DEBATES, 1889 

dividuals But it only prescribes a rule that shall be enforced just 
for the time being and it is in fact, most salutary in its effects. 
That is, if a voter is honestly intending to cast his vote and cast it 
in an honest way, this rule will not infringe upon him in any such 
act. But if the is intending to cast a dishonest vote, then probably 
in this rule, should it be adopted, he will find little comfort. I do 
not believe this Convention has any power to say that this question 
shall only be taken up by the Legislative power under this Con- 
stitution. 

Mr. Sherwood: Is there any authority for the adopting of 
this Australian system except what is contained in these rules and 
in the Omnibus Bill? In the last clause of Section 3? 

Mr. Williams: Without attempting to give a definite answer 
I will say this ; whether we get this Australian system or not, I take 
it the Australian system in its entirety prescribes the qualifications 
of electors. This does not. We have here prescribed the rules 
and regulations for voting upon the adoption of the amendment to 
the Constitution denying that this Convention can by rule or 
regulation prescribe the mode of depositing the ballot for State 
officers. I understood that to be the position of the gentleman 
from Clay County. 

Mr. Corson: I would ask if any county refuses to adopt this 
rule, what then ? I am of the opinion that they cannot be compelled 
to it 

Mr. Zitka: If I should come to the Ballot box after I prepared 
myself at the next election according to the Territorial laws in 
present existence and offered my vote, not having inquired about 
the laws or the manner in which the judges prescribed it shall be 
received, not conforming in every minor particular with the law 
as proposed in this amendment would the vote be legal or not ; would 
the judges have to reject my vote and thus disfranchise me? Now 
have we the right to legislate and disfranchise the people, in this 
Convention? We are assuming a right we have no right to. 

Mr. Williams: I think the judges would be right to reject your 
vote. What I intended to say was this ; it being admitted Congress 
<says in this organic act that at the same election we may provide 
for the election of certain officers, I would ask this question: Where 
is the authority for saying, except by violent presumption, that it 
was the intention of Congress, after once having granted the 
authority and prescribed the rule for one thing that we must provide 



AUSTRALIAN- BALLOT 313, 



a different set of blanks for judges and clerks, and have an election 
conducted under different rules and regulations? I say where is 
the authority for that except by violent presumption, except in a 
strange interpretation of the Enabling Act? This is a presumption 
without a letter or word in this organic act, if we have the power 
to prescribe the rules for one and not the other election. They 
cannot be authorized by the Enabling Act at the same time. It 
must be the same electors, the same judges of election and clerk and 
the same ballot. As the Committee, of which the gentleman is a 
member have reported this bill, they have adopted that as their in- 
terpretation of the Enabling Act. Then the rules and regulations 
by the interpretation of this Committee shall, be the same in each 
instance. Then the only way out of it is to say that because this 
is not granted to us by express words in one instance that we cannot 
exercise the powers granted us in another. 

Mr. Cooper: Suppose a duly qualified elector should duly 
tender a legal ballot to the judges of election and they refuse to take 
it, under what law would he procure redress of the judges? I have 
not stopped to examine that and I do not care to now, but it is a 
question that I will take up and examine in time. 

Mr. Van Buskirk: I am, myself in sympathy with the spirit 
proposed in this amendment, that is if we have the power to do it 
and if I vote against it I shall vote against it seriously and with 
the conviction that we have not the power to pass this amendment, 
and I shaH regret that we have not. I have listened to arguments 
so far. I am sorry to say that my first impressions were not correct ; 
from all I can see, and the best light upon this subject that I possess 
at this mo'ment, I am forced to take a position upon this floor against 
this amendment. I do not know but that some member of the 
Committee who had this amendment under consideration, may have 
had their .attention called to some other provisions than what I 
have; but I am at present constrained to think as Mr. Jolley has 
said, that all that we can find in this Omnibus Bill that will permit 
us to adopt this amendment will be contained, perhaps, in those 
words: "And all persons resident in said proposed states who are 
qualified voters of said Territories as herein provided, shall be en- 
titled to vote upon the election of delegates and under such rules 
and regulations as such Convention may prescribe, not in conflict 
with this act." 

I am sorry to say that it appears to me from that that if that 



314 SOUTH DAKOTA DEBATES, 1889 

was the intention of Congress that we should prescribe that form 
of ballot only upon the Constitution. Turning from the last section 
referred to to Section 24: "That the Constitutional Conventions, 
may, by ordinance, provide for the election of officers for a full 
State government". I am very much at loss to understand how 
we can pass this amendment, adopt it, and make it of any obligator)' 
force whatever. Unless I can get more light I am constrained to 
believe that if we pass that amendment and I should walk down 
to the polls and if I should present a ballot just as I would if we 
do not pass this, and if the judges acting in the spirit of this amend- 
ment, should reject my ballot I am very much in doubt w r hether I 
would have any action against them for refusing to receive my vote 
I am heartily in the spirit of this. If I could throw 7 some further 
restrictions around the method of casting our ballot, I should do it; 
I would be glad if any member of this Convention can find any 
clause that can give us that power. 

Mr. McFarland: What is the meaning of the expression 
"Provide for the election of officers"? 

Mr. Van Buskirk: As I said, unless there is something more 
than is contained in this I shall be compelled regretfully to vote 
againts this, because I am in sympathy with the proposition and 
phases of it. It don't say we must, but we may provide for the 
election; it says we may elect these State officers. I do not think 
with a reasonable interpretation of the act, we can do other than 
go to work as prescribed I cannot find here authority to adopt 
a different manner in which to deposit our ballot than we now have 
on our statute books and as I say, if any member can inform me 
so I can consistency vote for the measure, and throw some further 
restrictions around the ballot, I shall be glad to do so. It is pos- 
sible some member may have had his attention called to some pro- 
vision other than what has been alluded to and it may help me out of 
out difficulty. 

Mr. Hur.tley: If we have no power to enforce the provision 
of the ordinance, leave that out, and suppose we adopt the rest of 
this ordinance which is here recommended, if we have no power 
to enforce this ordinance, the ordinance we are adopting. 

Mr. Van Buskirk: The ordinance we adopt does not prescribe 
any qualifications of the voters; does not prescribe any manner in 
which he shall receive it. The laws of the Territory steps in and 
supplies all those matters. 



"OLD FATHER LEE" 315 



Mr. Lee: I do not wish to discuss this question now; I. wish 
to call my friend's attention to the clause he read, Section 3 the 
last part of Section 3. Now, Sir, a few days ago, an unwary clerk 
at Washington misplaced the semi-colan and added the conjunction 
and, and it cost $200.000 to fix that up when it was d scovered and 
years of hard work The matter should have read in the document 
that "Fruit-trees should be received without paying any duties, 
and he said "fruit and trees" and put the semi-colan after the third 
word, and some ingenious Yankee found out he could introduce his 
fruit as well as trees, and 'went before the court and the court sus- 
tained him. Now gentlemen, I am lawyer enough to see this; you 
take the third clause and read it down until you come to the next 
to the last conjunction, this is a matter of common sense and common 
sense is generally pretty good law. "The number of delegates to 
said Conventions respectively shall be seventy-five". Why haven't 
we a grain, haven't we more than a grain of common sense except 
old Father Lee" and all persons resident of said proposed states who 
are qualified voters of said Territories as herein provided shall be 
entitled to vote upon the election". Of what? "Delegates", and 
now the rest of these four lines don't mean anything for it is dif- 
ferent states and made for a different time. We are not in Con- 
vention and we cannot do anything as a Convention until we are 
met here as a Convention (?). Beyond question seventy-five men 
were really elected; now can seventy-five men say we are elected 
and get together and make laws and do anything but lay the 
foundation, lay the track upon which to sail this grand old State 
into the Union? 

Beyond question when you cancel this conjunction and, you 
cannot do anything further. The rest of the four lines belongs 
down upon Section 24, and merely stuck on there. Sometimes a 
little piece of lead will stick to a bullet when we run it which we 
cut off to make the ball go straight. I am not ready to make 
my little speech. 

Mr Davics: I must say that the arguments have been so 
scattered that I do not know much more about it than when I came 
here this afternoon. The eyes of Dakota are upon this Convention 
and whether we have the power or not it seems to be generally 
understood that we have, and we are going to l>e held responsible. 
As I understand it the election that is going to take- plan' next. 
October, the Constitution of the Territory of Dakota, the Con- 



316 SOUTH DAKOTA DEBATES, 1889 

stitution which we are allowed to adopt has been anticipated and 
the framers of that Constitution designed that such an election 
w<ould h ve to take place, as the election that is to take place next 
October. The question is. whether we govern, or are we to be 
goverened in the mere manner of conducting that election by the 
laws of the Territory or are w r e to be goverened by the act which 
created that election, by the Enabling Act of Congress, in other 
w-ords, does the Enabling Act say to us, "Go on with that election 
and have it according to the laws of your Territory" or does it go 
on and say "You will have your election and by ordinance elect 
your officers", etc. 

Now if we can say whether the Enabling Act intended us to 
take that course, or say how it shall be conducted, I am not prepared 
to say which of these two we are to follow. It seems to me some of 
the members of this Committee that have given particular attention 
to this matter can confine their argnments to this one point. It 
seems to me we had better spend another day on this than murder 
the principle involved in this amendment. I should very much 
dislike to vote against the principle of protecting the ballot box. 
We know this is one of the greatest failures in American politics 
the question of the preservation of the sanctity of the ballot box. 
It is one of the most vital questions confronting the American 
statesman today. I do not see my way at present to do it. Then 
too, there is a great question in my mind whether this law r , if passed 
can be enforced practically if it is put in operation at our next 
October election. I want to vote for this but do not see my way 
clearly to that determination at present. 

Mr. Zitka: I believe that this Convention has no power to 
legislate ; has no power to change the general laws as they now stand 
upon our statute books. That we have no power whatever, or au- 
thority, not clothed with that authority to change the general elec- 
tion laws as they are now. If you adopt this amendment as it is here 
presented you certainly do that. My ballot may be rejected indeed, 
according to this amendment, should be rejected.. Are we not 
legislating here ; are we arrogating to ourselves to rule, a right which 
was never granted to us ? Certainly you are ; Congress never meant 
that this should be done. Makers of the Constitution of 1885 never 
dreamed that this Convention, if it ever existed, would go to work 
to change the general election laws for the purpose of adoption of 
the Constitution. If there is any power anywhere it is in the Legis- 



THOS. STER-LINO TALKS 317 

lature. I do not think that Mr. Williams studied this question very 
dec-ply. I think that for this reason. Yesterday he stated to me 
that this proposition in his mind was ill-timed; he didn't think it 
was good, and today he is supporting it. Considering the short 
length of time in which he changed his mind, I think he did not 
consider this as he should have done. Therefore, I state th's that 
when you disfranchise the people of their rights to vote you dis- 
franchise them of the dearest rights that a man has got. If I am 
a voter under Jhe present Territorial laws, I am certainly a voter 
when I come to the ballot box to vote on the Constitution. You 
change your mode of voting, debar me and deprive me of the right 
to vote unless I confoim to certain restrictions which never have 
been heard of before; that I must have certain initials upon the back 
of the ballot. Is not that, Sir, a practice which should be regulated 
to foreign countries ruled by kings and emperors. Is this, a free 
country, of the ninteenth century? Is this the United States of 
America, of which every citizen is proud of his citizenship? I be- 
lieve this Australian system was made for. Australia and not for 
this free United States. 

.Mr. Sterling: Gentlemen of the Convention; I think I fully 
appreciate the discus: ion of this question. I have reached my 
present conclusion after not a little thought and had we a little 
more opportunity to examine into the question of the rules and 
regulations pertaining to elections we would have found something 
startling upon the question discussed here today. I had intended 
examining the subject at length on that line. I have not had time 
to do so. What, gentlemen, does this amendment prescribe? Any- 
thing more- than a few rules and regulations governing the i ondiu t 
of the election at any particular polling place. I have heard the. 
discussion. A few practical things have suggested themsel 
my mind, that might happen in any polling place without any 
statutory provision upon the subject at all. 

Suppose there is a notiie of eleition to be- held in a certain 

polling place in a certain ward or precinct, and suppose the manu- 

that election, the judges Of clerks of election shall, on the 

morning of the' election before they go to the polls and before any- 

i he-re at all, mutually coin-hide-, for the sake- of c Mivenienc e. 

although this is the- p!ai e- dingnate-d by law as th<- place 1 for holding 

.tion, nevertheless on account of MHIK- e ontingciicy that they 

had not t h on ght of,. for convenient c or otherwi; e, remove- it t' 



318 SOUTH DAKOTA DEBATES, 1889 

other place reasonably convenient to all ; that they made that 
change before the polls were open, do you believe that the voters 
of that precinct have got reasonable access to the polls at the place- 
to which they were removed, that they could come in and say they 
were disfranchised because of that ? I think not. Suppose in the 
absence of any statutory provision, the judges of the election had 
decided that they would not allow the election to be held in that 
place that the regulations recorded, that the public order re- 
corded; further that they would not allow but one man in the poll- 
ing place at a time, except the judges and clerks,' do. you believe 
that they would have the right to do it? I do. Does this amend- 
ment disqualify or effect the qualifications of the voter in any 
degree? No, it does not; it is simply saying that here on account 
of a particular element that we have to contend with at this place, 
on account of the great number of voters and the question at issue, 
it is better that we for this election prescribe these rules and regu- 
lations and deem it wise to designate the manner that the voter 
shall cast his ballot at the time. Then someone says: "I have the 
right to go in with this voter and vote." And the judges have said 
"No, the public order and public decency requires that but_one 
come at a time to cast his ballot, and the party persists in demand- 
ing the privilege until the police power takes hold of him and says 
to him "You cannot go in". What is the result? He comes and 
says "I am disfranchised". Disfranchisement, indeed! Has he 
been prevented from casting an honest ballot ? Far from it. I say 
he has not ; I say that just rules as that the judges of election have 
the power to prescribe or if not the judges of election, then the 
county officers who have the management of the election within 
the county or precinct. It is a reasonable rule and regulation for 
that particular election. What is this ? I believe that for the most 
part it is rules prescribing how many voters shall be in the apart- 
ment in which the votes are cast at a time. Nothing more than that . 
Nothing more than reasonable rule and regulation, and that in view 
of the several questions involved, the officers to be elected, the ques- 
tion of prohibition, the question of minority representation, the 
question of capital location, these make^this a reasonable regulation 
to be made at the present time and under the circumstances under 
which this election will be held. There can be no question about it. 
Does it decrease the qualification of the voter in any sense? No, 
not at all. It does not prescribe the qualifications of a voter, simply 



AUSTRALIAN BALLOT 319 



embodies the rules under which the election shall be conducted 
without infringing at all upon the voters qualification. They are 
the same as the laws of the Territory prescribe. 

Mr. Sherwood: If a county or towYi refuse to furnish the 
places for voters would they be compelled to provide them? 

Mr. Sterling: They might. 

Mr. Sherwood: Then would that vote be received? 

Mr. Sterling: I am inclined to think that they would be re- 
ceived so far as that is concerned. Now as to whether such a 
ballot will be received or not, whether this is complied with, I say 
gentleman, that that does not do away with the desirability of 
rules and regulations like these. 

Suppose we do not conform with the rules and regulations in 
certain polls that the vote is received without, I say that these places 
will be comparatively few. The intent will .be for the most part 
to follow the rules and regulations prescribed in this amendment 
and that the result will be that we will have an honest and pure 
election on account of these rules and regulations. 

Mr. Van Buskirk: Let me ask a question; the difficulty that 
occurs to my mind is this: In place of a simple regulation a man 
cannot be permitted to vote any ballot except those tendered by 
the judges of election, with certain initia's upon it. Is not that 
legislation? 

Mr. Sterling: I do not believe that is legislation in conflict 
with any legislation in connection with the subject. The tendency 
is not towards disfranchisement of men. He has a ticket with all 
the names of the men nominated, printed under the rules and regu- 
lations. It is his privilege to change that ticket as he desires. 

Mr. Van Buskirk: Under the existing laws and .rules and 
regulations on the subject as in force now if we add these rules 
and regulations, isn't it legislation? is the difficulty that arises 
in my mind. 

Mr. Sterling: I do not believe that it is. 

Mr. Cooper: I desire to suggest this, gentlemen of this Con- 
vention, if this amendment can have any force at all it must go to 
the extent of repealing the election law of this Territory. If not 
the gentlemen who favor the project ask every gentlemen who is 
judge of election at the coming election to commit a crime that the 
statutes of this Territory provides shall be punished in rrrtuin 
ways. The statutes of this Territory provide that certain persons 



320 SOUTH DAKOTA DEBATES, 1889 

are qualified electors ; that they can vote in a certain way ; that if 
their vote or ballot is duly tendered that the judges of election must 
receive it and that if they refuse to receive it they are guilty of a 
crime and can be punished for so doing. The question that it 
suggests to my mind is first, is this proposed amendment legislation, 
if so, does it conflict with the laws that we already have and under 
which we would operate if this were not added to the report of the 
Schedule Committee? Now, the statutes of the Territory provides 
over the age of twenty-one years, or any male over the age of 
twenty-one years who has declared his intention to become a 
citizen of the United States, has the right to vote at any election 
within the Territory. It provides what his ballot shall be; that it 
shall be upon white paper with the name of the candidates and the 
matters to be voted for either written or printed, or partly written 
and partly printed. * I desire to ask the gentlemen of this Conven- 
tion that if a qualified elector went to the voting precinct within 
the Territory of the proposed State of South Dakota, went to the 
polls at the place advertised that the polls would be open and 
tendered his ballot as provided by the statutes of this Territory and 
it was refused by the judges of that election if those judges would 
not be guilty of a crime and they could not be punished? I ask 
any gentleman, if under our laws as they now exist, if that judge 
could not be prosecuted, convicted and punished. I received no 
answer. I think that under the circumstances 'I am justified in 
answering it myself and if any gentleman does not agree with me 
I will like to have him correct me and give reason for such corrections. 
My idea is, gentlemen of this Convention, that if the ballot of the 
qualified elector was duly tendered in the proper manner and was 
refused by the judges of election that the judge who refused it would 
be guilty of a crime and that he could be prosecuted, convicted and 
punished under the laws of this Territory as they exist at the pres- 
ent time, because I do not believe there is anything in the Con- 
stitution as it now stands, anything in the Omnibus Bill as it was 
presented to us, anything in the Constitution as it will stand when 
finally adopted by the people of this Territory, that repeals the 
election laws of this Territory as to-day ex'istant. They say it does 
not strike at the qualifications of the elector. We will presume, 
for the sake of the argument, that this Convention deems it- wise 
to require that all electors shall vote upon tickets colored red, white 
and blue and the judges of election at the coming election in Octo- 



MR. COOPER'S VIEWS 321 

ber shall say that statutes of this Territory prescribes that the bal- 
lots must be on white paper. We refuse to accept your ballot be- 
cause it does not comply with the statutes of this Territory under 
which we are voting; we won't receive them. I ask, gentlemen of 
this Convention, if there is any power on earth to punish these 
judges for refusing to accept that ballot. I ask you in the name 
of reason and common sense the question, and ask every member 
of the Convention that if this Convention authorizes, nay requires, 
that a man would so vote a ballot red, white and blue, I ask if this 
man is not disfranchised ? I have noticed this to be true that when 
men are so very free to allege fraud and want to punish crime to 
such a great extent when there is no basis for it that they are willing 
yea willing and sometimes anxious to override the laws themselves, 
to commit a crime themselves and compel the agents of the gov- 
ernment under which they live, to commit crime. I am not talking 
upon the advisability of this law as to whether or not it \ ould be 
a good thing of a bad thing. I believe in throwing around the 
election everything that I can in the nature of restrictions that will 
protect the ballot and make our elections pure ; I would be in favor 
of. a law that would prevent fraud at the polls and would throw 
around the voter, conditions that would isolate him from men, when 
in the act or casting his ballot. I would be in favor of a law that 
would make it a misdemeanor to approach a voter and undertake 
to talk to him as to how he should vote, within a hundred feet of 
the polling place. I do not believe this Convention has the power 
to do it because this is not a legislative body. I cannot vote for 
it because when I became a member of this Convention I registered 
an oath in Heaven that I would do my duty faithfully and well, 
just as I understood it. I do not believe that this Convention has 
the power to do it. I do not believe that this Convention, by calling 
it Rules and Regulations, can say that a man must bring the initials 
of any man or set of officers to the papers to the polling place and 
show them to certain parties, even if this Constitutional Convention 
desires it should be done, before he can cast his ballot, and why? 
Because the statutes of this Territory provide another manner and 
another wav of voting. I do not believe we can change these laws 
of this Territory. I desire to ask. gentlemen of this Convention, 
where t he-re is any power to enforce any of these rules and regu- 
lations? Suppose as has been said by other gentlemen who have- 
talked upon the other side of this question, many towns and count- 



322 SOUTH DAKOTA DEBATES, 1889 

ies in South Dakota should refuse to comply with this amendment, 
would you refuse their vote? Suppose Tom, Dick and Harry all 
over this proposed State should go to the polls and say I want to 
vote upon a white ballot. I will write the names upon the ballot 
I want to vote for; I do not want the namse of Republican nor 
Democrat upon my ticket ; I want the names of my particular can- 
didates upon it. It is refused; what will be the result? The next 
five years will be blackened with the prosecution of judges and 
clerks of election. I say, that in my opinion this is a malicious 
scheme. I shall ever wish to prevent any deal of this kind. While 
I will go to as great length as any member of this Convention, when 
the time comes that we can throw around the ballot box, legally, 
new protection and safeguards that will insure purity in our elec- 
tions, not criminally but legally, I am heartily in favor of that ac- 
tion at the proper time and under the proper conditions. I am not 
in favor of this Constitutional Convention assuming that perogative. 
The members of this Convention do not even understand, I do not 
believe, do not even understand the working of this amendment. I 
never lived in Australia, nor Canada, nor England; I don't know 
what it is, but it seems to me that it is altogether "too English you 
know." I believe in this Union ; I believe in national independence ; 
I believe in this country ; I believe that when the time comes when 
they have got the power and right to do it, the people will go to 
work and declare a bill of this kind if it is necessary. They will 
do it in a legal way and then it will be effectual. But if we assume 
to legislate in this manner it will be illegal and you at the same time 
commit a crime yourselves and ask every judge of election to commit 
a crime and at the same time place upon yourselves the burden of 
carrying the prosecution. It must necessarily fail. 

Mr. Humphrey: It is not my purpose to enter into a legal 
discussion of this question nor even to make small of the arguments 
that have been presented for I have been very much edified by them. 
The few words I propose to say will be in explanation of the vote 
I shall cast. While I am second to none in my desire for protection 
of the ballot box, while I am in perfect sympathy with every effort 
to do that, the question of power, in my judgment, comes under this 
Federal law in this clause. I will say in regard to the Territorial 
law in regard to regulating elections and as far as any regulation 
that this Convention may stipulate or pretend to, or any regulation 



MR. HUMPHREY 323 



now required by the laws of the Territory, they in no manner dis- 
franchise anyone. This is simply a method of procedure in casting 
the vote. The latter part of the 3rd clause has been read here to 
substantiate the grounds that the ratification of the Constitution 
must be under the same restrictions as an election of delegates to 
this Convention. 

In the sentence preceding that I find specified the restrictions un- 
der which the delegates to this Convention were to be elected and the 
point to my mind is this: I find there are two different regulations 
for two different purposes, the one for the election of delegates 
in which it says the delegates shall be elected and the returns made 
in the same manner as prescribed by the laws of the Territory. 
Now when we come to the ratification of the Constitution it shall 
be under such rules and regulations as this Convention determines. 
Now then, we would not be permitted under that clause to make 
any restriction or regulation different from the Territorial law for 
any other purpose than the adoption of the Constitution, in my 
judgment. If we adopted this amendment, we would require two 
elections, one to vote for the officers and one for the adopting of 
the Constitution. I think that that is the only thing to which we 
could apply it ; that is the only point in which we have the power 
to adopt the regulations or restrictions other than those provided 
by Territorial law, if we elect officers at the same time. There is 
no question about the legality of our providing for an election, 
but unless we provide for two elections we could not adopt this 
amendment, and not being in favor of two elections, I would not 
vote for this amendment. 

Mr. Young: Under the influence of its personal oratory and 
under the influence of some of the doctrines of some of the speakers, 
I really expected to see this Convention break away into the greatest 
enthusiastic uproar. Springer builded better than he knew. I 
have just two points to make: One is, that it is not the right or 
duty to undertake to seek an enumerated power to make this regu- 
lation in the Enabling Act. This is part of a Schedule; this is not 
a part of the Constitution, and from the very nature of the Con- 
stitution" under which that Enabling Act was passed, why it would 
be just monstrous to enumerate the powers under which we should 
work in drawing up a Schedule and Ordinance. These specifically 
enumerated powers are the strict limitations under which we have 



324 SOUTH DAKOTA DEBATES, 1889 

been working and suffering here. They were brought about and 
had reason only on this ground, that the people of that part of the 
Territory of Dakota that formed the State of South Dakota had 
ratified the Constitution of 1885. A delegated body, such as this, 
has nothing in particular to do with it except those things as the 
commands in the Act require. They did not, however, ratify the 
Schedule and Ordinance ; it was understood that that disappeared 
with the action they had in 1885 and that as far as the Schedule and 
Ordinance was concerned we had full plenary power as a body, to 
bridge over this somewhat revolutionary state of things. The idea 
of our laboring under delegated powers, drawing a Schedule and 
Ordinance is altogether ou,t of any reason, because here we are 
framing a Constitution and we are not supposed to have the powers 
of ordinary State legislation. We are not tampering with the Con- 
stitutional Act because the people o the State have expressed 
themselves upon that point and therefore our hands are off from 
the Constitution but when it comes to the Schedule and Ordinance 
then we have all the power which "should be left to a people acting 
as a body politic which is about to assume the position of one of the 
dignified states of the Union. Now, just one other point, the 
point I make is that it is not our duty to take or look for any dele- 
gated, distinctly enumerated powers in the Enabling Act in draw- 
ing up these rules and regulations in our Schedule and Ordinance; 
the other is that we are not, in our Schedule and Ordinance, draw- 
ing up or prescribing the qualifications of voters. We are not, 
because there is something of a weak, diluted Australian System 
of voting. The Australian Ballot System has been considered by 
the State Legislatures, I think by every State Legislature in the 
Union. This Australian Ballot System has been adopted by the 
State Legislatures of at least twelve states without requiring per- 
haps an amendment to the State Constitution, so that therefore any 
modified form of the Australian System does not presume additional 
qualifications of voters and as this system has been adopted by the 
different States without requiring an amendment of the State 
Constitution, it cannot be construed into any different qualifications 
for the voters. The qualification of voters is always prescribed 
in the Constitution of the different states and as the adoption in 
these different States of this system of voting did not bring about 
an amendment of that Constitution I see perfectly clear, there is 



CARL G. SHERWOOD 325 



nothing like an additional qualification added to the voters in tha 
adoption of this amendment. 

Mr. Sherwood: I desire to say this as a closing proposition. 
I asked the gentleman from Bon Homme, Mr. Williams, what effect 
this would have upon questions where the counties refused to hold 
this election, and as an answer, as I understood him to say, tha 
they would not be compelled to hold them under this Australian 
System unless they desired to do so. The same was substant ally 
answered by the gentleman from Spink. The object of this system, 
if it has an object at all, is to reach those localities where frauds 
at the ballot are known to have been perpetrated. I admit that any 
rule, or restriction, anything that this Convention would pass, 
would be perhaps heeded and obeyed carefully as a rule in this State 
of South Dakota, wherever the Board of Township officers lived 
whose purpose and object was to defy this law while there was evi- 
dently an intent to defraud at the ballot box at hat place if they 
was no power that would compel them to yield to this 7 aw there 
would find the law would be an absolute nullity and of no effect 
whatever. If that is true, then this law we are considering, if it 
pass this Conven ion is going into effect where there w 1 be no 
violation of the law, going to be set aside in all that portion of the 
country where there would naturally be violation of the law. I 
desire to say that I am in full sympathy with every effort to throw 
every safeguard around the ballot box. I think if this Convention 
had the power they might pass these rules and regulations. I be- 
lieve as the gentleman who has preceded me, that they have not 
the power to enforce this regulation to the extent of going into 
these preeincts where the law would be violated and compel it to 
be respected there; hence I shall vote against the amendment. 

Mr. Willis: I begin to see light a little; I begin to find for nix- 
own purposes, for the purposes of determining my own convictions 
on this subject; I w r ant light upon the one point of authority, 
whether or not we have the authority. I have felt within myself 
of course I could not .express it judicially, I have sort jot" felt 
within myself somehow, even with the arguments with which we 
have been regaled on this floor, to be impressed with the conviction 
that the adoption of this amendment , either by intention <"" in fact . 
was no restriction upon anybody's ballot , upon the form of any- 
body's ballot. The idea to me is exceedingly far-fetched. I tan- 
not connect it as having any force whatever in this connection. I 



326 SOUTH DAKOTA DEBATES, 1889 

have a feeling way down within me that the mere presentation of 
that argument is a superfine sort of suggestion of the motive that 
may determine the position of this amendment. I am exceedingly 
glad for this little light from these lawyers. Of course it is, this 
great work is prescribed by Bill Springer's bill. The great work 
that we have been elected to do here has been such as to give most 
peculiar concern to the lawyers and the judges. We preachers 
and the other fellows have not had much difficulty and we feel proud 
we have this Convention and that we have a part in it. We feel 
that it was particularly now, the lawyers and judges that we want 
to hear from upon this one particular point of our authority. I 
have no sympathy with anybody who is weak-kneed at all when it 
comes to this question of throwing any rational safeguard around 
the ballot box. If there is anything, any subject that is popular 
today and that is momentiously gaining in popularity it is the 
question, the ballot box reform. There may be some here who are 
not Australians who recognize the necessity of reform in the Amer- 
ican ballot system, to whom the terrorizing methods employed in 
some parts of our fair country are perfectly familiar, to whom even the 
recital of blackest murder perpetrated at the polls does not cause 
a start of surprise who dare stand up and speak against the reform 
of the ballot box, but I doubt it. If there is anything that is dear 
to the average American it is the right of free ballot, but enough 
for that. The one point is, have we authority ; are we simply a set 
of manikins dangling upon wires adjusted by Bill Springer 'with 
automatic arrangement that with regular time and rhythm go 
through our set of dances and contortions? We are not that sort 
of a crowd. We want something provided ; call it Australian System 
if you will. We are not trying to restrict honest men at all. There 
is nothing that can be so construed, except by the most determined, 
I may say mendatious distortion to any attempt on the part of 
anybody to prevent Jim Jones or Pete Smith from voting as he 
pleases. Anything of that characterization is perfectly mendatious 
and what we want is light on this question of authority. The 
lawyers disagree, and when lawyers and doctors disagree then we 
must depend upon our own 1 good common sense in great measure 
determining these questions. Congress showed us no favor in 
this ; this Convention is doubtless as respectable as the othe and 
the other as respectable as this. At least we will allow this with 



AUSTRALIAN BALLOT 327 



a great deal of generosity. Congress did not say so probably for 
this you will give us credit. Lawyers disagree upon this proposition ; 
I do not think we are ready to vote; I do not want this dropped. 
If 1 judge the state of the Convention pulse correctly, taking into 
consideration the hour, I think it would down. I would hardly 
know just how to vote myself. I think we ought to vote upon this 
question intelligently. I move we defer further consideration of 
this question until eight o'clock tonight. 

Which motion received a second and upon being put to a vote, 
prevailed. 

Mr. Williams: I move that when w r e adjourn we adjourn to 
meet at eight o'clock this evening. Carried. 

Mr. Peck: I move that we do now adjourn. 

The Chairman: The gentleman from Hamlin moves that the 
Convention do now adjourn ; those favoring this motion please make 
it known by saying aye. The motion prevails ; the Convention stands 
adjourned until eight o'clock this evening. 

Hall of the Constitutional Convention, Sioux Falls, Dakota, 
Friday, July -26th, 1889, 8 P. M. Convention re-assembled pur- 
suant to adjournment. 

The President: Will Colonel Jolley, of Clay, take the chair. 

Mr. Jolley (as Chairman): Gentlemen of the Convention, the 
question is upon the adoption of the amendment offered by the 
gentleman from Hamlin. What is the pleasure of the Convention? 

Mr. Anderson (of Hand) : Inasmuch as there is some question 
as to the wording of the amendment before the Convention, I call 
for the reading of the amendment as it stands tonight. 

The clerk reads the amendment. 

RULES REGULATING THE ELECTION TO BE HELD UNDER THE AU- 
THORITY OF THE ENABLING ACT FOR THE ADOPTION OR RE- 
JECTION OF THE CONSTITUTION AND THE ARTICLE SEPARATELY 
SUBMITTED THEREWITH AND THE REPRESENTATIVES IN CON- 
GRESS; ALSO STATE AND JUDICIAL OFFICERS FOR SOUTH DAKOTA. 
SEC. 1. That at the election to be held on the first day of 
October, 1889, the election laws now in force in the Territoryof 
Dakota shall apply to and govern such election except as herein 
after specially provided. 

SEC. 2. Nominations for State officers, Representatives ia 
Congress and Judges of the Supreme Court shall be made by u in- 
State Convention and certified to by the Chairman and Secretary 
of such Convention, according to form number OIK- (1 ) hereinafter 



328 ' SOUTH DAKOTA DEBATES, 1889 

provided, or by any three hunderd (300) legal voters in South Da- 
kota attaching their names to a paper nominating candidates and 
filing the same with the Territorial Secretarv. 

SEC. 3. Nominations for members of the State Legislature, 
Judges of the Circuit Court and Judges of County Courts shall be 
made by any convention held in legislative and judicial districts 
or county for which any such officer is to be elected, and certified 
to by the Chairman and Secretary, according to form No. 2. here- 
inafter prescribed, or by any one hundred legal voters of any legis- 
lative or judicial district or county, by attaching their names to a 
paper nominating such officers, and filing the same with the County 
Clerk or County Auditor to which such nominations refer. 

SEC. 4. All certificates of nominations and nominating papers 
provided for in Section Two (2) shall be filed with the Territorial 
Secretary by the fifteenth day of September, and all those provided 
for in Section Three (3) shall be filed with the County Clerk or 
County Auditor by the twentieth day of September, 1889, and no 
certificate of nomination or nominating papers shall be acted upon, 
except accompanied with the consent in writing of the person or 
persons therein nominated, provided that in case of death or resig- 
nation, the authority making such nomination shall be permitted 
to fill such vacancy by a new nomination. 

SEC. 5. The Territorial Secretary, on the receipt by him of the 
nominating papers hereinbefore mentioned, shall forthwith transmit 
true copies of the same to the County Clerks or County Auditors of 
the several counties in South Dakota. 

SEC. 6. The County Clerk or County Auditor rhall. after the 
expiration of the time for receiving the nominating papers, forth- 
with cause to be printed such a number of ballot papers as will be 
sufficient for the purpose of election, and.the number necessary for 
each polling place shall be bound or stitched in a book of convenient 
form, and the County Clerk or County Auditor shall cause to be 
printed in English, in large type, on cards, instructions for the 
guidance of voters in preparing their ballot paper; such Clerk or 
Auditor shall furnish ten (10) copies of such instructions to the 
Jvidges of such election precinct, and said Judges shall cause them 
to be posted both inside and outside of the polling place, and said 
County Clerk or County Auditor shall, as provided by law, cause to 
be delivered to the proper Judges of election the ballot box and all 
poll books now by law required or by this ordinance required to 
conduct and complete the election, also the ballot papers, at least 
two (2) days before polling the vote ; and shall cause to be published 
in each newspaper in the county a true copy of the ballot paper and 
card of instructions, said publication to be in the last issue of said 
papers before the day of voting. 

SEC. 7. Every ballot paper shall contain the names of all can- 
didates for Representatives in Congress, State and Judicial officers, 
and members of the Legislature, and the name of the political party 



AUSTRALIAN BALLOT AMENDMENT 329 



to which each candidate belongs; ass<> tin- form of the ballot for the 
adoption or rejection of the Constitution and the articles separately 
submitted therewith as provided in this ordinance. 

SEC. 8. Each polling place shall be furnished with a sufficient 
number of compartments, in which each voter, screened from ob- 
servation, shall mark his ballot paper, and a guard rail so con- 
structed that only persons within such rail can approach within 
ten ( 10) feet of the ballot box, and it shall be the duty of the Judges 
of election in each polling place to see that a sufficient number of 
such places be provided and shall appoint a person to guard the 
entrance to such compartments and he shall be paid the same as 
Judges of election. 

SEC. 9. The voters being admitted one at a time for each com- 
partment where the poll is held shall declare his name, and ~v\ hen 
permitted by. the Judges to vote, his name shall be entered on the 
voters' list and he shall receive from one of the Judges of elee nn 
a ballot paper on the back of which the initials of one of the Judges 
of election shall be so placed that when the ballot paper is folded 
they can be seen without opening it, and the Judges of election shall 
instruct him how to mark his ballot paper. 

SEC. 10. The voter, on receiving his ballot paper, shall forth- 
with proceed to one of the compartments of the polling station and 
there without undue delay, not exceeding five minuets, mark his 
ballot paper by putting a cross (X) in the space to the right hand 
side of the name of the person for whom he desires to vote and if he 
desires to vote for any person who:-e name is not on his ballot paper 
he may write or paste on his ballot paper the name of the person 
for whom he desires to vote, and shall thenfoldup his ballot paper, 
so that the initials on the back can be seen without opening it 
ascertain that the initials are on it and that it is the same ballot 
paper given to the voter, and shall then place it in the ballot box 
and the voter shall quit the polling compartment as soon as his 
ballot paper has been put in the ballot box. 

SEC. 11. The Judges of election, on the application of any 
voter who is unable to vote in the manner provided, shall assist 
such voter by marking his ballot paper in the manner d CM red by 
such voter in the present e of the persons permitted to be in the c -om- 
partment or< upied by the Judges and no others, and shall place 
such ballot paper in the' ballot box. and when the Judges of e!e( tion 
shall not understand the language spoken by the voter claiming to 
vote, they shall swear an interpreter, who shall be the means of 
communication between them and the voter with reference to all 
matters required to enable su< h \ oter to v ite. 

SEC. 12. A voter who has inadvertently dealt with the ballof 
paper given him, in such manner that it cannot be conveniently 
used, may, on delivering the' same to the Judge's, obtain another 
ballot paper in place of that so delivered up. 

SEC. 13. Any voter refusing to take the- oath or affirmation <>f 



330 SOUTH DAKOTA DEBATES, 1889 

qualification as required by law, when requested to do so, shall not 
receive a ballot paper or be permitted to vote. 

SEC. 14. No person shall be allowed to take his ballot paper 
out of the polling place, nor, except as in the case provided for by 
Section Eleven (11), to show it when marked to any person so as 
to allow the name of the candidate for whom he has voted to be 
known, and any voter who violates or refuses to comply with this 
ordinance shall not be permitted to vote. 

SEC. 15. In addition to the Judges and Clerks of election, 
one watcher at each polling precinct for each political party pre- 
senting a candidate or candidates for the suffrage of the voters and 
no others shall be permitted to be in the compartment occupied by 
the Judges on election day, and such Judges, Clerks and Watchers 
shall, before entering upon their respective duties take and subscribe 
to the following oath or affirmation; 

I, John Jones, do solemnly swear (or affirm) that I will keep 
secret the names of the candidates for whom any voter may have 
marked his ballot paper in my presence at this election, so help me 
God. 

SIGNED: J. J. 

Sworn or (affirmed) before me at this 

first day of October, 1889. 

Justice of the Peace or Judge of Election. 

SEC. 16. Immediately on the close of the poll the Judges, in 
the presence of the Clerks of Election and such of the watchers and 
voters as desire to be present, shall open the ballot box and proceed 
to count the number of votes for each candidate; in doing so they 
shall reject all ballot papers which have not been supplied by them 
as Judges of said election, all ballots by which more candidates have 
been voted for than there are officers to be elected ; also those upon 
which there is any writing or mark by which the voter can be iden- 
tified; all the ballots voted and counted, and those rejected, those 
spoiled and those unused, shall be put into separate envelopes, and 
all those parcels shall be endorsed so as to indicate their contents, 
and be placed in the ballot box and a return of the result of the 
election at the polling precinct shall be made to the County Clerk 
or County Auditor, as now required by law for the election of mem- 
bers of the Territorial Legislature. 

SEC. 17. All expenses incurred under these rules to be a charge 
against the county and audited and paid as other claims against 
the county. 

Mr. Anderson (of Hand): I shall not attempt to discuss'the 
legal aspect of this question at this time but I wish to state some of 
the reasons to this Convention why I am in favor of this amend- 
ment. In the first place the people whom I represent are all unan- 
imously in favor or this proposition, upon the adoption of a prop- 



MR. ANDERSON OF HAND 331 

osition of this kind, possibly with the exception of a few political 
bulldozers and ticket peddlers at two dollars per day will receive 
the support of most men; men who boast judiciously and expe- 
ditiously selling their votes for every election of the last seven years 
will not be pleased should this Convention pass this amendment. It 
is for the purpose of blocking the wheels for this class of men, gentle- 
men of the Convention, that I am in favor of the adoption of this 
proposition. At the last general election held in our county, in 
one township it is estimated that there was expended to purchase 
votes, $1100. and gentlemen, it was openly and publicly done in a 
great many cases. In another township in our county and they 
cast votes in that township, there was as high as $1000. expended 
to purchase and \nfluence votes. Let me say to you gentlemen, 
that in that particular township, not receiving the price for their 
votes, at the last election held in our county for the election of dele- 
gates who are here on this floor, they refused to vote for the candi- 
dates who were before them for election, but met in Convention and 
instead of voting the ticket that they had provided, they voted for 
cat li other, and when questioned as to why they adopted that 
report, their reply was: "Why, the candidates didn't put up 
anything; they didn't even come around and set up the beer." 
Gentlemen of the Convention, this is only a part of the state of 
affairs existing in the Territory of Dakota. I am informed that it 
exists, not only in the County of Hand, but that it exists in other 
counties. Now, gentlemen of the Convention, the opportunity 
is offered for you to place yourselves upon record and so far as the 
legal aspect of this Convention is concerned, I am satisfied myself 
that we have the full power of authority to adopt a proposition of 
that kind. I shall not detain you by giving my reasons for having 
arrived at that conclusion. We have heard a good deal in the last 
four or five years about the purity of the ballot, an honest ballot 
and a fair count, and you, gentleman, having expressed your views 
of an honest ballot have an opportunity tonight to place yourselves 
upon record as to whether or not you are in favor of an honest ballot 
and a fair count. I do not expect, gentlemen of the Convention, 
to appear in public again, in Hand County as my friend from Cod- 
ington remarked, this is my last appearance. I have no political 
ambitions, aspirations, and if I had I belong to the hopeless mi- 
nority. But I do wish to see adopted, a plan that will pivservr tin- 



332 SOUTH DAKOTA DEBATES, 1889 

purity of the ballot box; that will protect the voter, the laboring 
men., the employees of the corporations in an independent exercise 
of the right of suffrage. I hope this Convention will put itself 
squarely upon the records. This system is being adopted by quite 
a number of the states. I prophesy it will be in every state in 
this Union. Probably gentlemen, you will see the time if you vote 
against the proposition to protect the ballot you may be ashamed of 
the vote you cast against it. After what I have seen practiced in 
the Territory of Dakota I do not intend to let an opportunity pass 
to cast my vote in this Convention upon this proposition and 
squarely in favor of it. 

Mr. Dickinson: I have had nothing to say this afternoon, 
because I have had considerable to say in the Committee in the con- 
sideration of this subject and because I was very anxious to see 
what might be said upon the other side, that there might be the 
fullest expression, the strongest expression possible in opposition 
to this measure which has been proposed. Mr. President, I must 
say that I was amazed at the tenor of the arguments and upon the 
result of the arguments upon those who were present, gentlemen, 
who have been active as I have. I confess freely, I myself have 
been active in the endeavor to form this measure and secure the 
adoption in this Convention of these rules. For by the tenor of. 
these addresses delivered this afternoon and apparently by the 
conviction produced upon the minds of many, we may be open to 
the charge of committing the greatest offense against the rights 
and interests of the people of the State of South Dakota. I have 
been contending, not for attempts to provide for wholesale bribery 
and attempts to so demoralize and corrupt the election laws that 
it might be possible to illegally vote to corrupt the vote and 
thus as unerringly as the sun follows dawn to place a stigma upon 
the fair name of our state because thereof. But have been contend- 
ing, Mr. President, by an honest endeavor to provide in some measure 
for a just, honest, pure vote, for a just, true and fair expression of 
our people of the State of South Dakota and their will in reference 
to certain great issues that come before us in the 'first days of 
October next. We have in this hall as high and honorable and rep- 
resentative a body of men as you could get together and we are met 
here for acting or proceding upon questions of vital importance 
and far reaching in their trend; a bodv of men such as will never 



MR. DicKiNsoN 333 



come together again in the history of this State from now on to the 
end of time, taking into eons deration our business, (iravf inter- 
ests over which the hearts and minds of the honest people of 
South Dakota burdened and anxious and the decision they 
desire most earnestly shall be true and right and just; 
true expression of the minds and wills and purposes and in- 
tents of the people. And Mr. Chairman, ) am not a lawyer, but I 
desire to call attention to the line of attempted argument that has 
been brought up. All of these lines of arguments and this outpour 
of. eloquence has been upon us, not for any attempted corrob-oration, 
not for anything openly unjust because we are attempting to pro- 
vide for purity and a just expression of the minds and will f the 
people. The force of the arguments to this proposition, made and 
proven apparently to the satisfaction of those who have spoken, 
is that we are here without power to do anything for the protection 
of the ballot box, 'but I w r ould venture in the opinion that we have 
the power, that it comes to us from three fold sources. First, that 
we have the powers delegated to us in this Enabling Act from the 
Congress of the United States as to the larger parts of the inter- 
sets involved in the election this fall. There has been no dispute 
of the claim that we have the power and even those who have spoken 
upon the other side have conceded that we have the power as to 
a submission of the Constitution to a vote of the people, as to the 
submission of the amendments relating to the minority represent- 
tion, as to the submission of the amendment relative to Prohibition, 
as to the submission of the question of the location of the temporary 
seat of government; there is no question but that Congress gives us 
full power to make rules governing the election relating to those 
topics at all. It is conceded by every lawyer that I have heard 
speak upon that subject that it was a part of ordinary wisdom o 
conclude that when making that provision it was intended, when 
it states that you would also provide election at the same time for 
State officers, it was simply presumed to say that if we made laws 
for governing one part of the elec tion, it might be presumed to i ovu r 
the remainder of the- issues of the election held at the same time 
but there is one consideration that I wish to call attention to and 
that is this: Speaking of the election of the delegates to this Con- 
stitutional Convention in the election of the 14th of May. the 
Enabling Act spe< ilics that that election was t" take place under 



334 SOUTH DAKOTA DEBATES, 1889 

the rules of the Territory of Dakota. Then passing from the Con- 
vention when it was assembled, was required to submit the Con- 
stitution to the people, says that they may vote for or against the 
Constitution, under such rules as the Convention may prescribe. 

Mr. President, why is it that the Enabling Act specified what 
election laws shall govern the election of delegates in the spring. 
I venture to guess that it was to determine what laws should 
govern because there would be no body in session; it would be 
before the Convention had existence ; therefore Congress points out 
what laws' shall govern and when we are assembled in Constitutional 
Convention it says the Convention might provide rules for the elec- 
tion upon the proposition, and when we come to the provisions of 
the 24th section of the Enabling Act for the election at the same time 
of the State officers, which we may by ordinance provide for and 
for the judges at the same time. Again nothing is said in reference 
to the laws that shall prevail and govern the election of State 
officers. Why is the Enabling Act silent there? I take it, Mr. 
President, that it is because it was deemed that this Constitutional 
Convention, having come together and having been thereby em- 
powered to provide for the election of State officers, would without 
provision be provided with power to make the rules that should 
govern that election. It was silent with reference to the body 
that would be in existence and failed to provide for those election 
laws. It speaks definitely of what election laws should prevail 
when no such body was in existence and when we come together 
and provide for the election of officers, here it leaves us to oiirselves 
to say what rules shall govern. It was the intention that those 
rules should be the rules of the Territorial election laws, if that 
law was to guide, I believe that that would have been definitely 
stated. 

The Enabling Act has not been carelessly drawn. What I say 
is this: Those men knew what they were doing. I believe that 
they knew what they were calling into existence. This Constitu- 
tional Convention, made up of select representatives of the people 
of South Dakota, they honored us and honored themselves enough 
to say that we could be trusted to provide them ourselves. You 
may by ordinance provide the way for the election of State officers 
at the same time, by. ordinance, and that ordinance in the opinion 
of the best lawyers carries with it the power to pass the rules 



MR. DICKINSON 335 



governing the election as well as the power to submit the names of 
the officers that shall be elected and the offices that shall be rilled. 
Now, Mr. President, I insist upon that point, that if it had been as 
essential as these men would have us believe it is, they would be 
so anxious that we do nothing to endanger our prospects for we 
must not forget they say that the President may shut us out at 
the time when statehood is just within our grasp. If it had been 
so essential that point would not have been left unguarded. We 
have found as we have been working carefully through this Con- 
stitution, we have found our point carefully guarded, we have found 
that they made no great mistakes. I can easily believe, and most 
thoroughly and sincerely believe that even had Congress gone so 
far as to say that we might have provided for our own election we 
could have been safely trusted to do it and that if we had done so 
we would have conducted the election under the Territorial law. 
We have no right to make the presumption that we must hold the 
election under the State law. This language is compulsory when- 
ever mention of Territorial business is made as the adoption of 
the Constitution and the amendments severally submitted, the 
extra provision for the temporary location of the capital and the 
like. Mr. President, I am not a lawyer; I will confess that I com- 
menced studying this point because the people were interested and 
were asking questions about it, whether the laws of the Territory 
would prevail, away last March, asking about that and anticipat- 
ing that we would have the power to provide the rules for the elec- 
tion. I will confess that I commenced studying it myself and ask- 
ing the opinion of every lawyer I came in contact with and have 
taken it to every man that is recognized as being authority on that 
subject. I have in case after case, found the unhesitating answer, 
that it gave us all the power anybody could possibly assume ; that 
the complete power was our's to provide for this ballot. To pro- 
vide for an honest election against which there should be no sus- 
picion or taint whatever. Gentlemen, I would have such a rule 
here today as a body representing the several states to be. We 
come here under a government in which majority rules and there 
is under the God of Nations no higher authority than the will of 
the majority. We are proud of it ; we want that the majority shall 
rule in this. We come as agents of and representing the majority 
of the people of South Dakota. We have met in Convention so to 



363 SOUTH DAKOTA DEBATES, 1889 

speak, as embassadors of the majority of the people of South Da- 
kota, cognizant of their will and sentiments and we are supposed 
to be here to express it for them and if the majority of the delegates 
belonging to this body shall deem it the part of wisdom and within 
their powers and province, that decision will be the decision of 
the people of South Dakota. Any decision or vote passed here 
today embodying our best wisdom and discretion, bearing upon its 
face the evidence of honesty and sincerity of purpose, will merit and 
be clothed with the dignity of an expression of the wisdom of the will 
of the people of South Dakota as a matter of law. We are sent 
here by the choice of the people to make or finish and adopt a 
Constitution a greater, graver or more serious work than that never 
has been enacted in the history of any nation or any state. They 
demand that of us and expect and trust us to do that and if the 
majority of this Convention I say shall decide that it is wise and 
best to pass certain election laws for the government of the election 
this fall it is the recommendation and expression of the will of the 
majority of the people of South Dakota. I know a paltry few, 
an insignificant few, will not endorse our actions, but it will be so 
recognized by the people. When a few years ago the Constitution 
of 1885 was submitted, when we had no State, when we had no 
authority, when we had no power but that which the people gave 
us, when the Constitution was provided and submitted, we had a 
Schedule and Ordinance providing for the manner of election. The 
people solemnly and carefully observed those rules and we never had 
a more conscientious election than that when it was preceded 
under by the people who recognized it as the expression of the ma- 
jority. Mr. President, at this time, when graver issues are at stake, 
when there are important issues to be decided, I venture to believe 
every honest delegate upon this floor agrees with me that when we' 
go before our people with this amendment as a part of our Schedule 
and Ordinance that the people will respect the recommendation 
of this Constitutional Convention ; that they will support earnestly 
and carefully, respect all rules for that election that we recommend. 
For they know this: Some of the delegates here on this floor seem 
to have forgotten that this is not in the interests of corruption, is 
not anything dishonest, anything unseen ; it is honest and expresses 
their will ; it is what they want. They want to do away with some 
of the baneful pernicious practices at the polls, the greatest inter- 



MR. DICKINSON 337 



ests of the Territory want it done ; the grSat mass of the people of 
South Dakota are loyal to civil purity and are opposed to bribery, 
corruption, intimidation and fraud. We need not fear to trust 
ourselves, Mr. President, to trust ourselves to the people for any- 
thing that we enact, as I say, even as their representatives. We 
will have no fear to submit to them any enactment which is an 
honest and true expression of their minds and wills to their suffrages 
in the election in October. Mr. President, I have filled with wonder 
at the men of straws, that anxious men, members of this Convention, 
have set up and made war upon this afternoon. The first of these 
is the one where it is said that if we passed this bill, endorsed this 
provision and adopted these rules that Mr. President Harrison, when 
he learns that these were the rules under which the election was 
conducted will refuse to admit us as a State. Mr. President, I 
am astonished that any intelligent man will undertake to make 
use of such a proposition. That we made an honest attempt to 
secure an honest election, that the people were accustomed to vote 
by this means, that they did so vote by the rules and measures that 
were eancted to promote purity at the ballot box and discounte- 
nance bribery, intimidation and coercion; therefore, because he had 
reason to believe that the election pronuunced the expression of the 
sentiments of. the people of Dakota, therefore, he would refuse to 
admit the State into the Union. I would say attempt it if the bal- 
lot boxes were left open, then left as they have been, subject to 
all charges of corruption that they have been, how those men use 
that insane argument and bring it forward expecting any intelligent 
man to believe it is beyond my comprehension. I have greater 
confidence in the President of the United Staes than this. I would 
be ashamed to even meet the powers that be if I, for one moment, 
believed that that jeopardizes the causes of statehood to attempt 
to have a pure election next October. The other man of straw 
that has been set up here is this, that we are aiming a blow at the 
right of suffrage, disfranchising voters by prescribing certain rules. 
Mr. President, I would ask any man on this floor, who is disfran- 
chised by this movement. A re we opposed to any rules we do not 
feel called upon to com ply with them, we do not take tin- trouble to 
go and secure a ballot or if the officers of the election refuse to 
prefer charges against them. The cause tomes up for hearing. 
we are put on the stand, no judge in South Dakota would convict 



338 SOUTH DAKOTA DEBATES, 1889 

on that charge (?). Were I a lawyer, I should hesitate very much 
to jeopardize my reputation as a lawyer by such a statement as 
that. The answer would be and the answer that would silence 
all objections, that that man would have the opportunity to take 
a ballot the same as other men took one, that was prepared for him, 
that contained all names of all candidates and every proposition 
to be submitted to the people, that he might have an opportunity 
to take that by himself and without being overlooked, and without 
intimidation or coercion to make it right, to make it just exactly 
what he wanted it if he was not pleased with the regular nominees 
to strike them all off and put in whatever he w r anted. He could go 
and deposit the ballot and exercise the right of suffrage ; one man 
could do that and every man required to do it. Why? In order 
that that man might be protected in the free exercise in his own 
right of suffrage and demand that every man might be protected 
in his free exercise of suffrage, the proposition is in order that no 
man can hold over another the whip and use intimidation on that 
if he did not vote so and so, such and such would be the result. 
On the other hand, going by himself he makes up the ticket as he 
will without knowledge of anyone and beyond power of anybody 
to coerce him afterward. This is protection of that voter, the pro- 
tection of every voter, this is freedom secured as far as in our power 
to secure it ; this is for the interests of that man and every man 
and my friend here whom I respect and whose nationality I respect, 
would be deprived of no right of suffrage. He would have every 
opportunity to vote for anybody he might desire. 

Mr. Zitka: Not if he voted according to the laws of this 
Territory. 

Mr. Dickinson: If he voted as every other voter voted and 
as he should vote. There is one other point, Mr. President, that 
has been brought up, that if we recommend such rules and the 
people fail to pay any regard to them it has been openly said by 
those who may be citizens of this town that it would not be respected 
in Sioux Falls and other places like this and what is the use of passing 
that would not be respected. I repeat the facts stated in my open- 
ing remarks the honest careful observation of the former Consti- 
tution I have firm faith in the people of South Dakota, that they 
would pay no less deference to the recommendations and rules ap- 
pointed by this Constitutional Convention. Mr. President, there 



MR. CLOUGH TAKES THE FLOOR 339 

is in these rules, if passed by this body the power of self endorse- 
ment. No one has the right to assume in Sioux Falls or anywhere 
else in South Dakota the people in South Dakota would not sustain 
us in this amendment passing such restrictions. There is nowhere 
else that we have stronger pleas for a passage for this or a similar 
measure than to the people- of Sioux Falls. We have had from no 
other locality stronger statements made that we were undoubtedly 
empowered to take such action and that it was demanded of us 
to make some such rule. We take this as self-evident there will 
be a larger number of citizens here that will be interested in seeing 
these rules applied and it will be partially an incentive to diligence 
on the part of those who control elections in this city or anywhere 
else in South Dakota not to refuse to adopt and put in force these 
rules and regulations, which other parts of Dakota are using and 
which are intended to secure a fair expression of the will of the 
people. If anybody disregards these rules in what interest will 
it he, why willfully do it? W T ill it be in the interest of purity and 
true suffrage of the people? No, it will be in the interest of cor- 
ruption, bribery, false election and false return. Mr. President, we 
have said that great interests are coming up for decision. I wish 
to see that every delegate here and every intelligent citizen who 
has pure and honest intentions to care for the will of the people 
enough to be in sympathy with this amendment and thereby let- 
ting the people of South Dakota know that the great mass of the 
people demand and expect something of this kind. There has not 
been a day since we have been here this long session that there has 
not come up to us letters and petitions requesting that we pass some 
such law or provision as this governing the election this fall. We 
know what the interests of the people are ; we know what they ex- 
pect and we are here to put ourselves upon record upon one side 
or the other. 

Mr. Clough: There has been a great deal of honest, earnest, 
inquiring talk here this afternoon. One thing I think has been 
settled and that is this, that this Constitution has vested in it the 
authority, let me go back, I do not want to say vested authority. 
We have heard a great deal about the Omnibus Bill conferring 
authority upon us; gentlemen our American citizenship confers 
upon us all the authority and perogatives of American freemen. 
Our Omnibus Bill takes from us nearlv all of them, it confers noth- 



340 SOUTH DAKOTA DEBATES, 1889 

ing, it takes from us, and in the shading process it takes, 
some; it leaves few. I could not understand from any talk which 
we have heard since we have been in Convention how it is that our 
powers were taken forpn us, and a little something was left in their 
stead ; the rest was conferred upon us. I think this is the difficulty, 
whether or no we have the power to regulate the elections of the 
officers to be elected this fall. It is certain that we have the power 
to protect the election for this Constitution. I want to say to you 
gentlemen, that there is a deep and earnest solicitude throughout 
the entire length and breadth of the Territory of Dakota that the 
election upon the Constitution and these amendments shall be 
a most honest and fair one. I have canvassed this Territory well 
from east to west, from north to south. Pardon me if I say that 
there is no solicitude concerning the election of the officers that 
shall be the nominees of the party. They believe that the parties 
in this Territory are able to handle all those issues either under 
the present existing rules or any that this Constitutional Convention 
may adopt; in other words that the men who pass the crisis of the 
Convention will be sure of their election. I say to you that the 
better men and the better women of the Territory are mightly 
solicitious for amendments to the Constitution ; that the 24th 
amendment arouses the Farmers' Alliance solicitude ; others are 
solicitious for the 25th. Now if we can protect the officers who are 
running because of the election that is provided for in this Omnibus 
Bill we ought to do so. I say, gentlemen, every man on this floor 
is for a time vested with the responsibility of lawyers. I begin 
to feel with all my reverence for lawyers that the biggest man on 
this floor cannot be above suspicion of legal quibbling over this 
proposition. Most of you have admitted that you have the right 
to do this thing and gentlemen, what we have the right to do this 
Territory will hold us responsible for doing ; what we have the right 
to do if we do not do that we shall be recreant to our trust in the 
degree that we sleep upon our rights. If we have no right to hedge 
and limit the election of the officer, then let us resubmit this sect:' on 
and send it back and as other men have furnished testimony as to 
the characteristics of the voters of certain localities of our State, 
I am constrained to say this that during the few years that I have 
been in this Territory it seems to me that I have come in contact 
with the most magnificent matured manhood that I ever met. 



MR. CLOUGH 341 



It seems to me that I never met so high an aggregate of intelligence an 
and moral attributes as characterizes the general people of the State. 
We have heard the moral character of the voters of Dakota stigma- 
tized, heard them called thugs and all that sort of things, yet I 
stand here and plead to you, if there is a cause for such an in- 
dictment to rest upon the voting population of our State, my 
friends I stand tonight to plead with you to protect from such 
hands the Constitution that we are to submit. The amendments 
on Prohibition, the amendment on Minority Representation, and 
the rights of the citizens of 7, I believe, of Dakota's cities for an 
honest ballot for the capital location. I little thought that I would 
say very much on this question until I heard from the gentleman 
from Beadle ; when I heard him criticise and stigmatize the voters 
of Dakota as he did, I appeal in the name of God for something to 
protect us against them. I said I will stand on this floor in defense 
f or he knows Dakota as I have not known it ; if he finds such indict- 
ments against the voters of Dakota. I have not found it ; he as a 
lawyer and politician knows various people as I do not know them 
for I want to say to you that a minister only sees the better side 
of people ; a man never shows his mean side to the preacher ; he is 
afraid he may be called upon to bury him sometime and he wants 
him to give him a nice kind of a eulogy. I say you have heard h m 
and I come to you to say in the name of this Constitution, dear to 
the people of this Territory, dear to its men and women, I come 
to plead that you hedge it about ; set guard over it and protect it 
and do not allow the men that he tells about to dominate or control 
the election upon the adoption of the Constitution. If they 
, must have that privilege with the officers. If we have got 
them in Dakota I do not believe that we have got many of 
them, but if you have them by the tens of thousands judging 
from what I have heard here today, if you have got them I do 
not believe many of this body yet believe this always must 
be. Take care of this Constitution. What can we do about 
it? Let us, if wt- cannot do anything else, re-submit it with 
instructions to the Schedule Committee.' .Apply this principal 
for in its working it deserves honorable mention and require 
of every member of this Convention and of this Territory to submit 
to it until we do find some other way. I appeal to you if there is 
scarcely a man who loves this commonwealth and these gentlemen 



342 SOUTH DAKOTA DEBATES, 1889 

love it as just that ; if there is scarcely a man that does not say, give 
us something in the nature of a reform of our ballot system. Now, 
gentlemen, in the name of the Omnibus Bill one thing more that 
is perfectly astonishing; we have heard of technicalities; one Com- 
mittee to which I belong brought in a report in direct defiance of 
the Omnibus Bill. It was passed without a dissenting vote. The 
Constitution says that there shall be three times as many repre- 
sentatives as senators. We brought in 45 senators and one hundred 
and twenty-four representatives. It says that there shall be in 
each senatorial district, three epresentatives, but you have not 
done it. In some there is six or seven and in some there is only 
two possibly in none less than two I was going to say in some 
there was only one. Now, .gentlemen, this standing on techni- 
calities is altogether too thin a thing if you can protect my friends 
that are running for the Legislature, isn't it reasonable to suppose 
we can protect the Constitution in the proposition as true as we 
can protect the interests of Sioux Falls and these other places for 
the capital? I have heard several say within the last week, "Mr. 
Clough, give us a straight, honest ballot; that is the only thing to 
give us the fair show with all these other conflicting interests." 
Now, gentlemen of this Convention, in the interest of all these 
issues and good government give us these safeguards and this pro- 
tection to the ballot box secured by this proposed amendment. 

Mr. Van Buskirk: I came into this Convention as I have said 
once before today, thinking that we could adopt this or some 
similar amendment with the report of the Schedule Committee. 
The time was long before this question of the Australian system of 
voting began to be agitated in this Territory I had given it thought 
and felt interested in something of that character being done. The 
more I have listened to the arguments, the more carefully I have 
canvassed the Omnibus Bill, the more I have become convinced 
that we have no power whatever to introduce into this Constitu- 
tion the provision of this amendment. There has been what pos- 
sibly might be termed two lines of argument offered here. One 
is upon the power or this body to enact this amendment and the 
other has been upon the policy of such legislation. Have we the 
power? Now it is idle to undertake to argue for a moment before 
a logical mind that we have the power because as one gentleman 
stated today, that we shall go to work and do it regardless of power. 



MR. VAN BUSK.IRK 343 



The policy of these arguments much of it, arises out of this condition 
of things. It is apparently the opinion of the gentleman who ad- 
dressed this Convention we have a standing here as a body :n the 
same position as the Legislature convened under the provisions of 
the Constitution having plenary power excepting so far as the 
power is limited by the operation of the Constitution for having 
no inhibition under the Constitution which the people of this Ter- 
ritory might adopt you might go to work and give a street railroad 
or gas works exclusive rights to lay their tracks or their mains and 
light the cities with gas. I say that there is inhibition and in the 
Constitution the Legislature may under the Constitution have 
plenary power and might confer just such privileges upon a cor- 
poration. We may just as well meet this question fairly, squarely 
as to dodge it. The first Legislature under the organic act this 
being a territory, has no legislative powers except what are pro- 
vided, none at all. Gentlemen, a few years ago down South they 
disregarded the laws of this country ; they got together and legis- 
lated common laws. They found they could not do it. They have 
not found a solitary thing that the Supreme Court said bei air.e 
law and binding. The Constitution and Laws of the United States 
control all of us throughout this broad land and as I have said in 
the Territory it is the law of the land until such time as Congress 
in its infinite wisdom otherwise shall say. If it pass a law author- 
izing us to organize a Territory and in its wisdom in the Organic 
Act of the Territory confers upon us the powers of the Legislature 
to that extent which they may say this Enabling Act does very 
well. I say the powers of the Legislature of the Territories is pro- 
vided and has to be derived from the terms of the Organic Ai t 
precisely as the powers of the government of the United States 
is limited and defined by the Constitution of the United S 
You will readily see in a moment that we have no plenary power, 
nor the State Legislature would not. That is derivitive and when 
gentlemen insist here that we may reach out on our powers that is 
conferred upon us by act of Congress for the purpose of legislation 
and have provided for an election, this is a great misconception 
of the theory and history of purposes of our government. There 
is necessity for it you will see in a moment. Now then, where are 
we? We must go to this same very identical Organic Act, bei ause 
our powers arc derivitive and we must find our powers we derive 



344 SOUTH DAKOTA DEBATES, 1889 

by that act. We must look to this Omnibus Bill and its terms 
and provisions for the puspose of ascertaining what power we 
derive to transact business here in this Convention. Strictly and 
legally since we could not without we derived the power from the 
act of Congress conferring it upon us. Now, if the only question 
perceived in this is that of authority of the Convention by virtue 
of the act of Congress then they have the right to confer upon us 
just such limitations as they please and we are bound by them. 
Gentlemen, the intent generally is to a logical idea of what might be 
said in the argument by some other gentleman on the floor, to tear 
that down and therefore to disprove the assertion which they may 
make. I may attack argument which counsel in court might make 
and demonstrate the falsity of that. It does not demonstrate the 
correctness of the position I occupy before the court or public. It 
is clear that the whole line of argument here, and while I desire to 
accept the other theory, I cannot stand here with my knowledge 
which has been the accumulation of most a life-time and which is 
largely derived from forming legal "deductions from evidence for a 
measure which I know cannot be sustained at all. Congress used 
that language understand ingly, they used it in this light. that it 
fell however within the authority of the Legislature to provide the 
amendment to be submitted to the vote of the people. Now, when 
they do that they go to work by requisition of the act and provide 
the formal ballot which shall be voted whether the people were to 
accept the amendment to the Constitution or not. Congress says 
we may fix the regulation in relation to it. We go to work and say 
a man might vote one way and then fix the form of his ballot and 
say if he votes the other way that is the form of his ballot and that 
he cannot cast it only one way and when Congress used that form 
with reference to the adoption of this Constitution, Congress meant 
by that simply this, that we might do as has been done by legis- 
lative bodies in other instances ; so that when a man went to vote 
it should be intelligently voted and as the voter intended it to do. 
Otherwise there are gentlemen who might put in a vote for another 
man, a different person than he intended to. With a different 
form of vote he actually would not be able to determine what those 
votes were. Now, if they had designed that we, here in this body, 
might provide regulations for that election, they would not have 
said we could provide regulations in reference to the Constitution, 



EDGERTOX AND CLOUGH DEBATE 345 

but they would have said more had they intended more. They 
would have said that we might provide rules and regulations gov- 
erning the election for the Constitution and State officers. They 
would not have stopped short of it. They would have said, you 
may vote upon this Constitution, you may at that time elect State 
officers and you may provide the necessary rules and regulations 
for that purpose, for the purpose of controlling that election; why 
did they stop and say that we might provide regulations upon the 
question of the adoption of the Constitution ; why did not they go 
further if they meant more. That is the difficulty in this whole 
thing. I wish it was otherwise, and if the time ever comes when I 
can go to the polls and help elect a man that will go to the Legis- 
lature and provide a measure giving us just the system desired in 
this amendment and which I have desired for years before it was 
adopted in this Territory, I will support that- man gladly and if L 
can aid in preparing such a bill and carrying it through he can have 
my services. 

Mr. Edgerton (of Davison): I understood that first gentleman 
from Codington to say this ; that the Constitution provides that we 
should have three times the number of members that we have 
Senators and that every senatorial district should have three mem- 
bers and that we had violated the provision of the Enabling Act. 
I would like the first gentleman from Codington to call my attention 
to the section he has violated. 

Mr. Clough: I have read that several times. Three times 
forty-five isn't it? 

Mr. Edgerton: I belong to that hateful class lawyers; but 
they are trained to speak in business like this with some degree of 
accuracy. "The number of members of the House of Representa- 
tives shall not be'less than seventy-five nor more than one hundred 
and thirty-five. The number of members .of the Senate shall not 
be less than twenty-five nor more than forty-five." "The sessions 
of this Legislature shall be bi-ennial except as otherwise provided 
in this Constitution." 

Mr. Clough: There is another paragraph there. 

Mr. Edgreton: That provides for that minority representa- 
tion. I apprehend that the intelligence of the people next fall will 
say that it will never be a part of the Constitution. 

Mr. Willis: Mr. President, 



346 SOUTH DAKOTA DEBATES, 1889 

The Chairman: The gentleman from Davison has the flcor. 

Mr. Willis: I rise to a point of order. Have not we a rule? I 
am sure we have against a showing of approval or disapproval upon 
this floor. 

The Chairman: I guess there is something like that. 

Mr. Edgerton: I felt a little sensitive as a member of this 
Convention when it was charged that we had plainly violated this 
Constitution that we have met here to frame, or perfect rather. 
I knew it was my intention as declared on the first day of this Con- 
vention that we should not go beyond the Organic Act 'that limited 
the powers of this Convention. When it was declared here that 
we had plainly violated it I felt as if I would like to have the at- 
tention called to the section that we had violated. I admit this. 
The plain intention of the Constitution is that the number of mem- 
bers shall be three times the number of Senators; but I had yet to 
learn the fact there was any provision in the Constitution that 
there are senatorial districts that shall contain three members. 
There is no such provision that my attention has ever been called 
to; there is a provision that if the people of this State next fall 
adopt the Minority Representation and it becomes a part of the 
Constitution then thereafter there are districts that must be so 
formed. But I have no fear that that Minority Representation 
would be adopted. It at least, forms no part of the Constitution 
today. 

Mr. Clough: My attention was called to that several times. 
I thought I was right, correct; and I think I tm. 

Mr. Huntley: As I listened to the learned Judge who spoke 
so feelingly upon this subject, interpreting the meaning of Congress, 
I thought he should have come from school of prophets instead of 
the legal profession. I do not understand how he may stand on 
this floor and interpret to us the meaning of Congress of the language 
which every one has perused the same as he has himself, unless it 
is through some authority like that of the prophets to which I be- 
lieve he makes no claims. 

I did not at first read those words of Congress in this Bill. 
It seems just as plain to me," very differently from what, from his 
interpretation of it, it seems to him. It looks to me clearly that we 
have the power to make regulations and rules, to pass ordinances, 
and what does ordinances mean but law, enactments, decrees, 



IlrxTLEY vs. EDGERTON 347 

and if we come here together under the express authority of Con- 
gress to make decrees, what is that but that we have the power to 
make regulations to carry out all those acts of which we approve 
and which we here decree, and if we are empowered to make rules 
and regulations for the vote on the Constitution and its separate 
articles and if that same bill provides that this Convention may, it 
does not say that it shall but that it may, provide by ordinance for 
the election of State officers ; what does it mean but that we may 
provide by regulations and rules how these said officers shall be 
elected. It is a mystery to me how these legal gentlemen differ 
from one another. We do not intend , and do not cast any 
reflection upon them. I believe the best talent among them have 
taken sides with those who think we have the full authority ; there- 
fore we preachers are not assuming anything when we boast of the 
legal talent on the floor. We think that we intend to urge and do 
urge upon this body that they put this ordinance in that Schedule. 
\\Y have the power and I do not see how any question can arise upon 
it. Why, Sirs, the Committee in the Schedule have done it; they 
presume to do that very thing. They have the power to present it 
and recommend to us and they do it and recommend it. They 
present and recommend that we take the laws of the Territory and 
apply them to the election of State officers. Is there anything in 
the Omnibus Bill that directs that just those shall be slighted in MK h 
rules and regulations:' Where do they find that? Will the gentle- 
man please read the section in which it was found. They insist 
upon that being in there according to authority; very well. Hav- 
ing that authority they have the same authority for incorporating 
the same amendment which we bring; the same precisely. If they 
have the same authority for one they have the authority for the 
other and we insist that this is, as presented, is the belief of this 
body and is their will in regard to this matter. Those who are 
favoring this were taken rather aback this afternoon by the fears 
instilled by the legal friends who first opened this discussion. I 
think surely he ought to have come from the school of prophets, pro- 
nounced the cause which we have here insisted upon as a great 
crime, we propose to deprive somebody of his right to vote, to rejert 
him if he goes to vote that ballot and don't in the f.>nn we preseribi- : 
take away from him the dearest right of the American citizen. I 



348 SOUTH DAKOTA DEBATES, 1889 

could not but admire the facility with which he pictured his fancies 
and imaginings. 

In this amendment this Convention desires to protect and 
secure to the voter his rights, and the passing of such an ordinance 
would most effectually compass that end. What would be the 
effect if a man steps up and presents his ballot and refuses to vote in 
accordance with the rules prescribed? I will tell you what I w r ould 
say: "Mr. Voter, if you don't want to vote in accordance with the 
regulations, you dor\'t have to. There is no law compelling a man 
to vote." What would you do with a wild man who refuses to 
carry out this ordinance? You would tell him, "You don't have 
to vote". Any dunce that would refuse to carry out any ordinance 
that was here prescribed. Suppose Sioux Falls should have two 
Senators, six or seven Representatives, and suppose, at the election 
this fall, they elect five Senators and fifteen or twenty Representa- 
tives, what would you do about it ? Well , Sir, I presume they would 
find some way to legally do it. Whatever way that is, this is the 
way I should put it. If Sioux Falls did not comply with the ordi- 
nance we had in regard to elections they could pronounce our action 
in the one case illegal and void and it might be pronounced void if 
they violated this ordinance if we pass it. I believe we have the 
authority to pass it; I cannot see it otherwise. 

I notice this peculiar fact: Nearly every speaker who has 
opposed this measure, nearly every one of them has said it was 
desirable that we have such protection thrown around the ballot 
box; every one wanted it. Our Legislature wanted it last winter 
and they passed a resolution like it ; it came into the hands of the 
Clerk and everybody wanted it ; somebody wanted it so badly they 
got it away from the Clerk and it never got around anywhere else. 
Well, my friends, we want this just the same as if it had been seen 
and shall we, because some of these lawyers, who is less discreet 
and less talented, oppose some of those ? Other lawyers, who under- 
stand the case better and are intent on doing the right thing shall 
those of us who are not lawyers sit in with the opposers of this 
measure, or shall we take part with those who want the ballot pro- 
tected? I tell you let us pass this ordinance and if Sioux Falls, or 
Huron or any other town, whether they want the capital or not, do 
not obey that ordinance I tell you there will be a way provided 



MINORITY REPRESENTATION 349 

whereby they will suffer and they will wish they had obeyed the 
ordinance. 

My friends, my memory goes back to a. point four years ago 
when the Territory of Dakota elected a legal Constitutional Con- 
vention. That county that the honored President now represents, 
said it would not amount to anything ; they did not need any dele- 
gate. They were not represented here. Well, they could not be 
compelled to be so what happened? They did not come here ; they 
stayed at home and had no part in it ; they never had a vote in pass- 
ing this ordinance. That is what happened to them if they do not 
care enough for this part of the Schedule and Ordinance that we 
pass, should we adopt the amendment, loyally stand by its pro- 
visions, then they will be left out of the election, that is all. Let 
us do our duty, for it is right, and God is for the right. Let us not 
be ashamed. 

I tell you that these lawyers that have been so full of fire 
against this measure will see to it that their votes are not lost when 
they have to. Some gentleman in the lobby, after the afternoon 
session, gentlemen of this town, men of ability, of reputation as 
lawyers ; men interested here in the work and especially interested 
in their solicitude on the capital question, said to me they were both 
in favor of this measure, very much in favor of it. One of them 
was so much in favor of it he told me he was really a crank on this 
subject. Indeed there are here cranks here that turn the wrong 
way ; some left handed cranks. These left-handed cranks that are 
now endeavoring to turn the machine backwards. We want to 
go ahead, no matter whether we are cranks or not, gentlemen. Let 
us do our duty faithfully and the end will justify us. 

Mr. Cooper: I do not think there are many gentlemen on this 
floor this evening but would, if asked the question, declare he was 
in favor of a law of this kind if we have the power to enact it, and 
for the reason the public interests demand it, because of the nature 
of things in this Territory and in every State and Territory in this 
Union. We have been led to believe that there were dishonest 
men; that there are corrupt men; that there were men who would 
disregard the election laws of the coming State, and disregard the 
election laws of every State and Territory in the Union; that they 
were dishonest; that thev were corruptionists; that they were 
sluggers and certainly that thev were thugs. That was the reason 



350 SOUTH DAKOTA DEBATES, 1889 

why I think every gentleman and every individual who has spoken 
upon this question has declared that if he had the right to enact this 
law and regulation of that kind that it would be wise, and just and 
politic thing to do. I believe that every gentleman upon this floor 
is in favor of protection of the ballot; is in favor of a true, pure, 
honest ballot and fair count. But we have acquiredthe information 
from the learned gentleman from Codington County, that none of 
the reasons which have been urged in opposition to the reputation 
of this kind, so we have learned from the learned gentleman but 
that were an insult upon the manhood and womanhood of this 
commonwealth ; that there is nowhere in all this bright land of ours 
anything which savors of purity, anything that savors of honesty, 
and in the meanest language that he could employ. He not only 
assaulted and impugned the motives of every gentleman who spoke 
against this amendment, but even undertook to make an assault 
upon me. I say that if the position that he has taken is true, that 
nothing of the nature of purity and honesty exists among the people 
of this great State. He has proved beyond recall, beyond possibility 
to his own satisfaction I presume, certainly to the satisfaction of 
every gentleman upon this floor, that this amendment is an insult 
upon the manhood and womanhood of South Dakota. I say that if 
any gentleman believes that the position that he has taken is the 
only correct position for that gentleman upon this floor to take. 
But I believe that in the people of South Dakota and no gentleman 
believes more firmly than I do that nowhere upon God's green earth 
are the people more honest, conscientious, more pure in his manhood ; 
and no people higher in this integrity than these are. I say I be- 
lieve there are dishonest men in this State ; I say I believe there are 
corrupt men in this State ; that there is what is known as thugs in 
this State I believe that this is the reason why, Mr. President, and 
gentlemen of this Convention, that an ordinance of this kind, a regu- 
lation of this kind, a law of this kind, should be passed, but there 
is a question back of it. First, have we the right to pass it? I do 
not always believe in the sentiment expressed by one gentleman 
upon this floor; I do not think he will when he stops to analyze 
it ; I do not believe the end always justifies the means ; I do not 
believe that beyond question one wrong thing in order to prevent 
another wrong thing from being done, can always be employed so 
the end justifies the means. 



MR. COOPER'S VIEWS 351 



\ow, as to the matter of disagreement between the lawyers 
among the members of this body, I say there is not a lawyer who 
has spoken upon this subject this afternoon or evening that has 
denied a single gentleman who has spoken upon it. I say there is 
no difference of opinion between the legal gentlemen who have 
spoken upon this proposition ; they all agree that no judge of election 
would have the right to refuse a ballot provided by the laws of the 
Territory of Dakota, a ballot which would be legal under the laws 
of the Territory of Dakota. No judge of e ection would have the 
right to refuse; if he did, by the laws of this Territory, he is guilty 
of a crime. No gentleman who has spoken upon this question 
today has admitted or claimed that in his opinion a ballot which 
would be legal under the laws of this Territory but which would 
not comply with the laws of this amendment, would be an illegal 
ballot ; would invalidate the election. 

But they say, the gentlemen upon the other side, that we are 
in a condition of anarchy without the laws of this Territory. They 
need the law to protect them, because they say you cannot repeal the 
laws or banish the laws. The moment you do that you make it 
an illegal vote. I say that I do not believe that I can conscientiously 
vote for a thing of that kind. I believe in the law. That under 
the laws that a man that casts an illegal vote is guilty of a crime, 
and a judge of election who refuses to accept a legal ballot is guilty 
of a crime. A gentleman here today argues this question saying. 
"No judge or no jury". I cannot quote his language "I do not 
believe any judge of election could be convicted for refusing to 
accept the ballot." I would not say that is correctly quoted, but 
I believe that is the substance of it. I have more faith in the hon- 
esty of the judges and juries of this great Territory than to say that 
they will deliberately break the laws of this coming State. I be- 
lieve that if the law made a certain man guilty of a crime and the 
man that performed that act was placed on trial and it was plainly 
proven that he violated the laws of this Territory I believe that 
the honest manhood of Dakota would say that he should be pun- 
ished. I say I do not believe because we are passing from Ter- 
ritorial condition to statehood, I do not believe that we are in a 
condition of anarchy; I do not believe that we are absolutely with- 
out protection because the Enabling Act provides the laws now in 
existence shall stand and that they shall have full force and effect 



352 SOUTH DAKOTA DEBATES, 1889 

until superceded by future amendments by the Legislature. I 
would vote for an amendment of this kind if I thought we had the 
right to do it ; for that reason I shall cast my vote in the negative. 
I will say again I do not believe that all men in this Territory are 
so pure and undefiled and have kept themselves so unspotted from 
the world that they do not need any laws. I do not believe that. 

Mr. Clough: I rise to a question of privilege. There is no 
man that would rather be laughed at than I would if I make a mis- 
take I am willing to acknowledge it. My eyes are not very sharp. 
I have looked at this Constitution, have read it a score of times and 
have talked about this rule seriously. I acknowledge that I never 
discovered that it was for the adoption of the Minority Report. 
I presume twenty have discussed. I acknowledge my mistake and 
I am glad to be enlightened. I confess that I made a mis-statement, 
when upon the floor before and sincerely beg the pardon of the 
President of this Convention. 

The Chairman: The Chair recommends to this Convention 
to endorse the sentiments that "honest confession is good for the 
soul." (Laughter.) 

Mr. Dickinson: I want, upon the heel of the remark of the 
gentleman from Codington I like to get square arguments, I want, 
w r hile he is upon the subject of Territorial law to call his attention to 
this article which we are considering, Article 7 of the Schedule 
submitted here. The section reads as follows: Section 7. The 
election provided for herein shall be under the provisions of the 
Constitution herewith submitted, and shall be conducted, in all 
respects, as elections are conducted under the general laws of the 
Territory of Dakota, except as herein provided. No mere tech- 
nicalities or informalities, in the manner or form or election, or 
neglect of any officer to perform his duty with regard thereto, 
shall be deemed to vitiate or void the same, it being the true intent 
and object of this ordinance to ascertain and give effect to the true 
will of the people of the State of South Dakota, as expressed by 
their votes at the polls. I want to ask that the gentleman think 
upon that exception and the meaning of it. The Schedule Com- 
mittee voted down this amendment in their meeting, they have 
taken occasion to say. I grant they might call attention to it 
simply to remove any doubts about why that being so, we have no 
right to anything except as herein provided. These articles will 



PREACHERS AND LAWYERS 353 

be submitted but the same will be because the Territorial laws 
shall prevail in this election. We make the same provision ex- 
actly. I know there are minor exceptions here, they are small I 
grant, but that right which they hold to do here with small provisions 
paves the way for larger changes which are clear violations of the 
spirit of the Enabling Act. 

Mr. Stroupe: I would like to speak to a question of privilege 
also, because I do not intend to speak very much of the report 
inasmuch as the Chair has allowed so many gentlemen to speak 
upon the question so often, I will speak for a moment. 

This seems to have been a field day between the preachers 
and lawyers. I confess, although I am not one of the lawyers, the 
lawyers have the best of it. I came here in doubt this afternoon ; I 
I thought that the lawyers could make it clear to my mind as one of 
the fifty jurymen that we had a perfect right to ingraft this amend- 
ment into the Schedule, that I should vote for it because my friend 
from Codington says I am in favor and in sympathy with the spirit 
of this amendment. I want to say that I am ready to place myself 
upon record that I am in favor of Prohibition. No man worked in 
'85 harder than I did for it one year ago last fall for local option. 
I do not except any man. I do not expect any man will work 
any harder for it till next first day of October than I r be he 
preacher or sinner. I say that if there is a person here who will 
make an argument, not an enthusiastic talk, that is not very 
much of a legal argument, let us hear him. . There are those 
who can talk in public of course, we can't blame them for it; 
they have been trained to it; they have been trained to preach, 
talk fire in their pulpits where no man dare, if he had a chance, 
to say anything against it. I want to begin with the first gen- 
tleman that spoke here to-night and say briefly, while his speech 
will do very well as a plea for prohibition it would not satisfy me 
very well as an argument on this proposition; the next gentle- 
man from Day I admire. I want him to come into our county 
before October; I want him to come into our town and talk 
prohibition. Also the minister from Codington, I would like 
to have him come in there, but before he comes I would want him 
to get his speech committed in pretty good order so he won't make 
any bad breaks. I think Day and Beadle counties have to take it 
right and left; I think it is unjust. Mr. Cooper, I think, made one 



354 SOUTH DAKOTA DEBATES, 1889 

of the best arguments that was made upon the floor this after- 
noon and of anyone tonight. I know I do not intend for one 
minute to be discourteous to anyone or reflect upon the motives 
of anyone as one or two speakers have passed, which he chooses 
to say reflect on. 

I am certain that these gentlemen upon reflection will take it 
all back and might publish it even. This is a question of privilege. 
Gentlemen, I will stay here until morning if you want to talk ; but 
my dear preachers if you do talk upon this question whether this 
amendment will be legal, whether we have the right to pass it and 
' not that we would like to have it there. I don't believe that there 
is a man here but what would like to see it a law, but if the lawyers 
say that it cannot be legally passed, then let us do the next best 
thing; be on the safe side and vote according to the Territorial 
laws. This is my plea. 

Mr. Willis: I am a lawyer, 

The Chairman: How do you spell that word? (Laughter). 

Mr. Willis: I have had a course of law since I have been 
here. I might beg to insinuate a suggestion now that the last 
speaker did not stick to his text. I rise to defend nobody and observe 
to remark anything about anybody. I am going to studiously 
aviod any personal suggestions. I mean to say nothing contra y 
if I thought of it. I have done talking mere cold mysteries; it 
would confuse this Convention while confusion is now confounded. 
It now appears to me to begin to seem that certain lawyers of this 
body of long experience are very clear or rather quite clear or con- 
siderable clear, that is about this question of power we have not 
got. But there are certain other lawyers of experience so far as 
I know I have only to make up my mind from observation I have 
had no experience with this, who, upon this question of power, 
decides that we have the power. 

Two hours ago a man whom I judge to be one of the prominent 
lawyers of this city who is now in the lobby, in relation to, this mat- 
ter made this remark that is about the question of this Convention 
having the authority under the Omnibus Bill to prescribe the con- 
ditions of the ballot next October, even to the extent of the adoption 
of this amendment. He had not the shadow of a doubt ; his mind 
was as clear as a bell which is entirely clear; his manner was just 
as confident as it could be ; he was just clear on that point. Many 



STERLING COMES BACK 355 

lawyers disagree as to that subject, whether we have the power, 
this is the only question that is pertinent to be discussed. There 
are many men besides preachers who have given evidence of re- 
dundancy as it is true some preachers have. I am not a preacher; 
I am a lawyer. Well, I guess the citizens of the State to be, will 
weigh you fairly that we may, that this body may procrastinate 
as they will. Let me say that the people of South Dakota know 
their own minds and will weigh us by our actions upon this amend- 
ment. Why, it is very clear to me that there is a difference of 
opinion and that nobody knows exactly just what we ought to 
do. But with the popular pressure upon this point., which we know 
to be behind us, which some of us appear to be conscious of I am 
constrained to say that with this difference of opinion I am thorough- 
ly dissatisfied. I think I was never more dissatisfied in my life. 
I am thoroughly dissatisfied and I am in favor of supporting the 
amendment. I am in favor of the amendment and I want the men 
of this body to know I shall vote for this amendment. I be ieve 
the majority ought to vote for the amendment. 

Mr. Sterling: In the argument of this question I have had 
no thought whatever as far as my duty is concerned about the 
pressure that may be brought to bear from the outside. I consider 
that in questions of this kind that what people should think is the 
last thing that should influence, a lawyer. I think I feel everything 
that recommends the desirability of such an amendment as this, 
perhaps as keenly as anybody , but I do not believe that it influences 
my judgment nor vote upon the question of power. Now, one of 
the arguments that has been adduced here as to the question of 
power has been satisfactory to my mind and I state now that in 
the discussion of this one question I have failed to hear anything 
that has been conclusive in my mind to even raise a doubt as to 
what I stated in my remarks this afternoon. I recognize this, 
that there are certain essential things about every election that 
no rules nor regulations can influence or* set aside. The sul>j ( t 
of the election, the time of the election, the place of the election, are 
all essential ; and as they are fixed by laws we cannot interfere with 
them in any way whatever. The qualification of voters as pre- 
scribed by statutes are things you cannot interfere with. When 
it comes to rules and regulations concerning the conduct of an 
election I think we have the power to make them. 1 * Suppose, 



356 SOUTH DAKOTA DEBATES, 1889 

gentlemen, that there was no election now except upon the Con- 
stitution to be passed and that the Enabling Act had not a single 
word about submitting it to the voters under such rules and regu- 
lations as the Convention, by ordinance, prescribes. I wonder if 
the Convention, then, might not have had the power to make any 
ruler or regulations had the Enabling Act been silent upon that 
subject. I say, if it was given the power to make the Constitution 
this would have carried with it the implied powers to make rules 
and regulations concerning the election by the people upon that 
Constitution. I say that in reference, now to the officers for which 
we may vote at the same time that we vote upon this Constitution 
and the amendments thereto. Remember, the Enabling Act says 
that we may make rules and regulations; it gives us the right in 
explicit terms, to make rules and regulations concerning this Con- 
stitution and the amendments in that same Enabling Act provides 
that at the same election we may vote for the officers necessary 
for a full state government and I say as the lawyers do, that under 
the ordinary rules and constructions of legal compositions and the 
statutory propositions that it follows as implied pow r er that we have 
got the right to make rules and regulations concerning the election 
of officers in that same election. . That we have to make rules and 
regulations concerning the Constitution and the amendments 
thereto. 

This is an implied power; it is not an express power given in 
the terms of the Enabling Act itself. As I said this afternoon, I 
say now without any previous study upon the subject at all that 
the officers of election, themselves, and nobody seems to dispute 
the proposition, may for the preservation of order that extent and 
the purity of the ballot, make certain rules and regulations that 
shall govern the conduct of the election at this or that particular 
polling place. 

The question is, is anybody deprived of the right to cast his 
honest vote? Gentleman, when it comes to irregularity at that 
election the question of principle, it is not even raised, but it comes 
back to this: Has there been a fair and honest election? Have 
the electors had the right and been given the opoprtunity to cast 
a ballot at that particular election, and if so then the irregularities 
will not vitiate the election. That is the rule. What, does this 
amendment propose anything that disfranchises a man? Dis- 
franchising! Listen, you gentlemen that harped upon that this 



STERLING CONTINUES 357 



afternoon, instead of disfranchisement, taking it all in all, it is 
an invitation instead of a disfranchisement, an invitation for them 
to go to the polls and vote as every man chooses to vote. That 
is what it is. And if there is anything that will make a man feel his 
independence as a voter, it is that he may be apart as this amend- 
ment provides, from the persuasive eloquence, unscrupuluos inter- 
ference of another when making or fixing his ballot. Entirely 
away from any outside influence. It secures, the entire intent and 
object of it is, to secure the entire independence of the voter. Dis- 
franchising! When according to this amendment, he is provided 
\vith a ballot containing the name of every man who has been 
nominated by the party or by the wishes of a number of men out- 
side of the party, in the county, in the legislative, and in the judicial 
district in which the man and the officer resides ; he is furnished with 
that kind of a ballot, is there anything else about it. Why, he is 
not limited to the names upon it. Aside from where anyone can 
see him or intimidate him or persuade him ; he can write any other 
name in there ; he can place upon it any other name than that in- 
dicated in the ballot itself. Gentlemen, the more I think of this 
question and weigh it in all its bearings, it leads me in the belief, 
the more I think about it, the more I am convinced that this is a 
reasonable rule and regulation which we have the right to enforce. 
Enforce I say, and I do not use those words without some thught 
as to what they mean. I say this: I do not know that it would be 
ever resisted; I am inclined to think that it would not, but if the 
precinct entirely refuse to adopt the system I would believe this, 
that it would be no violation that the entire vot_ might be thrown 
out. I am not prepared to say that it would be done and that I 
would sanction any such thing should it be done. What might 
be the result, so far as our admission is concern d ; so far as any ac- 
tion that President Harrison might take, is concerned, I would go 
to him with perfect confidence with the statement that this amend- 
ment had been put into the Schedule and Ordinance and that the 
voters had been required to comply with that and not voting in 
compliance with it, their vote was cast out. What would be the 
result ? That amendment deprive you of your suffrage, that amend- 
ment deprive you of the right to exercise your right as an Ameru an 
voter and freeman, an amendment like that which allows y. u 
to go apart by yourself in an apartment in the polling place and there 
vote as you choose, that amendment which was designed to 



358 SOUTH DAKOTA DEBATES, 1889 

secure the purity of the ballot box, does that deprive you of your 
vote in this or that particular precinct? I say, gentlemen, when 
there is this attempt to secure purity at the election, done manfully 
and carefully, taking into consideration the question that we had 
.that to decide in this election, that no jot or title of our right to be 
admitted will be effected by our adding this amendment to the 
Schedule and Ordinance requiring that it be one of the conditions 
of the election next October. 

Mr. Davies: I ask the indulgence of this Convention for one 
moment to discuss the question a little. We are met this evening 
to settle one point ; this Convention recognizes that to be a legal 
point and as one of the large majority of the members present I look 
to the legal fraternity to settle this question. There is no doubt 
but what the majority of the members here desires to carry this 
through if the way is clear for this Convention to do so. This is not 
a Convention of the ministers and preachers here. I believe it is 
equally dear to every attorney in this room and for that very reason 
I cannot conscientiously allow this 'Convention to close without 
putting my voice as attorney in favor of this amendment. I will 
say, gentlemen of this Convention, you who are not lawyers, that 
you have no business to expect two lawyers to agree on anything. 
When we, every one of us, have talked about this subject, when we 
s'tting here have heard the presentation of the views of the dif- 
ferent members, when you have talked over all those that you 
deem to be law and argument and reason, then bring your own 
common sense of duty and of right and when you come to vote on 
this, you have the power here to say that this shall be. There are 
not attorneys enough on this floor to make a show. I undertake 
to say that at least half of the lawyers in this room are in favor of 
this amendment. Now, come right back to the question. 

This afternoon some questions were asked. I do not know 
but what I had better answer a few of them right here. 

Suppose a man wishes to vote according to the old methods, 
after the new method has been introduced. What would be the 
result? The men authorized, ordained if you please, by the Con- 
gress of the United States to this Convention, those men ordained 
to attend to that matter, will attend to it. How? Just like this: 
Just as your little slip tells you, he must come and deposit his ballot 
in secret and if he does not prefer to do that he has not got to do 
that but his vote will not be counted. Suppose he goes to law about 



MR. DAVIES SPEAKS 359 



it ; let him go. Will that vitiate this election ? The very fact that 
the man said, I will not submit to the majority and will vote, that 
I will insist about voting my way and go to law about it ; will that 
vitiate the result of the election? Is there a lawyer here tonight 
that will say for one moment that this matter has anything what- 
ever to do with it? Talk about this "I won't do it". I was asked 
by my wife where I was going to preach next Sunday. Yes, that's 
a fact. Now, I can' t say today that I intend to lie out of it. 
The highest tribunal in this land, the legislative tribunal, the Con- 
gress of the United States not the Constitution of Dakota but the 
Congress of the United States through the Enabling Act, has pro- 
vided that elections will be held next October in this Territory. 
It is provided that certain things shall come up for submission to 
the people when it is also provided that this Convention shall pre- 
pare itself for admission, so far the Constitution of Dakota has 
nothing to do with it. The laws of 'the Territory of Dakota, only 
as far as they relate to the general subject, has nothing to do with 
the particular method of how we shall vote. Whether there shall 
be one judge or two judges. The present law existing in the Ter- 
ritory of Dakota has nothing for general and special elections pro- 
vided for, has nothing to do with this, because this is a special elec- 
tion organized by Congress of the United States, and that same 
authority has vested in us, power to prepare all the ways, the means 
of doing this. I think this word "ordinance" misleads some of us. 
When I was a little boy, about so high (indicating about three feet) 
my teacher used to put me through elocutionary and elocutionary 
drill. I remember it ran something like this: "They did not leg- 
islate, they did not enact, they ordained that the people of the 
United States shall be free." The Congress of this United States 
has permitted us to ordain that we shall have a clear, pure election. 
For one, I shall vote for this amendment. 

Mr. Williams: I find one objection to this section as it stands. 
I believe that with that word out and two other words substituted 
that objection will be obviated. These words are these. I find 
that this ordinance does attempt to legislate ; it attempts to repeal 
certain of the laws of the Territory of Dakota. Now, for one, I 
want to get right on that. Section 7 reads: "The election pro- 
vided for herein shall be under the provisions of the Constitution 
herewith submitted and shall be conducted in all respects as t-Uv- 
tions are conducted under the general laws of the Territory of 



360 SOUTH DAKOTA DEBATES, 1889 

Dakota, except as herein provided." That word "except"; I 
think we had better change that. Why? For this reason; this 
section says that this election shall be according to the laws of the 
Territory of Dakota EXCEPT as herein provided. Let us change 
that and instead of the words "Except as herein provided", not 
repeal any law, but allow the law to stand and then add these words 
"and regulate it." 

Mr. Fellows: I desire to submit one or two thoughts in con- 
nection with this very important question before the Convention. 
I will say right here that I shall not attempt any flights of oratory. 
I won't soar very far from the issue that is before the Convention. 
The question is one of such vital importance that it should receive 
the careful consideration and unbiased consideration of every del- 
egate here. The question whether we are exceeding, in passing the 
amendment that is proposed, the power that is vested in this Con- 
vention is one of much importance. Upon it depend out perpetuity 
and usefulness as a Convention. I have no doubt that nearly 
every delegate in the Convention would be in favor of that amend- 
ment if, in his judgment it was proper and was within the power of 
this Convention to pass it; therefore I shall address the remarks 
that I make solely to that question of the power of this Convention. 

In the first place, it is conceded here by everybody those who 
favor the amendment and those who oppose it that the only power 
which the Convention has is the limited powers which the Omnibus 
Bill gives us. This Convention sits here without plenary power, but 
such power as is given by Congress. If this Convention has the 
power given it by the Omnibus Bill to make laws, provide laws and 
enforce these laws, then it has the power to do just what we are 
attempting to do here in this provision. But, if on the other hand 
there is any question, I say any tangible question, if the standing it 
has got is subject to strict construction, if there is any question 
of its giving the power to this Convention to become a legislative 
body, to be a law-making body, to be a law-passing body, then 
certainly this amendment can be passed and should be passed. 

Now, we will have an election next October; the laws which 
have, by the provisions of this act and by the Constitution will be, 
at that time in full force and operation; and the election laws of 
this Territory will be in operation in every city and town and hamlet 
in this State of Dakota, or this will be at that time the Territory 
of Dakota, they will be at that time the Territory of Dakota, 



MR. FELLOWS 361 



they will be in full force and operation as they are in force by the 
courts. Now then, can you, acting here under the authority that 
is given you by this Omnibus Bill, under the limited authority that 
you obtain here, together in this Convention, do anything that will 
overthrow the force of those laws ? That is the question confronting 
this Convention ; because if you can do something that will repeal 
them by express enactment or implication, certainly these laws 
will be in full force and effect. What will these judges of election 
do on that day? They will have to sign a solemn oath, they will 
have to act under the laws of the Territory that are in force. The 
first thing that a man does before he commences to act as Judge 
of election, he has to swear that he will, to the best of his under- 
standing and ability, perform the duites of his office in accordance 
to the law. In accordance to what law? According to the law 
of the Territory of Dakota, that is in force. 

You attempt to say here in this ordinance that a man shall not 
observe the oath that he has taken; you attempt to say here that 
he shall not follow the laws of the Territory of Dakota that he has 
sworn he will follow ; that he will not administer the laws of this 
Territory that he has sworn he will administer. You are changing 
all that. You provide entirely different methods; you are making 
a provision here in this act, I call your attention to it gentlemen, 
and it is this: That in regard to marking the tickets that he will 
cast out the ballots that are not marked in a particular way. I 
tel' you, under the laws of this Territory that are in force and will 
be in force on that day that the judges of election cannot legally 
no anything of that kind. I make the application personally 
myself, I go up to the polls on election day with a ticket that ex- 
presses just what I want expressed there. It is in conformity with 
this Schedule and Ordinance except that it does not conform with 
this amendment. Suppose they refuse to accept my vote? What 
justification has he to show? Suppose we follow it a little further. 
I commence action against him for judgrrent for c^irrgo. He has 
set up the justification and defense. What is the justification and 
defence going to be? Suppose we carry it further; suppose the 
judges of the election presented and filed a large number of ballots 
cast there in accordance to the ordinance you are attempting to 
pass here that are not in exact conformity to it. Must they be 
thrown out in conformity with that section of the amendment? 
What is the effect of that upon the election? Have those judges 



362 SOUTH DAKOTA DEBATES, 1889 

of election the right to discard the votes that perhaps were placed 
there in the ballot box, that expressed their will and intention 
without any defense of that kind. 

Now, I do not believe there is anything of that kind. I am 
in favor of purity in election ; I would like to see all the safeguards 
thrown around the polls that can be thrown around them. I do 
not believe there is any such burning necessity existing at this 
time to take the chances of this experiment we are taking here if 
we adopt the amendment of this kind. For, the question of power is 
in doubt, if there is a question of power at all and there is at least 
a question in the minds of this Convention here if there is a question 
in regard to this "can we, friends, considering the importance of 
this election, considering the fact that statehood, perhaps, of South 
Dakota depends upon the solution of this question. Can we afford 
to take any chances, to say that we will take this procedure when 
there is doubt as to its being the right course; when by taking the 
course that has been pursued in this Territory year after year to 
the general satisfaction of this people." We are standing upon 
grounds that are perfectly safe and solid with no question about the 
result of this. 

(Calls of "Question, question" from different parts of the room.) 

Mr. Huntley: I want to ask the gentleman how he reads the 
first sentence in that article to which this amendment is offered, 
that the election provided for herein shall be conducted in all re- 
spects as elections are conducted under the general laws of the Ter- 
ritory of Dakota, Article 7' The Committe whose report this 
amendment is made to, this Committee have assumed that they 
had authority to dictate. 

Mr. Hole: I suggest that the gentleman should not answer 
his own question. That question was asked awhile ago; I do not 
wish to enter into this discussion ; I would answer that question be- 
cause it has not been answered. This question has been before the 
Committee and has had considerable attention. We are free to say 
that where there was any possible doubt we have taken the safe 
side, deeming it the best course to pursue. 

Mr. Lee: I will not detain this Convention long. I wish to 
suggest that there is a moral side and a legal side to all questions. I 
have a mortgage on my neighbor's cow, their only cow. On the 
legal side I could go and foreclose that mortgage and take that cow. 
Perhaps it is the only cow of a widow with little children. When I 



FATHER LEE POURS OIL 363 

take the cow away they have got scarcely nothing else to live upon. 
Such an action outrages the moral side of the question. I believe 
my constituency are mostly of excellent morals and good men. 
The majority of the voters are in favor of this amendment and 
all taxpayers are. We are about to cast the greatest vote ever 
cast. And more men will show up then any other time that we 
will ever have seen in South Dakota. I have to stand here for the 
lawyers and for the preachers. I was made a lawyer in 1857, a 
preacher in 1860. The lawyer part of me is a little older than the 
preacher. I tell you because I want the farmers that own the real 
soil, and the merchant and the men who pay the taxes to have the 
right to say how this thing shall be. I want them to cast the vote 
that will carry. I do not want the dead beat and dude and loafer 
and that beautiful class to be shipped in here and boarded until 
after election. They have got men who will come here rom Iowa, 
Nebraska, Minnesota and from Canada, that if you will pay their 
board until they have stayed long enough to vote they will come in 
hoards. We want to make them pay taxes before they vote. The 
old pioneers that came here and lived and fought and got their 
farms and families and children and their business and trade and 
profession, who ought to run this government. I say this is right. 
It is just and it will do no harm. In my town, but a few days ago, 
there were four farmers about four miles from town. Well, I went 
out and got them to vote ; but you do not have any trouble to get 
them out to vote and vote in the city and double our taxes. Men 
who do not own a foot of land, but they are voters and they out-v< >te 
us in the city and double up our taxes before we know anything 
about it. I tell you, all my life time, this idea has been growing 
with my years that there should be a change in our election laws. 
I have been judge of election in my time; I have said "We won't 
allow you to come into this voting room at all ; stand outside and 
put your vote in through the window." They had to do it and 
I did not hear of any man being disfranchised either. These cir- 
cumstances alter cases. I tell you I am going to vote for this 
amendment. This is the preacher side of me. I believe it is right. 
Now, in regard to the lawyer side I have some little doubts 
but they are not very strong. I believe it will be tried in less than 
ten years in every state in the Union. I believe the time in our 
history as a Territory is ripe for this trial now. In standing before 
a jury defending a man charged with crime, I say: "Gentlemen of 



364 SOUTH DAKOTA DEBATES, 1889 

the jury, if you have any reasonable doubts that my client com- 
mitted this crime, you will have cause to clear him. You had better 
let a thousand crimes go unpunished than kill an innocent man. 
That is law; I shall give this amendment the benefit of the doubt 
and vote for it in this Convention. 

Mr. Corson: I do not desire to take the time of this Convention 
to discuss the various phases of this subject that have been touched 
upon in this debate. But one thing seems to me Mr. President, is 
very apparent, and that is, that there is a safe course in this matter 
which can be pursued and a course that can be pursued that is not 
so safe. It would seem from the discussion this afternoon that there 
is grave doubts about the right of the Convention to pass this 
amendment; to make changes in the law applicable to this election 
the ensuing fall. Now, like the gentleman from Spink, Mr. Presi- 
dent, I have been here in the Territory of Dakota for many years. 
I have worked hard and long for statehood. I do not feel, Sir, like 
endangering that at this time by passing this amendment and 
placing upon this election some restrictions about which there is 
grave doubts as it seems to me that at this time we can ill afford to 
do that. This is a matter of grave importance; this matter of 
this election and the returns, etc. are to go before the President 
of the United States and if it should, in his opinion, turn out that 
this was an illegal amendment and the provisions of it were illegal 
then, there would have been no election of this Constitution and 
the whole thing would fall to the ground and we would commence 
new again. I ask, gentlemen, if we can afford to, at this time, 
take never so remote a chance of a disasterous termination of our 
hopes. 

I have lived in Dakota twelve years and I have never seen such 
a state of corruption in regard to voting as has been proclaimed here. 
I hear that we have the finest population of the American educa- 
tion that there is in the world ; that we have forty thousand farmers, 
intelligent, honest and independent. I know we have ten thousand 
miners that are equally intelligent and equally honest ; I know we 
have twenty to thirty thousand mechanics that are honest and 
disposed to go to the election places and exercise their right gravely 
and like honorable men. I do not know where these men are that 
are so corrupt. I believe nobody intentionally would do such a 
thing, but I do believe the fair fame of Dakota has been slandered 



JUDGE GORSOX ox ELECTION'S 365 

this afternoon by having it appear that there is set corruption in 
our elections in Dakota. 

I believe it is doing an injustice to her people to assume to pre- 
sume that there was such election frauds practiced in our Territorial 
elections. Our laws and penalties are very severe in connection 
with our election laws as it now stands. I understand it is con- 
ceded by all parties that they can be enforced and will be enforced 
next fall ; while there is no power to enforce the provisions of this 
amendment. I express no opinion one way or the other; I simp'y 
say this: That there is sufficient doubt about the matter, and 
there is sufficient doubt about the result that might ensue that 
makes it a part of wisdom to pause here on the threshold and see 
whether we had not better forego the matter of this amendment 
and take the absolutely safe course; take a course about which we 
will have no doubts from this time until we are a State. Hence, 
Mr. President, I shall vote against this amendment and as it has 
been said and perhaps repeated very often, I presume, there is no 
gentleman here that is not in favor of a good election law ; not in 
favor of having, thrown around the election all the safe-guards pos- 
sible, but as has been said here, we are not a legislative body, this 
is a matter for another body to consider. 

Let us then pursue the course that is marked out for us; that 
is a safe course, and not venture upon any experiments of this 1 ind ; 
it might be a costly experiment for us to make. 

Mr. Peck: I do not propose to take any length of time, but 
simply to refute a few statements that have been made. I agreed 
in the first place to explain but a few remarks that I thought was 
misunderstood. In the first place I am one of those who came in 
here to be told by the lawyers just exactly what my duties are. I 
have read and practiced law enough to satisfy myself that I cannot 
understand law to my own satisfaction. I came here after giving 
the Omnibus Bill my full consideration to satisfy myself as to the 
fact of our right. I have no doubt at all or any question but what 
we have got to make the rules and regulations and ordinances 
whether you could adopt the Territorial law or other law, to control 
the coming election. One of the two we have got to do. 

I think there is a mistaken idea that if we adopt nothing that 
the Territorial law will govern the first election. I do not believe 
that there will be any law at all if we. do so. For that, only as we pro- 
vide one for this election. I believe that the Committee thoroughly 



366 SOUTH DAKOTA DEBATES, 1889 

understood that ; that they thought that we have got to get it into 
the ordinance to have a law and that they adopted the election law 
of the Territory. 

Now, what must we seek to do with these few rules? Just 
enough to cover two things. I do not want any election law that 
is foul, fraud and besmirched with unbecoming procedure that has 
been practiced for a long time. That is fraudulent in the printing 
of ballots. 

We simply provide first, for what? We simply deal with two 
things. We provide first for the printing of ballots by authority 
and in order to do that we have got to have a common and general 
method of nominating Second, to provide for certain machinery 
to deliver these ballots, first to the persons who have the right to 
go with them unmolested and put them into the ballot box. If 
this is any infringment upon any person's rights I fail to see it. 
I have studied very carefully the Australian election laws. I fay 
there can be no distortion of this thing into an infringment of any 
person's rights. Having arrived at that conclusion that we have 
the right, without doubt, to pass thjs law the next question was 
as to its expediency. My own opinion is, that we should retain the 
old law as far as we could and get an ordinance to free and purify 
the ballot. The real 'simple phases of all the election laws of Dakota 
shall govern this election except just simply as to the printing of 
the ballots by authurity and stopping fraud and abuse to the ballot 
system of distributing and handing them to the several perrons as 
I said before, who are entitled to receive these ballots and protect 
the voter in the exercise of his rights. 

Mr. VanBuskirk: If we may legislate to the extent as provided 
by the rules and regulations advanced by this amendment, may not 
we make that penal ? If a man evades the provisions of this amend- 
ment it must follow if we may pass such a regulation as contemp'ated 
by this amendment may not we make it penal if a man violates the 
provisions of this amendment? I simply say that there are severe 
penalties under Territorial laws that require that we protect these 
rules. 

The Chairman: The question before the Convention is Section 
7 of the report of the Committee on Schedule and Ordinance. To 
that the gentleman from Hamlin moves this amendment. 
Mr. Peck: He seeks to amend Section 7. 



ELECTION REGULATIONS 367 

The Chairman: Section 7 is before the Convention. He asks 
to amend Section 7. 

Mr. Williams: We have not moved the adoption of Section 7. 
The Chairman : Section 7 of the report of the Committee on 
Schedule and Ordinance is before the Convention and to that the gen- 
tleman from Hamlin moves that the following be attached as 
amendment to Section 7. 

RULES REGULATING THE ELECTION TO BE HELD UNDER THE AU- 
THORITY OF THE ENABLING ACT FOR THE ADOPTION OR REJEC- 
TION OF THE CONSTITUTION AND THE ARTICLES SEPARATELY 
SUBMITTED THEREWITH AND THE REPRESENTATIVES IN CON- 
GRESS ; ALSO STATE AND JUDICIAL OFFICERS FOR SOUTH DAKOTA. 
SECTION 1. That at the election to be held on the first day of 
October, 1889, the election laws now in force in the Territory of 
Dakota shall apply to and govern such election except as herein- 
after specially provided. 

SEC. 2. Nominations for State officers, Representatives in 
Congress and Judges of the Supreme Court shall be made by any 
State convention and certified to by the Chairman and Secretary 
of such convention, according to form number one (1) hereinafter 
provided, or by any three hundred 1300) legal voters in South Da- 
kota attaching their names to a paper nominating candidates and 
filing the same with the Territorial Secretary. 

SEC. 3. Nominations for members of the State Legislature, 
Judges of the Circuit Court and Judges of the County Courts, shall 
be made by any convention held in legislative and judicial districts 
or county for which any su'ch officer is to" be elected, and certified 
to by the Chairman and Secretary, according to form No. 2 herein- 
after prescribed, or by any one hundred legal voters of any legisla- 
tive of judicial district or county, by attaching their names to a 
paper nominating such officers, and filing the same with the county 
Clerk or County Auditor to which such nominations refer. 

SEC. 4. All certificates of nominations and nominating papers 
provided for in Sec. Two (2) shall be filed with the Territorial Secre- 
tary by the fifteenth day of September, and all those provided for 
in Section Three (3) shall be filed with the County Clerk or County 
Auditor by the twentieth day of September, 1889, and no certificate 
of nomination or nominating papers shall be acted upon, except 
accompanied with the consent in writing of the person or persons 
therein nominated, provided that in case of death or resignation, 
the authority making such nomination shall be permitted to fill 
such vacancy by a new nomination. 

SEC. 5. The Territorial Secretary, on the receipt by him of 
the nominating papers lu-ivinhrt'orc mentioned, shall forthwith 
transmit true copies of the same to the County Clerks or County 
Auditors of the several counties in South Dakota. 



368 SOUTH DAKOTA DEBATES, 1889 

SEC. 6. The County Clerk or County Auditor shall, after the 
expiration of the time for receiving the nominating papers, forth- 
with cause to be printed such a number of ballot papers as will be 
sufficient for the purpose of the election, and the number necessary 
for each polling place shall be bound or stitched in a book of con- 
venient form, and the County Clerk or County Auditor shall cause 
to be printed in English, in large type, on cards, instructions for the 
guidance of voters, in preparing their ballot paper; such Clerk or 
Auditor shall furnish ten (10) copies of such instructions to the 
Judges of each election, precinct, and said Judges shall cause them 
to be posted both inside and outside of the polling place, and said 
County Clerk or County Auditor shall, as provided by law, cause to 
be delivered to the proper Judges of election the ballot box and all 
poll books and returns now by law required or by this ordinance 
required to conduct and complete the election, also the ballot papers, 
at least two (2) days before polling the vote; and shall cause to be 
published in each newspaper in the county a true copy of the ballot 
paper and card of instructions, said publication to be in the last 
issue of said papers before the day of voting. 

SEC. 7. Every ballot paper shall contain the names of all 
candidates for Representatives in Congress, State, and Judicial 
officers, and members of the Legislature, and the name of the politi- 
cal party to which each candidate belongs ; also the form of the bal- 
lot for the adoption or rejection of the Constitution and the articles 
separately submitted therewith, as provided in this ordinance. 

SEC. 8. Each polling place shall be furnished with a sufficient 
number of compartments, in which the voter, screened from obser- 
vation, shall mark his ballot paper, and a guard rail so constructed 
that only persons within the rail can approach within ten (10) feet 
of the ballot box, and it shall be the duty of judges of election in 
each polling place to see that a sufficient number of such places be 
provided and shall appoint a person to guard the entrance to such 
compartments and he shall be paid the same as Judges of election. 

SEC. 9. The voters admitted one at a time for each compart- 
ment where the poll is held shall declare his name, and when per- 
mitted by the Judges to vote his name shall be entered on the 
voter's list, and he shall receive from one of the Judges of election 
a ballot paper on the back of which initials of one of the Judges of 
election shall be so placed that when the ballot paper is folded they 
can be seen without opening it, and the Judges of election shall 
instruct him how to mark his ballot paper. 

SEC. 10. The voter, on receiving his ballot paper, shall forth- 
with proceed to one of the compartments of the polling station and 
there without undue delay, not exceeding five minutes, mark his 
ballot paper by putting a cross (X) in the space to the right-hand 
side of the name of the person for whom he desires to vote and if 
he desires to vote for any person whose name is not on his ballot 
paper he may write or paste on his ballot paper the name of the 



ELECTION REGULATIONS 369 

person for whom he desires to vote, and shall theu fold up his bal- 
lot paper so that the initials on the back can be seen without open- 
ing, and hand it to one of the Judges who shall, without open- 
ing it, ascertain that the initials are on it and that it is the 
same ballot paper given to the voter, and shall then place it in 
the ballot box and the voter shall quit the polling compartment 
as soon as his ballot paper has been put in the ballot box. 

SEC. 11. The Judges of election on application of any voter 
who is unable to vote in the manner provided, shall assist such other 
by marking his ballot paper in the manner desired by such voter 
in the presence of the persons permitted to be in the compartment 
occupied by the Judges and no others, and shall place such ballot 
paper in the ballot box. and when judges of election shall not under- 
stand the language spoken by the voter claiming to vote, they shall 
swear an interpreter, who shall be the means of communication be- 
tween them and the voter with reference to all matters required to 
enable such voter to vote. 

SEC. 12. A voter who has inadvertently dealt with the ballot 
paper given him in such manner that it cannot be conveniently 
used, may, on delivering the same to the Judges, obtain another 
ballot paper in place of that delivered up. 

SEC. 13. Any voter refusing to take the oath or affirmation of 
qualification as required by law, when requested to do so, shall not 
receive a ballot paper, or be permittted to vote. 

SEC. 14. No person shall be allowed to take his ballot paper 
out of the polling place, nor, except as in the case provided for by 
Section Eleven (11), to show it when marked to any person so as 
to allow the name of the candidate for whom he has voted to be 
known, and any voter who violates or refuses to comply with this 
ordinance shall not be permitted to vote. 

SEC. IS. In addition to the Judges and Clerks of election, one 
Watcher at each polling precinct for each political party present- 
ing a candidate or candidates for the suffrage of the voters and no 
others shall be permitted to be in the compartment cccupied by the 
Judges, Clerks and Watcher shall, before entering upon their re- 
spective duties take and subscribe to the following oath or affir- 
mation: 

I, John Jones, do solemnly swear (or affirm) that I will keep 
secret all the names of the candidates for whom any voter may have 
marked his ballot paper in my presence at this election, so help me 
God. 

SIC.XED: J. J. 

Sworn (or affirmed) before me at this. 

first day or October, 1889. 

Justice of the Peace or Judge f Election. 

SEC. 16. Immediately on the close of the poll the Judges in 
the presence of the Clerks -if election and such of tin- watchers and 



370 SOUTH DAKOTA DEBATES, 1889 

voters as desire to be present, shall open the ballot box and proceed 
to count the number of votes for each candidate; in doing so.they 
shall reject all ballot papers which have not been supplied by them 
as Judges of said election, all ballots by which more candidates have 
been voted for than there are officers to be elected ; also those upon 
which there are any writing or mark by which the voter can be 
identified; all the ballots voted and counted, and those rejected, 
those spoiled and those unused, shall be put into separate envelopes, 
and all these parcels shall be endorsed so as to indicate their con- 
tents, and be placed in the ballot box and a return of the result of the 
election at the polling precinct shall be made to the County Clerk 
or County Auditor, as now required by law for the election of mem- 
bers of the Territorial Legislature. 

SEC. 1 7 . All expenses incurred under these rules to b.e a charge 
against the county and audited and paid as other claims against the 
county. 

The Chairman: Is the Convention ready for the question? 

Calls of question from different portions of the house. 

The Chairman: Gentlemen as your names are called, those 
favoring the adding of this proposed amendment to Section 7 of 
the report of the Committee on Schedule and Ordinance will answer 
yes ; and those opposed will answer no. 

AYES Messers. Anderson, Atkinson, Berdahl, Clough, Davies, 
Dickinson, Downing, Eddy, Gifford, Goddard, Hall, Hartley, 
Huntly, Lee, Matson, Murphy, Peck, Ramsey, Spooner, Sterling, 
Wescott, Wheeler, Willis, Williams, Williamson, Wood of Spink, 
Young. (27). 

NOES Messrs. Boucher, Buechler, Coats, Cook, Cooper, Corson, 
Couchman, Craig, Diefendorf, Edgerton of Yankton, Fellows, 
Fowles, Henninger, Hole, Houlton, Humphrey, Jolley, Kimball, 
Lyons, McFarland, O'Brien, Ringsrud, Scollard, Sherwood, Stod- 
dard, Smith, Stroupe, Thompson, Van Buskirk, Van Eps, Van 
Tassel, Whitlock, Zitka, Mr. President. (34). 

The Chairman: There are twenty-seven (27) ayes and thirty- 
four (34) noes, so the amendment is lost. 

Mr. Williams: I move to amend Section 7 by striking out 
the word "except" where the same occurs in the fourth line of said 
section and insert in lieu thereof the words "and Rules and Regu- 
lations". 

This motion did not receive a second. 

Mr. Hartley: I move that Section 7 be adopted. 

Mr. Humphrey: I move that the word "annul" be substituted 
for the word "avoid" where it occurs in Section 7. 

Motion received a second. 



SCHEDULE 371 



The Chairman : The gentleman from Faulk moves to substitute 
the word "annul" in line seven for the word "avoid". 

Those favoring the motion will say aye; the noes appear to 
have it; the noes have it. The question before the Convention is 
upon Section 7. 

The Chairman: Those of the opinion that the motion to adopt 
Section Seven of the report of the Committee on Schedule and 
Ordinance prevail say aye; those of the contrary opinion say no. 
The ayes have it. Section 7 is adopted. 

Mr. Williams: As it is a manifestation of the members of 
this Convention to leave no doubt as to the rules, I move that fur- 
ther consideration of this report be postponed until Thursday 
of next week. 

Motion received a second. 

The Chairman: It is moved and seconded that further con- 
sideration of this report be postponed until next week, Thursday. 
Are you ready for the question? 

Mr. Hole: Gentlemen; I trust you will not take that action 
at the present time as this report has been in your hands now 
twelve hours and here will not be a time in the history of this Con- 
vention when we have so full a representation of the delegation 
as we now have. A large number of those here tonight intend to 
leave tomorrow morning. I think that I will offer a substitute to 
the gentleman's motion that we adopt the balance of the report 
of the Committee on Schedule and Ordinance. 

This motion received a second. 

The Chairman: The gentleman from Beadle moves as an 
amendment that the Convention do now adopt the remainder of 
the report of the Committee on Schedule and Ordinance. Are 
you ready for the question? 

Mr. Williams: I would move an amendment to that amend- 
ment that Section 19 of the report be amended so as to read as 
follows: "The officers provided for in this ordinance, to be elected 
on October 1st, A. D., 1889, shall continue to hold and exercise 
the duties of their respective offices until their respective suc- 
cessors are elected and qualified under and by virtue of this Con- 
stitution and laws passed in pursuance thereto. 

The Chairman: A motion was made to postpone further con- 
sideration of this report until next Thursday; an amendment was 
offered that the balance of the report be adopted. Now an amend- 



372 SOUTH DAKOTA DEBATES, 1889 

ment was made to the amendment that Section 19 be amended, 
striking out Section 19 as it appears and inserting in lieu thereof 
the words : ' 'The officers provided for in this ordinance to be elected 
October first, A. D., 1889, shall continue to hold and exercise the 
duties of their respective offices until their respective successors 
are elected and qualified under and by virtue of this Constitution 
and laws passed in pursuance thereto." 

Mr. Williams: In drawing this hastily and stating my motion 
I have not yet presented what I mean ; that is to substitute for the 
first section that part of the section that designates officers is not 
to be touched, that is what I mean to say. It will only be the 
first paragraph ; it will end at the word "follows". I want to strike 
that part of it out. 

Mr. Hole: I will say that that matter has been extensively 
discussed by the Committee and that we have heard the various 
arguments on that and that they come to a unanimous conclusion 
that that would not do to pass it. 

Section 7 provides that this election is under this Constitution. 

Mr. Williams: I dislike very much to worry this Convention, 
but I cannot let that pass without raising this objection and if I 
have not expressed all that I intended in offering it, it w r ill come now 
in what I want to say. I want to read that section which provides 
the tenure of office of all officers. "The tenure of all officers, whose 
election is provided for in this Schedule, on the first day of October, 
A. D., 1'889, shall be as follows: 

The Governor, Lieutenant Governor, Secretary of State, Audi- 
tor, Treasurer, Attorney General, Superintendent of Public In- 
struction, Commissioner of School and Public Lands, Judges of 
the County Courts, shall hold their respective offices until the fint 
Tuesday after the first Monday in Januray, A. D., 1892, at twelve 
o'clock M., and until their successors are elected and qualified." 

"The Judges of the Supreme Court and Circuit Courts, shall 
hold their offices until the first Tuesday after the first Monday in 
January, A. D. 1894, at twelve o'clock M., and until their &uc- 
c^ssors are elected and qualified; subject to the provisions of Sec- 
tion 26, of Article V, of the Constitution." Now, to make my ob- 
jection known I will next read the last paragraph and my objection 
to that is this; that this Convention, by ordinance attempts to 
prescribe the tenure of the officers provided for in this Constitution. 

"The terms of office of the members of the Legislature, elected 



TENURE OF OFFICE 373 

at the first election held under the provisions of this Constitution, 
shall expire on the first Tuesday, after the first Monday in January, 
one thousand eight hundred and ninety-two. (1892)". 

This does not prescribe the term of office of those to be elected 
in October 1889; but instead of describing the tenure of office of 
the officers elected in 1889 it prescribes the term of office of the 
first officers elected under the Constitution. It cannot be earlier 
than 1890 unless the Legislature prescribes. I further say that in 
prescribing that these officers mentioned in the second paragraph 
shall hold until the first Monday in January, 1892. It extends the 
term of office of these officers to be elected at the election the first 
of October beyond the time prescribed by the Constitution ; extends 
the term of the member of the Supreme Court and County Court, 
extends the time of their office till January 1894. I take it that 
it is in direct opposition and contrary to the purposes of this Con- 
vention by ordinance prescribed. That is the business of the Con- 
vention to prescribe the term of office of the officers elected in this 
election in 1889 and no other, and that they cannot fill the pre- 
scribed term of their office for any other election a long length of 
time, that the time which the tenure of office of the officers to be 
elected under this Constitution shall begin. In one place in the 
Constitution it provides that the term of office of the first Legisla- 
ture shall commence the first Tuesday after the second Monday of 
January following their election. The Constitution provides that 
they shall be elected at the first general election under the provisions 
of the Constitution which will be in November 1890. Their term 
of office will commence the first Tuesday after the second Monday of 
January, 1891. I think when this amendment is fully understood 
by the members of the Convention they will see the force of it. The 
gent'eman who framed this particular ordinance admitted to me 
that it was not right, but did not express his opinion. 

The Chairman: The question is upon the amendment offered 
to the amendment of the' gentleman from Bon Homme. Is the 
Convention ready for the question ': 

Mr. Stroupe: This was carefully considered and finally voted 
down in the Committee. 

Mr. Williams: I want to explain tin- intent of that .tnu-nd- 
ment. This amendment provides this: That the officers elected 
the first day of October 1SS9 will continue tq hold their otlue; their 



374 SOUTH DAKOTA DEBATES, 1889 

term of office will expire the first of January 1891, when those rules 
will hold until the election of 1890. 

The Chairman: The question is upon the amendment. 

Mr. Boucher: With all due deference to the gentlemen of the 
Committee I believe that this Schedule had ought to provide that 
the officers elected this fall ought to hold until the general election. 
The Constitution undoubtedly intends that our general elections 
in this State shall be bi-ennial. In fact the effect of adoption of the 
Schedule as it now stands will result that the general elections will 
occur every year. I do not believe it would be radically wrong; 
I do not believe it would be contrary to the spirit of the Constitu- 
tion if this Schedule should provide for the election of officers that 
they act until their successors are elected and qualified at the next 
general election. I hope the amendment will be adopted. 

Mr. Hole: To explain that further I will say that this has been 
before the Committee and argued by the various lawyers and sub- 
mitted, and the lawyers reconsidered it in Committee and they have 
decided it was not best. 

We tried our best to get that through and we worked to get 
that in but that is our judgment and if there was to be a change I 
would not want it to be at my recommendation. I am satisfied that 
we do not w r ant it. 

Mr. Willis: I am sure the people are nearly a unit in this ; that 
it is the temper and sentiment of the people not to have an election 
every year. They want this business bi-ennial. I am in favor of 
the amendment. 

The Chairman: Is the Convention ready for the question? 
Tho. e in avor of the adoption of the amendment offered by the 
gentleman from Bon Homme, say aye ; those opposed say no. The 
noes appear to have it ; the noes have it and the amendment is lost. 

Mr. Humphrey: I move that the section be amended by 
striking out everything after the words "shall be" in the th rd line 
of the first paragraph and inserting instead the words ' shall be as 
provided in the Constitution." 

The Chairman: The third line of the second paragraph? 

Mr. Humphrey: The section will then read "The tenure of 
all officers, whose election is provided for in this Schedule, on the 
first day of October, A. D., 1889, shall be provided in the Con- 
stitution." 

The Chairman: That is substantially the same. 



SCHEDULE 375 



.Mr. Humphrey: I do not so understand it. I shall not take 
the time to tell the members in regard to overstepping the pro- 
visions of the Omnibus Bill in discussing the question with regard 
to the powers with regard to Section 7. In my judgment th's is 
overstepping the power of the provision of the Constitution ; this 
is overstepping the powers of the Omnibus Bill and it defines their 
terms and the Constitution provides for their terms ; the laws provide 
for the terms of officers we now have and we have no power to change 
the term of office. I am not in favor of the election at that time 
anyway ; and above all I am not in favor of infringing upon the Con- 
stitution. I am in favor of electing the officers in compliance with 
this Bill and in accordance with the Constitution. 

The Chairman: The question before the Convention is the 
adoption of the remainder of the report of the Committee on 
Schedule and Ordinance. The gentleman from Faulk moves to 
amend Section 19 by striking out all after the words "shall be" in 
the third line of the first paragraph and inserting the following: 
"Shall be as provided in the Constitution." Those favoring the 
amendment as stated, say aye; those of the opposite opinion say no. 
The noes appear to have it, 

i Calls of "Rising vote".) 

The Chairman: Those of the opinion that the amendment 
should prevail please rise and stand until counted. Those opposed 
rise and stand until counted. The vote stands twenty ayes, noes, 
thirty. The amendment to the amendment is lost. The question 
is upon the adoption of the motion of the gentleman from Beadle, 
that the rest of the report before the Convention be adopted. 
Is the Convention ready for the question? 

Mr. Sterling:- I move as a substitute that this report be post- 
poned until next Thursday. 1 simply want to say that while the 
Chairman of that Committee said we have hail that report before 
us for twelve hours, our attention has been called in that time to 
other portions of the report and there are other important matters 
I would like to look over and have time for the consideration of these 
questions. 

The report provided for the election every year. It seen 
me quite an important thing to be considered I am not ready to 
vote upon that question. 

Judge Edgerton: I would ask if the amendment is carried 



376 SOUTH DAKOTA DEBATES, 1889 

and then the original motion is carried what is the condition of the 
report on Schedule ? 

The Chairman: The report would be this. We did adopt the 
amendment offered by the gentleman from Beadle. Defeated the 
motion made by the gentleman from Spink to postpone, 

Judge Edgerton: The point of order I make is, that this is 
not a proper amendment. It is a part of the substitute; it is not 
a proper amendment. One motion is to postpone and the other is 
to adopt. ' 

The Chairman: Mr. Edgerton makes a point of order and the 
amendment is ruled out. 

Mr. Hole: I offered that as a substitute. 

The Chairman: The Chair cannot recognize something that 
is entirely different. I would have allowed it if no point of order 
had been raised. The motion of the gentleman from Spink is now in 
order. The question is upon the motion of the gentleman from 
Spink, to postpone further consideration of this report until next 
Thursday. Is the Convention ready for the question? Those 
favoring the motion as stated will please make it known by saying 
aye; those opposed by saying no. The Chair is unable to decide. 
(Calls of "Division".) 

The Chairman: Those favoring the motion as stated will 
please rise and stand until counted. Those opposed will please rise 
and stand until counted. 

The Chairman: Those who support the motion are thirty- 
three and those who oppose it are twenty-one. 

The motion of the gentleman from Spink is carried. 

Mr. Lee: I move you that the Convention do adjourn. 

Which motion prevailed. 



TWENTY-FOURTH DAY. 

Hall of the Constitutional Convention, July 27th, 1889, Sioux Falls 

Dakota. 

Convention called to order at 2 o'clock P. M. 

Dighton Corson in the chair. 

The President: The Convention will come to order and Rev. 
Willis will lead in prayer. 

Prayer by Rev. Willis: Almighty God, we recognize Thy 
presence in all the affairs and interests of man's life. We believe 
that Thou art concerned and that thine eye is over us as individuals 
and communities as well as over the great national commonwealth. 
We believe that Thou art interested in the success and errors of 
man, that Thou art directing and controlling influences that are 
vital to our future welfare and life. That Thou art never forgetful. 

Preside Thou over the deliberations of this body this day ; leave 
the imprints of Thy hands upon the completed work of this Con- 
vention. Guide us by Thy divine wisdom, always and keep us 
through our Redeemer 

AMEX. 

The President: The Clerk will read a communication. 
The Clerk reads as follows : 

Sioux Falls, July 27th, '89. 
JUDGE CORSON: 

Will you please preside at the Convention during my absence? 
Yours truly, 

A. J. EDGERTON, President. 

The President: The reading of the Journal by the Clerk will 
be the next business in order. 

Mr. Jolley: I thought while the Clerk was reading the Journal 
that it did not state the time that we adjourned to on motion !' 
Mr. Van Buskirk in the morning; it should be tint ill two M\ l H -k. 
The President: Let that correction U- made. 



378 SOUTH DAKOTA DEBATES, 1889 

Mr. Smith: Among the signatures to the Schedule Committee 
is printed R. S. Smith. It should be R. A. Smith. I would like 
to have it corrected. 

Mr. Young: I wish to ask information in regard to those pro- 
ceedings that were declared out of order. It seems to me that 
ought to appear on the minutes Those amendments that were 
declared out of order. 

Mr. Jolley: The Journal should show everything. It stands 
as a precedent for the future. 

The President There being no further corrections the minutes 
will stand approved. "What is the further pleasure of the Con- 
vention ? 

Mr. Kimball: I move that we do now adjourn. 

The President: It is moved that the Convention do now 
adjourn. Those favoring this motion will say aye; those opposed 
will say no. The ayes have it ; the Convention stands adjourned. 



TWENTY-SIXTH DAY. 

Hall of the Constitutional Convention, Sioux Falls, Dakota, July 

29th, 1889. 

Convention called to order at 2 o clock P. M. 

Judge Corson presiding. 

The President: Rev. Mr. Huntley, of Jerauld County, will 
lead us in prayer. 

Prayer by Rev. Huntley: O God our Heavenly Father, \\c 
bless and adore Thee as the God of nations and as the God of each 
individual heart and life. 

We thank Thee, Our God, that Thine infinite love takes hold 
upon the most insignificant preacher in the universe. That Thou 
hast revealed to us a loving Father ready to bless Thy children with 
their hearts' desires when Thine infinite wisdom commends those 
desires. We pray Father today for wisdom and a clear discerning 
judgment that will enable us in Convention hall and Committee 
room to do good work acceptable to Thee and to our constituents. 
Bless with us, our fellow's as they shall go* about the intricate, im- 
portant business of the Commission in North Dakota. Remember 
our dear ones at home; may they be kept of Thee we pray. Guide 
us through the remaining days of this Convention and at last save 
us Thyself, we ask in Jesus' name. 

AMEN. 

The President: The Clerk will read the Journal of the pre- 
ceding day. 

TWENTY-FOURTH DAY. 

Sioux Falls, Dakota, July 27, '89. 
Two o'clock P, M. 

Convention called to order by Judge Corson. 
Prayer by Rev. Willis. 

The Clerk will road the- following communication from Prcsidi-m 
Edgerton: 

Sioux Falls, Dakota, July 2wh. 1889. 
JUDGE CORSOX:- 



380 SOUTH DAKOTA DEBATES, 1889 

Will you please preside over the Convention during my 
absence. Yours truly, 

A. J. EDGERTOX. 

Journal read and approved. 

Moved by Mr. Wheeler that we now adjourn. 

Carried. 

The President: There being no corrections to the minutes as 
read they will stand approved. 

Mr. Young: Mr. President, I move you that we do now adjourn. 

The President : Those favoring the motion that the Convention 
do now adjourn, say aye. 

Mr. President: The Convention stands adjourned until to- 
r orrow at two o'clock. 



TWENTY-SEVENTH DAY. 

Hall of the Constitutional Convention, Sioux Falls, Dakota, July 

30th, 1889. 

Convention called to order at two o'clock P. M. 

Dighton Corson presiding. 

The President : The Convention will please come to order. 

Mr. Davies: I move that we do now adjourn. 

This motion received a second and upon being put to a vote 
was carried and the Convention stands adjourned. 



TWENTY-EIGHTH DAY. 

Sioux Falls, July 31st, 1889. 

Hall of the Constitutional Convention, two o'clock P. M. 

Convention called to*order by President Edgerton. 

Prayer by Rev. Willis. 

Our Father in Heaven, we recognize that Thou art an infinite 
God and our'Father; that Thou art present in all the deliberations 
of this body and are cognizant of all our actions. Help us to realize 
that most important truth to ourselves that we may adopt the true 
legitimate ends of right and choose the higher motives of life. 

May our lives redound to Thy glory we ask for the Redeemer's 
sake. 

AMEN. 

The President : The Clerk will read the Journal of the Twenty- 
sixth and Twenty-seventh days. 
The Clerk reads: 

TWENTY-SIXTH DAY. 

Sioux Falls, Dakota, July 29th, 1889. 
Two o'clock P. M. 

Convention called to order by Judge Cors on. 
Moved by Mr. Young to adjourn. 
Carried. 

TWENTY-SEVENTH DAY 

Sioux Falls, Dakota, July 30, '89 

Two o'clock P. M. 

Convention called to order by Judge Corsun. 

Moved by Mr. Davies to adjourn. 

Carried. 

The President: The Journal will stand approved unless thr 
Chair hears ob cvtions. The- Chair hears none and the Journal is 
approved. 



384 SOUTH DAKOTA DEBATES, 1889 

A communication was read from the Commander of the G. A. 
R. in reference to the name of the new state, 

The President: It will be referred to the Committee on Name, 
Boundaries and Seat of Government. 

Mr. Van Buskirk: At the request of Judge Corson I present 
the report of the Committee on Arrangement and Phraseology as 
follows: 

Sioux Falls, July 31, 1889. 
MR. PRESIDENT: 

Your Committee on Arrangement and Phraseology to whom 
was referred the Preamble to the Constitution having had the same 
under careful consideration, beg leave to submit the following 
report in relation thereto, in which report there are no changes 
except the word "South" is inserted before the word "Dakota" in 
the first line and the word "South" before the word "Dakota" in 
the last line of said Preamble and that the changes arc in conformity 
with the Constitution and the Omnibus Enabling Act, and herewith 
report the Preamble with said changes incorporated therein and 
respectfully recommend the adoption of the changes nd the re- 
submission of the Preamble as amended. 

Preamble. 

We, the people of South Dakota, grateful to Almighty God for 
our civil and religious liberties, in order to form a more perfect and 
independent government, establish justice, insure tranquility, pro- 
vide for the common defense, promote the general welfare and 
preserve to ourselves and to our posterity the blessings of liberty 
do ordain and establish this Constitution for the State of South 
Dakota. 

D. CORSON, 
Chairman of Committee. 

The President: Mr. Van Buskirk moves the adoption of the 
report of the Committee Those favoring the adoption of the re- 
port of the Committee as read, will please say aye ; those opposed 
will say no. The ayes have it ; the report is adopted. 

The Chairman of the Committee on Arrangement and Phrase- 
ology submitted the following report. 

Sioux Falls, July 31, 1889. 
MR. PRESIDENT: 

Your Committee on Arrangement and Phraseology to whom 
was referred Article II of the Constitution, having had the same 
under careful consideration, beg leave to submit the following 
report relative thereto, and in which report there are no changes of 
the Constitution, and that said Article is in conformity to the pro- 



THE PHRASEOLOGY 385 



visions of the Enabling Act ; and respectfully recommend the 
adoption of the report and the resubmission of the Article. 

ARTICLE II. 

DIVISION OF THE POWERS OF GOVERNMENT. 

The powers of government of the State are divided into three 
distinct departments the Legislative, Executive and Judicial 

and the powers and duties of each are prescribed by this Consti- 
tution. 

D. CORSON. Chmn. 

Mr. Van Buskirk: I move the adoption of the report of the 
Committee. 

The President: Mr. Van Buskirk moves the a'doption of this 
report of the Committee. All those favoring this motion will please 
make it known by saying aye. Opposed, if any, by saying no. The 
ayes appear to have it ; the ayes have it and the report is adopted. 

Mr. Willis: I move that we do now adjourn. 

Mr. Parker: Before the motion is put I would like to ask con- 
sent to sign the report of the Committee on Apportionment and 
Schedule. I met with the Committee in all their deliberations 
except when I was necessarily called away last Wednesday and as 
the matter now stands it might appear a dereliction of duty on im- 
part, I would like permission to sign the report. 

The President: The report is not signed by the balance of the 
Committee; 

Mr. Parker: I would like permission to sign these reports at 
this time. 

The President: If there is no objection, leave will be granted. 
The chair hears no objections. 

The motion to adjourn being put was carried and the Convention 
was divhnvd adjourned until tomorrow 'at two o'clock. 



TWENTY-NINTH DAY. 

Hall of the Constitutional Convention, Sioux Falls, Dakota, August 

Ifct, 1889. 

Two o'clock P. M. 

Convention called to order by President Edgerton. 

Prayer by Chief Clerk, Mr. Burdick: 

Our Father in Heaven, we thank Thee for thy preserving care. 
We thank Thee for health, life and happiness that are ours. Grant 
that today we may do that that shall be pleasing in Thy sight and 
the business that shall be transacted by this Con-vention today, may 
it meet with Divine approval. Grant that whatsoever be done, may 
be done with an eye to the best interests of the people. Bless us 
all for Christ Jesus' sake. 

AMEX. 

The President: The reading of the Journal will be next in 
order. 

The Clerk, at this point, reads the Journal. 

The President: Col. Jolley, has the Journal been approval? 

Mr.Jolley: Yes, Sir. 

Mr. Jolley: I move that the Convention do now take a 
until eight o'clock this evening. There are two reasons for making 
the motion The first, the Joint Commission will be here at that 
time. The further reason that when we adjourned Friday night 
there was an agreement made between the Committee on Schedule 
and Mr. Sterling, to move that the rest of the report be taken up 
today. I move that we take a rec c: s until eight o'clock this evening. 

The President: 1 Colonel that we dispose of the fe\v 

very short matters first. 

Mr. Jolley: I withdraw the motion, with the foment of my 

nd. 

Mr. Davit--: I move the President appoint a Committee of 



388 SOUTH DAKOTA DEBATES, 1889 

five to secure the publication of the Constitution and Schedule as 
ordered by the Convention. 

Which motion received a second. 

The President: As many as are of the opinion that the reso- 
lution be adopted, say aye. The ayes appear to have it. The ayes 
have it. 

A communication relative to artesian wells was read by the 
Clerk, signed by John J. Gushing. 

The President: The communication will be referred to the 
Committee on Judiciary. 

A communication was read from John J. Gushing, of Rapid 
City, S. D., under date of July 27th, relative to name, of the pro- 
posed new state, signed by J. M. Simmons. 

The President: Referred to the Committee on Name, Bound- 
ary. 

Mr. Jolley: I renew my motion to take a recess until eight 
o'clock this evening. 

The President:. The motion w r as made and duly seconded that 
the Convention do now take a recess until eight o'clock this evening. 
Those favoring this motion please make it known by saying aye, 
those opposed say no. The ayes appear to have it ; the ayes have it 
and the Convention stands adjourned until eight o'clock this 
evening. 
Hall of the Constitutional Convention, Sioux Falls, Dakota, August 

1st, 1889. 

Eight o'clock P. M. 

The President: The Convention will come to order. 

Mr. Edgerton: (of Yankton): Mr. President, I have a reso- 
lution I wish to offer and move its adoption. 

WHEREAS: Honorable Benjaman Harrison for years has been 
the earnest friend of Dakota and the advocate of Home Rule in 
America as well as abroad, and 

WHEREAS, He has contributed largely to the division of Da- 
kota and the early admission of four great Territories into the 
Union of States, therefore be it 

RESOLVED, By the delegates of South Dakota in Constitutional 
Convention assembled, that the thanks of all sincere and patriotic 
friends of republican government, and especially those residing in 
the Territories, are due to him for the consistent arid unwavering 
stand he has maintained in favor of those principles for the ad- 
mission of new States taught by the founders' of the Republic. 



COMPLIMENTS TO HARRISON. 389 

RESOLVED, That a copy of these resolutions be transmitted 
by our presiding officer to the Hon. Benjaman Harrison, President 
of the United States. 

The President: Gentlemen, you have heard the resolution 
offered by the gen eman from Yankton. Is the Convention ready 
for action? Those favoring the resolution as read, will make it 
known by saying aye ; those opposed by saying no. The ayes ap- 
pear to have it ; the ayes have it ; the resolution is adopted . What 
is the further pleasure of the Convention. 

Mr. Wescott: I move that when we adjourn tonight it be 
until tomorrow morning at nine o'clock. 

Which motion received a second. 

The President: Those favoring the motion that when the 
Convention adjourn, it adjourn to meet tomorrow morning at nine 
o'clock, say aye; those opposed say no. The ayes have it and the 
motion prevails. 

The President: I will announce the Commmittee on Printing 
the Constitution in pursuance to the resolution passed this afternoon. 
Mr. Davies, of Edmunds; Mr. Stroupe, of Brown; Mr. Zitka, of 
BonHomme ; Mr. Edgerton, of Yankton ; Mr. Ringsrud, of Union. 

Mr. President: Unless otherwise ordered the consideration 
of the report of the Committee on Ordinance and Schedule, will be 
resumed. If I remember rightly, I may be mistaken, if I remember 
rightly the motion of Mr. Hole, the Chairman of the Committee was 
that the balance of the report be adopted. 

Mr. Jolley: That motion was ruled out of order. 

Mr. Hole: I think we adjourned with that motion before the 
House. I would ask now to withdraw the motion and that wo re- 
consider the balance of the report section by section instead of as 
a whole. I would now move, that section 8 be adopted. 

The President: The Clerk will read Section 8. 

The Clerk reads as follows: Sec. 8. Immediately after the 
election herein provided for, the judges of election at each polling 
place, shall make a true and complete count of all the votes duly 
east at such election, and shall certify and return the result of the 
same with the names of all candidates, and the number of v< >t - 
for each candidate and the number of votes cast for and against the 
Constitution, and the number of votes cast for and against Pro- 
hibition, and the number of voles cast for and against Minority 
representation, and the number of votes cast for eaeh city, town or 



390 SOUTH DAKOTA DEBATES, 1889 

place, for the temporary seat of government, to the County Clerk 
or Auditor of their respective counties, together with one of the 
poll lists and election books used in said election." 

The President: Gentlemen, the question is upon the adoption 
of Section 8 as read. Those favoring the adoption of Section 8 
make it known by saying aye; opposed, if any, by saying no The 
ayes appear to have it ; the ayes have it and Section 8 is adopted. 

Mr. Hole: I move that Section 9 be adopted. 

The President: The Chairman of the Committee moves that 
Section 9 be adopted. The Clerk will read. 

The Clerk reads Section 9 as follows: "Within five days after 
the said election trie several boards of county canvassers provided 
by law for the canvassing of the results of the election shall make 
and certify to the Secretary of the' Territory of Dakota, the true 
and correct return of the total number of votes cast for the Consti- 
tution, and against the Constitution, of the number of votes cast 
for and against Prohibition, and the number of votes cast for and 
against Minority Representation, and the number of votes cast for 
each city, town or place as the temporary seat of government, and 
the number of votes cast for each person voted for at such election, 
except county officers and members of the Legislature and shall 
transmit the same to the Secretary of the Territory of Dakota, by 
mail, and shall file with the County Clerk or Auditor of each of said 
counties a duplicate and certified copy of said returns. 

Said Board of County Canvassers shall issue certificates of 
election to the persons who shall have received the highest number 
of votes cast for the respective officers of judge of the county court, 
and representatives in the Legislature and for State Senator or Sen- 
ators. 

The President: The question before the Convention is the 
adoption of Section 9 as read in your hearing. Those favoring this 
motion make it known by saying aye; those opposed, if any, by 
saying no. The ayes appear to have it ; the ayes have it and the 
motion prevails. Section 9 is adopted. 

Mr. Hole: The same motion as to Section 10. 

The President: The Clerk will read. 

The Clerk: "Sec. 10. When two or more counties are con- 
nected in one senatorial or representative district, it shall be the 
duty of the Clerks and Auditors of the respective counties to attend 
at the office of the County Clerk of the senior countv in date of or- 



ELECTION RETURNS 391 



ganization, within twenty days after date of election and they shall 
compare the votes given in the several counties comprising such 
Senatorial and Representative district and such Clerks and Auditors 
shall immediately make out a certificate of election to the person 
having the highest number of votes in such district for State Senator 
or Representative or both, which certificate shall be delivered to 
the person entitled thereto on his application to the Clerk of the 
senior county or such district. 

The President: The question recurs upon the adoption of 
Sestion 10 as read. Those voting in the affirmative will say aye; 
those voting in the negative will say no; the ayes have it, Section 
10 is adopted 

Mr. Hole: I make the same motion as to Section 11. 

The President: The Clerk will read Section 11. 

The Clerk: SEC. 11. The Secretary of the Territory shall 
receive all returns of election transmitted to him as provided, and 
shall preserve the same, and after they have been canvassed as here- 
inafter provided, and after the admission of the State of South 
Dakota into the Union, he shall deliver said returns to the proper 
State officers of said State of South Dakota. 

Within fifteen days after said election, the Secretary of the 
Territory, with the Governor, and Chief Justice thereof or any two 
of them, shall canvass such returns, and certify the same to the, 
President of the United States as provided in the Enabling Act. 

They shall also ascertain the total number of votes cast at 
such election for the Constitution and against the Constitution ; 
the total number of votes cast for and against prohibition, and the 
total number of votes cast for and against Minority Representation; 
and the total number of votes cast for each city, town or place as 
the temporary seal of government"; and the total number of votes 
cast for each person voted for, for any office at said election, ex- 
cepting County Judge and members of the Legislature, and shall 
declare the result of said elc< lion in conformity with such vote, and 
the Governor of the Territory shall thereupon issue' a proclamation 
at once thereof. 

They shall also make and transmit to the State Legislature, im- 
mediately upon its organization a list of all of the State and Judicial 
officers who shall thus be ascertained to be duly elected. 

The various County and District Canvassing Boards shall make 
and transmit to the Secretary <>!' the Territory, the names of all per- 
sons declared by them to be elected members of the Senate and 
House at Representatives <>i the State of South Dakota; lie shall 
make separate lists of the Senators, and Representatives so 
which lists shall constitute the rolls under whieh the Senate and 
House of Representatives shall be organized. 



392 SOUTH DAKOTA DEBATES, 1889 

The Governor of the Territory shall make and issue certificates 
of election to the persons who are shown by the canvass to have re- 
ceived the highest number of votes for Governor, Lieutenant Gov- 
ernor, Secretary of State, Auditor, Treasurer, Attorney Genera 
Superintendent of Public Instruction, Commissioner of School and 
Public Lands, and Judges of the Supreme and Circuit Courts. 
Such certificates to be attested by the Secretary of the Territory, 

The President: The question is upon the adoption of Section 
11. Those favoring the adoption of this section as read, make it 
known by the usual sign ; those opposed, by saying no. The ayes 
appear to have it. The ayes have it, Section 11 is adopted. 

Mr. Hole: I move you that Section 12 be adopted. 

The Clerk: "Sec. 12. The apportionment made in this Con- 
stitution shall govern the election above provided for, for members 
of the State Legislature until otherwise provided by law. 

At the first election held under this ordinance for Senators and 
Representatives of the Legislature there shall be elected forty-five 
Senators and one hundred and twenty-four Representatives in the 
State Legislature respectively." 

The President: It is moved that Section 12 be adopted. 
Those voting in the affirmative will say aye, those voting in the 
negative will say no. The ayes have it. Section 12 is adopted. 

Mr. Hole: I move that Section 13 be adopted. 

The President: The Clerk will read. 

The Clerk: "Sec. 13. The Legislature elected under the pro- 
visions of this ordinance and the Constitution shall assemble at the 
temporary seat of government on the 3rd Tuesday in October, in 
the year A. D., 1889, at 12 o'clock noon, and on the first day of 
their assemblage the Governor and other State officers shall take 
the oath of office in the presence of the Legislature. The oath of 
office shall be administered to the members of the Legislature, and 
to the State officers by the Chief Justice of the Territory, or by any 
other officer duly authorized by the laws of the Territory of Dakota 
to administer oaths." 

The President: The Convention is now about to vote upon 
the adoption or rejection of Section 13. Those favoring the motion 
say aye; those favoring or voting in the negative say no. The ayes 
appear to have it ; the ayes have it. Section 13 is adopted. 

Mr. Hole: The same motion as to Section 14. 

The Clerk: "Sec. 14. Immediately after the organization of 
the Legislature and taking the oath of office by the State officers, 



ELECTION OF SENATORS 393 



the Legislature shall then and there proceed to the election of two 
Senators of the United States for the State of South Dakota, in 
the mode and manner provided by the laws of Congress for the 
election of the United States Senators. And the Governor and 
Secretary of State of South Dakota shall certify the election of the 
said Senators, and two Representatives in Congress in the manner 
required by law." 

The President: The question recurs upon the adoption of 
Section 14 of the report of the Committee on Schedule and Ordi- 
nance. Those favoring this motion will make it known in the usual 
manner. Those opposed, in the same w r ay. The ayes appear to 
have it ; the ayes have it. Section 14 is duly adopted. 

Mr. Hole: I move that Sections 15 and 16 be adopted. 

The Clerk: SCCTION 15. Immediately after the election of 
the United States Senators as above provided for, said Legislature 
shall adjourn to meet at the temporary seat of government on the 
first Tuesday after the first Monday of January, 1890, at 12 o'clock 
M. 

Provided, however, that if the State of South Dakota has not 
been admitted by proclamation or otherwise at said date, then 
said Legislature shall convene within ten days after the date; of ad- 
mission of the State into the Union. 

SEC. 16. Nothing in this Constitution or Schedule contained 
shall be construed to authorize the Legislature to exercise any 
powers except such as are necessary to its first organization, and 
to elect United States Senators, and to adjourn as above provided. 

Nor to authorize an officer of the Executive, Administrative or 
Judiciary Departments, to exercise any duties of his office until 
the State of South Dakota shall have been regularly admitted into 
the Union excepting such as may be authorized by the Congress of 
the United States. 

The President: Gentlemen, the motion before you now of the 
gentleman from Beadle, is .upon the adoption of Sections 15 and 
16 of the report under consideration. Are you ready for the ques- 
tion? Those supporting the motion will make it known byi ay ing no. 
The motion prevails. Sections 15 and 16 are adopted. 

Judge Corson: I desire tin- ^entleman to withdraw 17. 1 may 
be mistaken. 

Mr. Hole: I move that Section 17 be adopted 

The Clerk -Sec. 17. "Tin- ordinances and Schedule enacted 
by this Convention .-hull be held to l>e vaild for all the pur: 
thereof." 



394 SOUTH DAKOTA DEBATES, 1889 

The President Those favoring the adoption of Section 17 
will vote aye ; those opposed will say no. The ayes appear to have 
it ; the ayes have it. Section 17 is adopted. 

Judge Corson: I move to add after the 4th subdivision of 
Section 18 a subdivision numbered "5" which is as follows: "Fifth. 
That jurisdiction is ceded to the United States over the military res- 
ervations of Ft. Meade, Ft. Randall, and Fort Sully, heretofore 
declared by the President of the United States; provided legal pro- 
cess, civil and criminal, of this State shall extend over such reser- 
vations in all cases of which exclusive jurisdiction is not vested in 
the United States, or of crimes not committed within the limits of 
such reservations." I will in this connection ask the Clerk to read 
a letter of the Commanding General of this Department. 

The Clerk reads: 

Headquarters Dept. of Dak, St. Paul, Minn., July 25th 1889. 
To THE PRESIDING OFFICER OF THE CONSTITUTIONAL CONVENTION 

OF SOUTH DAKOTA: 
SIR: 

I have the honor, in accordance with instructions received from 
the War Department to request that consideration of the Con- 
vention be invited to the proposition that a clause be inserted in 
the Constitution of the State of South Dakota, by which jurisdiction 
shall be reserved to the United States, as provid'ed in Section Eight 
of Article One of the Constitution, over the military reservations 
of Forts Meade, Randall and Sully, heretofore declared by the 
President. 

Very respectfully your obedient servant. 

THOS. H. RUGER, 
Brigadier-General Commanding. 

Mr. Corson: I will state that this letter came to us through 
the hands of Lieutenant Fowler, one of the staff. It seems that the 
object is to prevent conflict of jurisdiction between the State au- 
thorities and the United States authorities over these reservations ; 
a matter that has given the United States some trouble in certain 
localities; and they desire to avoid it here. I suppose there will 
be no objection to conceding this jurisdiction, as it is generally 
done in all cases where it is requested. This is an oversight. It 
is usual in enabling acts to provide for this, but through some over- 
sight it was neglected in ours. Hence, the Department has deemed 
it of sufficient importance to engraft it in our Constitution. I will 
therefore move that the amendment be adopted. 

Which motion received a second. 



COMPACT WITH THE UNITED STATES 395 

Mr. Jollcy: I will call attention, gentlemen, to this fact, this 
Section 18 and the reason why it was put in this Schedule is this: 
That the Enabling Act said, that we should by ordinance make such 
a provision as this and in order to comply with the Enabling Act 
this was put in the Schedule by the Committee. There is also, I will 
inform the gentleman further always just such a provision in a 
Constitution under the head of Compact with the United States ; 
I think that it would have very little force in this Schedule. The 
amendment offered by the gentleman from Lawrence may be regu- 
lar, but I think the better course would be to make the compact 
with the United States in the Constitution and add it there, and in 
so doing add it in both places. 

Mr. Corson: I hardly think that would be necersary, one con- 
pact has been adop ed and enrolled and it would make considerable 
changes now to incorporate it in that provision. 1 believe it might 
be satisfactory to place it as contemplated in this amendment. I 
do not th'nk there can be any objection. 

Mr. Hole: I would like to hear the amendment read again. 

The Clerk reads the amendment as desired. 

The President: Those < f the opinion that the amendment 
should be adopted say aye ; those opposed say no. The ayes have it 
The question now recurs on the adoption of Section 18 as amended. 
The Clerk will read Section 18 with the amendment. 

The Clerk: SEC. 18. That we, the people of the State of 
South Dakota, do ordain: 

First: That perfect toleration of religious sentiment shall be 
secured, and that no inhabitant of this State shall ever be molested 
in person or property on acocunt of his or her mode of religious 
worship. 

Second: That we,< the people inhabiting the State of South 
Dakota do agree and declare, that we forever disclaim all right and 
title to the unappropriated public lands lying within the boundaries 
of South Dakota; and to all lands lying within said limits owned 
or held by any Indian or Indian tribes, and that until the title 
thereto shall have been extinguished by the United States, the same 
shall be and remain subject to the disposition of the United S 
and said Indian lands shall remain under the absolute jurisdiction 
and control of the Congress of the United States. 

That the lands belonging to the c itixens of the Unite. 1 St.. 
siding without the said State -hall never be taxed at a higher rate 
than the lands belonging to residents of this State. That n. 
shall be imposed by the State of South Dakota on lands or property 
therein belonging to or which may hereafter be pun ha.-e<l by the 



396 SOUTH DAKOTA DEBATES, 1889 

United States, or reserved for its use. But nothing herein shall 
preclude the State of South Dakota from taxing as other lands are 
taxed any lands, owned or held by any Indian who has severed his 
tribal relation and has obtained from the United States, or from 
any person a title thereto by patent or other grant save and except 
such lands as have been, or may be granted to any Indian or Indians 
under any act of Congress containing a provision exempting the 
lands thus granted from taxation, all such lands which may have 
been exempted' by any grant or law of the United States shall re- 
main exempt to the extent, and as prescribed by such Act of Con- 
gress. 

Third: That the State of South Dakota shall assume and pay 
that portion of the debts and liabilities of the Territory of Dakota 
as provided for in this Constitution. 

Fourth: That provision shall be made for the establishment 
and maintenance of systems of public schools which shall be open 
to all the children of the State and free from sectarian control. 

Fifth: That jurisdiction is ceded to the United States over 
the military reservations of Fort Meade, Fort Randall and Fort 
Sully heretofore declared by the President of the United States; 
provided legal process, civil and criminal, of this State shall extend 
over such reservations in all cases of which exclusive jurisdiction 
is not vested in the United States, or of crimes not committed 
within the limits of such reservations. 

These ordinances shall be irrevocable without the consent of 
the United States and also the people of said State of South Dakota, 
expressed by their Legislative assembly. 

The President: Is the Convention now ready? Those favor- 
ing the adoption of the mot 'on of the gentleman from Lawrence will 
say aye; and those opposed will say no.. The ayes have it. Sec- 
tion 18 as amended, is adopted. 

Mr. Hole: I move that Section 19 be adopted. 

The Clerk: SEC. 10. The tenure of all offices, whose election 
is provided for in this Schedule on the first day of October, A. D., 
1889, shall be as follows. 

The Governor, Lieutenant Governor, Secretary of State, 
Auditor, Treasurer, Attorney General, Superintendent of Public 
Instruction Commissioner of School and Public Lands, Judges of 
County Courts, shall hold their respective offices until the first 
Tuesday after the first Monday in January, A. D., 1892, at twelve 
o'clock M. and until their successors are elected and qualified. 

The Judges of the Supreme Courts and Circuit Courts shall 
hold their offices until the first Tuesday after the first Monday in 
January, A. D., 1894, at 12 o'clock M. and until their successors 
are elected and qualified, subject to the provisions of Section 26 
of Article V of the Constitution. 

The terms of office of the members of the Legislature elected 



TENURE OF OFFICE AGAIN- 397 

: ^* . . 

at the first election held under the provisions of this Constitution, 
shall expire on the first Tuesday after the first Monday in January, 
one thousand eight hundred and ninety-two. (1892). 

Mr. Williams: I have an amendment to that Section just 
read; I will state my reasons for moving it. 

The Clerk reads the amendment. "Amend Section 19 of the 
report of the Committee on Schedule and Ordinance, by striking 
out the dates, 1892 and 1894 where they occur in said section, and 
inserting in lieu thereof the date 1891." 

Mr. Will'ams: I will move the adoption of the amendment of 
Section 19 as read which motion received a second. 

The President: Mr. Williams moves to amend Section 19, as 
read. Is the Convention ready for the question? 

Mr. Hole: I would like to hear the amendment read again 
please. 

The Clerk again reads the amendment. 

Mr. Williams: My object in moving that amendment will 
occur to you upon half a moment's consideration. In the second 
clause of the Section as it now stands, Sec. 19, it provides that the 
Governor, Lieutenant Governor, Secretary of State, Auditor, 
Treasures, Attorney General, Superintendent of Public Instruction, 
Commissioner of School and Public Lands, Judges of County Courts, 
shall hold their respective offices until the first Tuesday after the 
first Monday in January, 1892. The fourth claus. of the section 
provided the terms of office of the members of the Legislature elected 
at the first election held under the provisions of this Constitution 
shall expire on the first Tuesday after the first Monday in January, 
1892. That section as it stands and Section 3 provides that the 
Judges of the Supreme and Circuit Courts shall hold their office unt 1 
the first Tuesday after the first Monday in January, 1894, in fait. 
extends the time and provides that the tenure of office of the officers 
elected in tlrs October election extends beyond the time of tin- 
term fixed by the Constitution. It goes beyond the necessity which 
this Slate is under after getting into the Union to tide over until an 
election can be held under the Constitution 1 take it the only 
ity by the provision <>f the Schedule and Ordinance is to 
extend over the time until the people vote after \\e become a 
State, until the State government can elect their State otVuers 
and no longer. 

Further, the Constitution provides that the term of the L. 
lature of the members of the Legislature, shall be two vears : it 



398 SOUTH DAKOTA DEBATES, 1889 

further provides that the Legislature shall meet on the January 
following the election of each Legislature. This provides that the 
Legislature elected in October shall hold until January, 1892, and 
the first meeting of this Leg'slature will be in "January, 1890. By 
the Constitution the Legislature must again assemble in January, 
1892. And also by the terms of the Constitution the Legislature 
elect must assemble in January immediately following its election. 
Now, then, if the terms of the Legislators elected at this coming Oc- 
tober election extends to 1892 the only way that the Cent tic tional 
provision can be complied with is by a general election in 1891; 
the Constitution provides that the Legislature shall assemble in 
January following its election. Thus offering an amendment to the 
Constitution the Constitution provides for one election and only 
one, and that is a general election. We have upon our statute books 
of the Territory the law that the general elections occur on the even 
numbered years ; it is undoubtedly intended the first gereral 
election after the-admission of the State will occur in 1890 ; then at 
that time the Legislature must be elected again and will assemble in 
January, 1891 otherwise if this report is adopted there will have to 
be a general election provided for by the Legislature for 1891, and 
they must assemble in January following their election. The Legis- 
lature must convene every two years. That will consequently 
coerce the Legislature into providing an election for each year. 
This I take it is not in accordance with the wishes of the people ; I 
take it, it is not in accordance with the Constitution. 

The Constitution also provides that the length of term of 
office of the Supreme Court Judges that are elected at the fint 
election under the Constitution shall be four years, and after that 
it is six years ; and that the Legislature may provide by law for the 
election of the judges of the courts at a different time than at which 
other officers are elected ; and in order that they may do this the 
Constitution gives the Legislature the power to extend or abridge 
the term of office of any officer then holding ; but it nowhere indicates 
that this Convention even if it was in the provision of the Consti- 
tution to enact that, that this Convention by ordinance may pre- 
scribe for the term of office of either the State or County officers. 
The. Judges of the Courts have a longer time than the Constitution 
prescribes. A constitution having fixed a time at which the Legis- 
lators must assemble, the January following their election and 
only provided for the general election the necessary result is that 



MR. HOLE'S VIEWS ON TENURE 399 

the Legislature must provide for a general election in 1891. And 
the result would be that we will hold a general election each yea r 
This amendment that I have offered will work this way ; it provides 
that the officers elect, that his office will hold over until January 
1891, leaving it until the general election in 1890 to elect a full set 
of officers of County officers and State officers and Judges of the 
Courts. It will also leave it for the Legislature hereafter if the 
people demand it to provide for a general election every year, in 
which the Judges may be elected at different times than the 
other officers. I think it will meet with the hearty concurrence 
of the people at large of the Territory or the proposed State to 
provide only for the one election and if the officers were to hold until 
January, 1891. 

Mr. Hole: Probably the foundation question in this is whether 
the officers elected this fall are elected under the Constitution. Some 
argue that the Constitution not being adopted that they cannot be 
elected. In answer to that we say if they are elected, and the Con- 
stitution falls, they fall with it. This is the proposition submitted 
to the people; the Constitution, if it stands, the officers are elected 
under its provisions and hold under its provisions of the Constitu- 
tion. The Constitution provides in Section 1 of Article 4 that the 
Governor shall hold his office for two years, if we elect a Governor this 
fall under the provisions of this Constitution and I would say that 
the Schedule and Ordinance as passed provides that we do hold this 
election under the provisions of this Constitution, then we elect 
Governor and Lieutenant Governor under its provisions, it will quite 
naturally follow all officers elected shall serve their time out as 
provided by the Constitution. And to escape any possible trouble 
in this direction, it seemed safe and proper to your Schedule Com- 
mittee to follow the provisions of the Constitution, knowing that 
we were in a different position from Constitutional Conventions, 
as a rule. We have only partial authority. This has been adopted 
and voted on by the. people; we merely make the changes. 

Again in Sec ti<>n 3. "The Governor and Lieutenant Governor 
shall be elected by the qualified electors of the State at the time and 
place of choosing the members of the Legislature." \\Y choose the 
members of the Legislature in ( )i tober ; under the provision> 
tion 3 \ve must elet t. the Governor and Lieutenant Governor at 
the same time and place. We ran (rare this through as to all the 
officers under the C'on> 1 itution. In Set tion S, Article 5. "The 



400 SOUTH DAKOTA DEBATES, 1889 

term of the Judges of the Supreme Court, who shall be elected at the 
first election under this Constitution shall be four years." At the 
first election under this Constitution, now if there is no election 
under the Constitution the Supreme Court Judges would naturally 
hold until there could be an election under the Constitution which 
might be in a few years or a year or two months. It has not seemed 
to the Committee advisable that the Judges of the Supreme Court 
of South Dakota elected for the first term should be elected for a 
short time. I think that that will be the conclusion, gentlemen, 
of every delegate here. That it is not desirable ; that the Judges of 
the Supreme Court of our new State should be elected for so short 
a time. 

In Section 15 of this same article we find "The State shall be 
divided into Judicial Circuits in each of which there shall be elected 
by the electors thereof one Judge of the Circuit Court therein whose 
term of office shall be four years." If you commence to cut down 
the time of these offices, this same difficulty runs through every- 
thing. 

If you follow the provisions of this Constitution, it makes the 
terms of desirable length. The one thing that is not desirable is 
having an election every year instead of every two years ; I cannot 
say that this will be desirable. You elect all the officers of the 
State and County and Circuit at one time, and there is so much op- 
portunity for figuring the decision of many of our State is that they 
have found it undesirable. I think that those states who have di- 
vided the elections up have found it most desirable for good govern- 
ment. 

Section 19 in regard to County Courts: "There shall be elected 
in each organized County a County Judge who shall be Judge of ihe 
County Court of said county, whose term of office shall be two years 
until otherwise provided by law." Our Schedule conforms to this. 
In Section 26, "The Judges of the Supreme Court, Circuit Courts, 
and County Courts shall be chosen at the first election held under the 
provisions of this Constitution, and thereafter as provided by law, 
and the Legislature may provide for the election of such officers on a 
different day from that on which an election is held for any other 
purpose and may, for the purpose of making such provision extend or 
abridge the term of office for.any of such Judges then holding, but 
not in any case more than six months." 



TENURE OF OFFICE 401 



In Section 37 it provides for the appointment of officers which 
was discussed the other evening. 

I think that these Sections, Section 5 again of Article 9 pro- 
vides: "In each organized county at the first election held after 
the admissipn of the' State of Dakota into the Union", you will 
notice the different provision here, the next election provided for 
in Section 5 of Article 8 reads: "In each organized County." 

Mr. Williams: May I ask a question? Does not that read, 
"The first general election"? 

Mr. Hole: It does not so read in my book. Mil < 

Mr. Humphrey ; In the report of the Committee to compare 
and proof-read the Constitution the word "general" is found to be 
there. 

Mr. Hole: This election is provided for after the admission 
of the State; the other elections referred to are provided for in the 
Constitution. I say, the intent of the makers oi the Constitution 
was to make the officers superior to the adoption of the Constitution, 
while the provision for the State government to take the place of 
the Territorial government was after the adoption leaving the 
Territorial officers to hold until after the beginning. Section 5 
provides for the County officers and those not provided for un- 
der the provisions of the election provided for under the Con- 
stitution. I think when you have considered this and read 
over these sections with the same care that your committee have, 
that you will arrive at this conclusion, that the only safe way is 
in taking the course to follow the chart. We have the Constitution 
as voted upon. That has been our conviction and while it may be 
desirable to many that the election should be every two yean 
personal matter, I think it is best the way it is. I think this is the 
intent of the framers of the Constitution and I think it is better. 

Mr. Wood, of Pennington: I think the amendment should In- 
divided into Sections to which the amendment refers, because it 
covers two dates, the date 1892 and 1894. I move you that the 
question raised by the amendment be divided. 

Mr. Williams: 1 will accept that without putting it , 
motion. 

' Mr. Sherwood, of Clark: I think the Chairman of the Com- 
mittee has perhaps directed our attention to the chief question at 
issue, whether we are holding this election under the provisions 
of the Constitution or under the Omnibus Bill. I think we are 



402 SOUTH DAKOTA DEBATES, 1889 

holding the election under the provisions of the Omnibus Bill. At 
the present time the Constitution is without force. We stand in a 
somewhat different position from that of the Convention of 1885 
in this matter from the fact that they had no Enabling Act to go 
by and perhaps the authority they had must have been that of 
the Legislature calling the Constitutional Convention. It ap- 
pears to me, however, if the gentleman is correct in his theory that 
this election is being held under the Constitution that we may strike 
another trouble, and that is the qualifications of electors ; if this 
is being held under the provisions of the Constitution'and not under 
the Enabling Act, of course, then the provisions of the Constitution 
will prevail as to the qualifications of the voter; his rights, powers 
and duties will be governed by the Constitution in that election ; 
the right of suffrage I apprehend no one will contend that for a 
moment because of Omnibus Bill especially provides what the 
qualifications of the voter shall be. Section 3 says, "That all per- 
sons who are qualified by the law r s of said Territories to vote for 
Representatives to the Legislative Assembly thereof are hereby- 
authorized to vote for and choose delegates to form Conventions 
in said proposed States ; and the qualifications of delegates to such 
Conventions shall be such as by the laws of such Territories respec- 
tively persons are required to possess to be eligible to the Legislative 
Assemblies thereof; and the aforesiad delegates to form said Con- 
ventions shall be apportioned within the limits of the proposed 
States in such districts as may be established as herein provided, in 
proportion to the population in each of said Counties and Districts 
as near as may be, to be ascertained to the time of making said ap- 
portionments by the persons hereinafter authorized to make the 
same, from the best information attainable, in each of which dis- 
tricts these delegates shall be elected, but no elector shall vote for 
more than two persons for delegates to such Conventions ; that 
said apportionments shall be made by the Governor, the Chief 
Justice, and the Secretary of said Territories ; and the Governors of 
said Territories shall, by proclamation, order an election of the dele- 
gates aforesaid in each of said proposed States, to be held on a Tues- 
day after the second Monday in May, 1889, which proclamation, 
shall be issued on the 15th day of April, 1889; and such election 
shall be conducted, the return made, the result ascertained, and 
the certificates to persons elected to such Convention issued in the 
same manner as is prescribed by the laws of said Territories, regu- 



TENURE OF OFFICE 403 

lating elections therein for delegates to Congress ; and the number 
of votes cast for delegates in each precinct shall also be returned. 
The number of delegates to said Conventions, respectively, shall 
be seventy-five, and all person residents in said proposed States 
who are qualified voters of said Territories as herein provided, shall 
be entitled to vote upon the election of delegates and under such rule 
and regulations as said Conventions may prescribe, not in conflict 
with this act upon the ratification or rejection of the Constitution. 
In this case, the Omnibus Bill claims to provide for this election, 
and any person shall be entitled to vote who is entitled to vote for 
members of the Legislature under the laws of the Territory. Be- 
lieving that if this election is under the Constitution that there 
could possibly be a conflict between the Omnibus Bill and the Con- 
stitution I do not think there is a good reason for the amendment. 
I am therefore opposed to this amendment. 

Mr. Hartley: As a member of that Committee I would like to 
say a word. This matter, by direction of the Committee, was 
submitted to a sub-committee of which I was a member. I drew the 
original draft of this Schedule. I had embodied in it, substantially, 
Mr. Williams' amendment. By vote of the Committee ii was 
changed as reported. While I assented to the change, still I am 
of the same opinion that we have the power to regulate this matter 
and that we should so provide that these officers should be elected 
at the first general election and that in ascertaining what that gen- 
eral election means as used in the Constitution we should use the 
legal Territorial definition which I understand under the statute is 
to the effect that the general elections are held on the even numbered 
years. In my mind the framers of this report had that definition 
in view when they used this; and in order to bring the election <>t 
these officers upon the first general election which if I would un- 
derstand it would be in the year 1890. I am in favor of the amend- 
ment as proposed by Mr. Williams as relating to the second sub- 
division of Section 19, Schedule and Ordinance report. 

"The Governor, Lieutenant Governor, Secretary of State, 
Auditor, Treasurer, Attorney General, Superintendent of PuH V 
Instruction, Commissioner of School and Public Lands. Judges of 
County Courts, shall hold their respective offices until tin- fn>t 
Tin-day after the first Monday in January. A. D., 1892. at twelve- 
o'clock. M., and until their successors arc' rkvtrd and qualified. 

Mr. Price: 1 am not prcparc-d to discuss this <jwstiim tonight ; 



404 SOUTH DAKOTA DEBATES, 1889 

I am not, this evening, even prepared to intelligently vote upon it. 
It occurs to me, however, that the proposed amendment to the 
original article is worthy of careful study and thoughtful consider- 
ation of the members of this Convention and from the diversity 
of opinion expressed in these debates I would say, this Convention 
is not ready to vote upon it at this time. I have no doubt we all 
are anxious to go home, but this is a matter or such vast importance 
it should not be acted upon hastily. I therefore move you that 
further consideration of this report be postponed until tomorrow 
morning. 

This motion received a second. 

Mr. Davies: In view of the fact that we are drawing pretty 
near to the close of this Convention and this matter has been brought 
before the Convention several days ago and has been postponed 
until this night, it is not probable that more careful consideration 
will be given it if we should postpone it. I move to lay this motion 
upon the table. . 

Mr. Lee: I second the motion. 

The President: The question before the Convention is upon 
the adoption of Section 19 ; to this the gentleman from Bon Homme 
moves an amendment. The gentleman from Hyde moves to post- 
pone ftirther action until tomorrow morning; the gentleman from 
Edmunds moves to lay the motion upon the table. Those favoring 
the motion to lay this amendment upon the table say aye ; those op- 
posed say no. The Chair is unable to decide. 

Calls of "Rising vote". 

The President: Those favoring the motion as stated, please 
make it known by rising; those opposed by rising, and standing 
until they are counted. 

The President: There are twenty-five ayes and thirty-five 
noes. The motion is lost. 

The President: The question recurs upon the motion of the 
gentleman from Hyde that further consideration of Section 19 
be postponed until tomorrow morning at nine o'clock. 

Mr. Van Buskirk: I have desired that if the gentleman from 
Hyde would give way, to offer the motion to the effect that this 
Section 19 of the amendment be referred back to the Committee 
for Turther consideration to report, perhaps at two o'clock tomorrow. 

A Voice: No, we do not want it referred back to the Com- 
mittee Tor further consideration. 



TENURE OF OFFICE 405 

Voices from different parts of the hall "No. no." 

Mr. Van Buskirk: I was going to add that if they have the 
power and we think they have, that they so amend that Section 19 
as so that we may avoid that one election that all the officers/both 
county and State may be elected trie same time and that it would 
behoove the Committee to consider it a little further; perhaps there 
has been some little additional light found by the Committee upon 
this since it was reported. 

Mr. Hole: The motion before the House now is to postpone 
this until tomorrow morning and for one I would like to hear from 
every gentleman upon this very question. I don't think there is 
any conflict to it and we would like to hear from every member of 
this Convention upon this very important question. 

Mr. Price: I want the gentlemen of this Convention to have 
an opportunity to study this provision in this Schedule Report. 
I have been absent to North Dakota ; I want this courtesy shown 
so that I can have an opportunity to study it so that I can vote 
intelligently. 

Mr. Wescott: It seems that we have had this letter before 
us four or five days. I am ready to vote tonight as well as to- 
morrow morning. 

Mr. Williams: I am ready to vote upon this proposition now, 
some of these gentlemen have been away considering other matters. 
I would like that they have time to consider it if they desire it. 

The President: I think that Rule 6 determines this question 
that is, the motion made by the gentleman from Hyde to postpone 
consideration of this question until tomorrow takes precedence 
of the motion to commit. The question then before the Convention 
is, that further consideration of this matter be postponed until 
tomorrow morning at nine . o'clock. Those favoring the motion 
please make it known by saying aye; and those opposed by saying 
no. The ayes appear to have it ; the ayes have it ; the further con- 
sideration of the motion to adopt Section 19 and the amendments 
thereto is postponed until tomorrow morning at nine o'clock. 

Mr. Hole: I move you that Section 20 be adopted. 

Which motion received a second. 

Mr. Hartley: I would move that Section 20 by deterred until 
tomorrow morning. Its form depends upon the decision of the 
Convention in regard to 19. 



406 SOUTH DAKOTA DEBATES, 1889 

Mr. Hole: I will withdraw the motion. I think that that is 
proper. 

Mr. Hole: I move the adoption of Sections 21 and 22. 

Which motion received a second. 

The Clerk: SEC. 2 1 . The following form of ballot is adopted: 

Constitutional Ticket. 

INSTRUCTIONS TO VOTERS. 

All persons desiring to vote for the Constitution or for any of 
the articles submitted to a separate vote, may earase the word 
"No". 

All persons who desire to vote against the Constitution or any 
articles separately submitted, may erase the word "Yes". 

For the Constitution. Yes. No. 

For Prohibition. Yes. No. 

For Minority Representation. Yes. No. 

For. as temporary seat of government. 

For Governor. 



For Lieutenant Governor 
For Secretary of State. 
For Auditor. 
For Treasurer. 
For Attorney General. 
For Superintendent of Public Instruction. 
For Commissioner of School and Public Lands. 
For Judges of the Supreme Court. 



First District... 



SCHEDULE AND ORDINANCE 407 

Second District 

Third District 

For Judge of the Circuit Court Circuit . 

For Representatives in Congress. 



For State Senator. 

For Representatives in the Legislature. 
For County Judge. 



SEC. 22. This Constitution shall be engrossed, and after adop- 
tion and signing by the Convention shall be delivered to Hon. A. 
J. Edgerton, the President of the Constitutional Convention for 
safe keeping, and by him to be delivered to the Secretary of State 
as soon as he assumes the duties of his office, and printed copies 
thereof shall be prefixed to the books containing the laws of the 
State and all future editions thereof. 

The President of this Convention shall also supervise the mak- 
ing of the copy that must be sent to the President of the United 
States ; said copy is to be certified by the President and Chief Clerk 
of this Convention. 

The President: The question before the Convention is tin- 
adoption of Sections 21 and 22 of the Schedule report. Those 
favoring this motion as stated make it known by saying aye ; those 
opposed, ;'f any, by saying no. The ayes appear to have it; the 
ayes have it and Sections 21 and 22 are adopted. 

Mr. Kellam: As from the report that is now being coni-idm-d 
as printed, this seems to be the last section of the report. I drsin- 
to say before the report is closed and acted upon by the Convention 
that the Joint Commission at Bismarck, by resolution, agreed to 
recommend certain provisions to be inserted in the Schedule ot the 
respective Constitutions of North Dakota and South Dakoi 
only speak of it now so that these matters may be comi<U 
i onni't tion with tin- Schedule. 

Mr. Hole: I would think if tlii-n- is i.thi-r matters t In- con- 



'408 SOUTH DAKOTA DEBATES, 1889 

sidered in connection with the Schedule, if those other matters are 
ready, it would be well to report them now so that they can be 
considered. 

Major Kellam: The recommendation of the Joint Commission 
is dependent upon and follows the agreement that has been made 
by the Joint Commission and applies exclusively to the arrangement 
that was made by that Joint Commission in reference to the dis- 
tribution of the records of the Territory of Dakota and if I might do 
so, as the hour is getting well advanced, and for reasons that you 
will all understand when I suggest that copies of this agreement may 
possibly appear in the morning papers of both Sioux City and his 
city. There would be an impropriety in that agreement appearing 
in the newspapers before its formal presentation to this Convention. 
I would like to present the agreement to this Convention, so as to 
save any violation of propriety that might occur from publication 
of this prior to its being formally presented to this Convention. 
And if it should be satisfactory to the Convention, having already 
disposed of this report of this Committee on Schedule so far as 
printed. To receive this report now, it would put the matter then 
in shape so that it might properly be published tomorrow. 

Mr. Williams: T would move that the report be received. 

The President: It does not need any motion. The gentleman 
from Brule is in order. 

The report of the Joint Commission was received by the Con- 
vention as follows 

WHEREAS, By an Act of Congress, approved February 22, 
1889, entitled "An Act to Provide for the Division of Dakota into 
two States, and to Enable the People of North Dakota, South 
Dakota, Montana and Washington to form Constitutions and State 
governments and to be admitted into the Union on an equal footing 
with the original States and to Make Donation of Public Lands to 
Such States." It was among other things provided that when the 
Constitutional Convention of North Dakota and the Constitutional 
Convention of South Dakota, which by said Act were duly provided 
for and authorized, should assemble and organize as in said Act 
provided, it should be and become the duty of said Conventions 
respectively to appoint a Joint Commission to be composed of not 
less than three members of each Convention, whose duty it should 
be to assemble at Bismarck, the present seat of government of said 
. Territory and agree upon an equitable division of all property be- 
longing to the Territory of Dakota, the disposition of all public 
records and also, adjust and agree upon the amount of the debts 



REPORT OF JOINT COMMITTEE 409 

and liabilities of the Territory, which shall be assumed and paid by 
each of the proposed states of North Dakota and South Dakota, and 

WHEREAS, The said Constitutional Conventions of North Da- 
kota and South Dakota having been duly elected and assembled 
and organized in pursuance of and as provided in said Act did, as 
therein required and provided and for the purposes therein specified, 
appoint a Joint Commission, consisting of not less than three mem- 
bers of each Convention , towit : Seven members of each Convention 
as follows, to-wit: 

E. W. Camp, B. F. Spalding, Alex Griggs, Andrew Sandager, 
W. E. Purcell, Harvey Harris and J. W. Scott., appointed by the 
Convention of North 'Dakota, and A. G. Kellam, V. T. McGilly- 
cuddy, Henry Neill, E. W. Caldwell, William Elliott, Charles H. 
Price, and S. F. Brott, appointed by the Convention of South Da- 
kota, and 

WHEREAS, The said Joint Commission so appointed and com- 
posed, having duly assembled at Bismarck, as by said Act provided, 
and being now and here so assembled, and having as such Joint 
Commission duly and carefully considered the several matters which 
by said Act are referred to them for disposition and agreement, do 
now adopt and confirm the following agreement, compact and con- 
vention, that is to say: 

I. 

This agreement shall take effect and be in force from and after 
the admission into the Union as one of the United States of Amer- 
ica, of either the State of North Dakota or the State of South 
Dakota. 

II. 

The words "State of North Dakota" wherever used in this 
Agreement shall be taken to mean Territory of North Dakota in i ase 
the State of South Dakota shall be admitted into the Union prior 
to the admission into the Union of the State of North Dakota ; and 
the words "State of South Dakota", wherever used in this Agree- 
ment shall be taken to mean the Territory of South Dakota in case 
the State of North Dakota shall be admitted into the Union prior 
to the admission into the Union of the State of South Dakota. 

III. 

Upon the taking effect of this Agreement all tin- right, title, 
claim and interest of tin- Territory of Dakota in and to ;m v public 
institutions, grounds or buildings situated within the limits t the 
proposed State of North Dakota, as such limits are defined in -aid 
Act of Congress, shall vest in said State of North Dakota, and -aid 
State of North Dakota shall assume and pay all bonds issued In- 
fertile purchase, construction, a- pairs or maintenance ot such 



410 



SOUTH DAKOTA DEBATES, 1889 



public institutions, grounds or buildings and shall pay all warrants 
issued under and by virtue of that certain Act of the Legislature 
Assembly of the Territory of Dakota, approved March 8th, 1889, 
entitled, "An Act to Provide for the Refunding of Outstanding 
Warrants Drawn on the Capitol Building Fund." 

IV. 

Upon the taking effect of this Agreement, all right, title, claim 
and interest of the Territory of Dakota in and to any public insti- 
tutions, grounds or buildings situated within the limits of the pro- 
posed State of South Dakota, as defined in said Act of Congress, 
shall vest in said State of South Dakota. And said State of South 
Dakota shall assume and pay all bonds issued by the Territory of 
Dakota to provide funds for the purchase, construction, repairs 
or maintenance of such public institutions, grounds or buildings. 

V. 

That is to say: 

The State of North Dakota shall assume and pay the following 

bonds and indebtedness, to-wit: 

Bonds issued on account of the Hospital for Insane at 
Jamestown, North Dakota, the face aggregate of 
whichis $266,000 00 

Bonds issued on account of the North Dakota Univer- 
sity at Grand Forks, North Dakota, the face ag- 
gregate of which is 96, 700" 00 

Bonds issued on account of the Penitentiary at Bis- IfJIW 

marck, the face aggregate of which is 93,600 00 

Refunding Capitol Building Warrants, dated April 1, 

1889 83,507 46 

And the State of South Dakota shall assume and 
pay the following bonds and indebtedness, to-wit: 

Bonds issued on account of the Hospital for the Insane 
at Yankton, South Dakota, the face aggregate of 
whichis 210,000 00 

Bonds issued on account of the School for Deaf Mutes 
at Sioux Falls, South Dakota, the face aggregate 
ofwhichis 51,000 00 

Bonds issued on account of the University at Vermil- 

lion, South Dakota, the face aggregate of which is 75,000 00 

Bonds issued on account of the Penitentiary at Sioux 
Falls, South Dakota, the face aggregate of which 
is 94,300 00 

Bonds issued on account of the Agricultural College at 
Brookings, South Dakota, the face aggregate of 
whichis 97,000 00 

Bonds issued on account of the Normal School at Mad- 
ison, South Dakota, the face aggregate of which is 49,400 00 



REPORT OF JOINT COMMITTEE 411 

Bonds issued on account of the School of Mines at 
Rapid City, South Dakota, the face aggregate of 
which is ..'. 33,000 00 

Bonds issued on account of the Reform School at 
Plankinton, South Dakota, the face aggregate of 
whichis 30,000 00 

Bonds issued on account of the Normal School at 
Spearfish, South Dakota, the face aggregate of 
whichis 25,000 00 

Bonds issued on account of the Soldiers' Home at Hot 

Springs, South Dakota the face aggregate of which 45 ,000 00 

VI. 

Each State shall receive all unexpended balances of the pro- 
ceeds of the bonds which it so assumes, whether such balances have 
been covered back into the treasury or not. 

VII. 

All furniture, fixtures, provisions, appurtenances and ap- 
pliances, tools, implements, - and other movable property of the 
Territory of Dakota, situate in or used in connection with any of 
the said public institutions, grounds or buildings, shall become and 
be the property of the State or Territory in which such grounds, 
buildings or institutions may be situated, except as herein specifi- 
cally provided. 

VIII. 

In case of loss in whole or part of any of the property of the 
Territory of Dakota prior to the taking effect of this agreement, 
the State in which such property would have \iested if the same had 
not been destroyed, or in which such property so injured shall vest, 
shall receive any sums pay able upon policies of insurance issued upon 
such property ; and if loss not covered by insurance occurs on any 
of such property, such loss shall be borne by the State in which it is 
hereby agreed that such property would vest on the taking effect 
of this agreement. 

IX. 

Upon the taking effect of this agreement all unearned premiums 
of insurance shall vest in the State or Territory in which the prop- 
erty insured thereby shall vest. 



The States of North Dakota and South Dakota shall pay one- 
half of all liability now existing or hereafter and prior t<> the taking 
effect of this agreement incurred, except those lurctofore or here- 



412 SOUTH DAKOTA DEBATES, 1889 

after incurred on account of public institutions, grounds or public 
buildings, except as otherwise herein specifically provided. 

XL 

Each of said States shall succeed to all rights of the Territory 
of Dakota upon contracts for public works within such State or 
upon bonds given to secure the performance of such contracts. 

XII. 

All other bonds issued prior to the taking effect of this Agree- 
ment upon which is a cause of action has or shall prior to the tak- 
ing effect of this agreement accrue to the Territory of Dakota shall 
be sued upon by the State of North Dakota, and it is hereby made 
the duty of said State to sue thereon, and one-half of the penalties 
or damage collected by said State thereon shall be paid over to 
the other State, and the costs of such suit or collection shall be 
borne equally by said States, save as it may be necessary to apply 
such proceeds otherwise in order to carry into effect the provis ons 
of Article XXI of this agreement. 

XXII. 

The furniture, fixtures, appliances and appurtenances used in 
and about or pertaining to the public offices of the Territory shall 
be the property of the State within the proposed limits of which 
said offices are now kept. 

XIV 

The Territorial Library, including such books and volumns as 
may be added thereto prior to the taking effect of this agreement, 
shall be the property of the State of South Dakota. 

XV. 

One-half of all the copies of the Complied Laws of the Territory 
of Dakota, Revised Codes and of all Session Laws, printed Journals 
of the House and Council of the Legislative Assembly of said Ter- 
ritory, and of other printed reports of offices of the Territory (ex- 
cept those composing a part of said library), re-maining undisturbed 
or undisposed of according to law at the taking effect of this agree- 
ment, shall be delivered on demand to the proper authorities of the 
State of South Daokta. 

XVI. 

All arms, ammunition, quartermaster's and ordnance stores 

distributed to and now in possession of militia companies of the 

Territory of Dakota shall remain in their possession, and all the 

right, title and interest of the Territory of Dakota in and to such 

arms, ammunition and stores shall vest in the State in which the 



REPORT OF JOINT COMMITTEE 415 

armories or headquarters of such companies shall be situated. All 
45-caliber rifles and ammunition of same caliber stored in Capitol 
at Bismarck and 45-caliber rifles heresofore issued to Company F, 
First Regiment, at Bismark, shall be the property of North Dakota' 

XVII. 

All other arms, ammunition, quartermaster's and ordnance 
stores shall be equally divided between the States of South Dakota 
and North Dakota. 

XVIII. 

All other items of personal property and miscellaneous effects 
belonging to the Territory except tbe Territorial Library and the 
Territorial records and archives, shall be divided as nearly equally 
as possible between North and South Dakota. 

XIX. 

The State of South Dakota shall pay the State of North Dakota 
forty-six thousand five hundred dollars, on account of the excess 
of Territorial appropriations for the permanent improvement of 
Territorial institutions which under this agreement will go to 
South Dakota, and in full of the undivided one-half interest of North 
Dakota in the Territorial Library, and in full settlement of unbal- 
anced accounts, and of all claims against the Territory, of whatever 
nature, legal or equitable, arising out of the alleged erroneous or 
unlawful taxation of Northern Pacific railroad lands and the pay- 
ment of said amount shall discharge and exempt the State of 
South Dakota from all liability for or on account of the sev- 
eral matters hereinbefore referred to, nor shall either State be 
called upon to pay or answer to any portion of liability here- 
after arising or accruing on account of transactions heretofore 
had, which liability would be a liability of the Territory of Da- 
kota had such Territory remained in existence, and which liability 
shall grow out of matters c ounce ir<l with any public institutions 
grounds or buildings of the Territory situated or located within 
the boundaries of the other State. 



Neither State shall pay any portion of the liability of the Ter- 
ritory arising out of the erroneous fixation of property situated in 
tlu.- other State. 



A final adjustment of aecounts shall be made upon t he following 
ha. is: North Dakota shall he rhargnl with all .-inns paid on ac- 
count of the public institutions, grounds, or buildings located with- 
in its boundaries on account of the Current appropriations since 



414 SOUTH DAKOTA DEBATES, 1889 

March 8th, 1889: and South Dakota shall be charged with all sums 
paid on account of public institutions, grounds or buildings located 
within its boundaries on the same account r nd during, the same 
time. Each State will be charged with one-half of all other ex- 
penses of the Territorial government during the same time. All 
moneys paid into the Treasury dur ng the period from March 8th, 
1889, to the time of the taking effect of this agreement by any 
county, municipality or person within the limits of the proposed 
State of North Dakota shall be credited to North Dakota; and all 
such sums paid into said Treasury within the said time by . ny 
county, municipality or person within the limits of the proposed 
State of South Dakota shall be credited to the State of South Da T 
kota ; except that any and all taxes on gross earnings paid into said 
Treasury by railroad corporations since the 8th day of March based 
upon the earnings of the years prior to 1888, under and by virtue of 
the Act of the Legislative Assembly of the Territory of Dakota 
approved March 7th, 1889, and entitled "An Act Providing for 
the Levy and Collection of Taxes upon Property of Railroad Com- 
panies in this Territory", being Chapter 107 of the Sersion Laws 
of 1889 (that is, the part of such sums going to the Territory), shall 
be equally divided between the States of North Dakota and South 
Dakota. And all taxes heretofore or hereafter paid into the said 
Treasury under and by virtue of the Act last mentioned, based on 
gross earnings of the year 1888, shall be distributed as already 
provided by law, except that so much thereof as goes to the Ter- 
ritorial treasury shall be divided as follows: North Dakota shall 
have so much thereof as shall be or has been paid by railroads within 
the limits of the proposed State of North Dakota, and South Dakota 
so much thereof, as shall be or has been paid by railroads within the 
limits of the proposed State of South Dakota. Each State shall be 
credited, also with all balances of appropriations made by the Seven- 
teenth Legislative Assembly of the Territory of Dakota, for the 
account of the public institutions, grounds or buildings located with- 
in its limits remaining unexpended on March 8th, 1889. .If there 
shall be any indebtedness except the indebtedness represented by 
the bonds and refunding warrants hereinbefore mentioned, each 
State shall at the time of such final adjustment of accounts, assume its 
share of said inedbtedness as determined by the amount paid on 
account of the public institutions, grounds or buildings of such 
State in excess of the receipts from counties, municipalities, rail- 
road corporations or -persons within the limits of said State as pro- 
vided in this Article ; and^if there should be a surplus at the time of 
such final adjustment each State shall be entitled to the amount re- 
ceived from counties, municipalities, railroad corporations or persons 
within its limits, over and above the amount charged to it. 

XXII. 

The payment from South Dakota to North Dakota shall be 



REPORT OF JOINT COMMITTEE 415 

made by South Dakota's assuming North Dakota's share or current 
liabilities at the time of the final adjustment, to the extent of South 
Dakota's indebtedness under this agreement, to North Dakota; 
and if any balance shall remain due to North Dakota from South 
Dakota, payment of said balance shall be provided for by the first 
Legislature ofjSouth Dakota. 

XXIII. 

Upon the taking effect of this agreement all claims for taxes 
due the Territory of Dakota shall become the property of and may 
be collected by the State or Territory within the limits whereof the 
counties are situated against which such taxes stand charged upon 
the Territorial Treasurer's books. 

But this Article shall not be held to refer to or govern the dis- 
posal of any taxes to be paid by railroad corporations which are 
specifically provided for by Article XXI thereof. 

XXIV. 

All other claims and demands of the Territory of Dakota out- 
standing when this agreement shall take effect, the collection 
whereof is not hereinbefore provided for, shall be sued upon and 
collected by the State of South Dakota, and the costs of suits so 
brought and the amounts collected shall be divided equally between 
the two States of North Dakota and South Dakota. 

And said Commission so assembled and acting under and by 
virtue of the authority upon it by said Act of Congress conferred, 
further agrees as follows: 

1. 

The following books, records and archives of the Territory of 
Dakota shall be the property of North Dakota, to-wit ; 

All records, books and archives in the offices of the Governor 
and Secretary of the Territory (except records of Articles of Incor- 
poration of Domestic Corporations, returns of election of delegates 
to the Constitutional Convention of 1889 for South Dakota, returns 
of elections held under the so-called Local Option Law in counties 
within the limits of South Dakota, bonds of Notaries Public ap- 
pointed for counties within the limits of South Dakota, pa pi 
luting to the organization of counties situated within tin- limits <>t 
South Dakota, all ofwhu h records and archives are a part of the 
records and archives of said Secretary's offu c ; oucpting a!> 
census returns from counties situated within tin- limit- of South 
Dakota and papers relating to requisitions issued upon the ap- 
plication of officers of counties situated wit bin tin- limits of South 
Dakota, all of which are part of the records and an hives of sail 
Governor's office). 



416 SOUTH DAKOTA DEBATES, 1889 

And the following records, books and archives shall also be 
the property of the State of North Dakota, to-wit: 

Vouchers in the office or in the custody of the Auditor of this 
Territory relating to expenditures on account of public institutions, 
grounds or buildings situated within the limits of North Dakota; 
one Warrant Register in the office of the Treasurer of this Territory, 
being the record of warrants issued under and by virtue of Chapter 
Twenty-four of the laws enacted by the Eighteenth Legislative 
Ajsemb y of Dakota Territory; all letters, receipts and vouchers in 
the same office now filed by counties and pertaining to counties 
within the limits of North Dakota; paid and cancelled coupons in 
the same office representing interest on bonds which said State of 
North Dakota is to assume to pay ; reports of gross earnings of the 
year 1888 in the same office, made by corporations operating lines 
or railroads situated wholly or mainly within the limits of North 
Dakota; records and papers of the office of the Public Examiner of 
the Second District of the Territory; records and papers of the 
office of the Second District Board of Agriculture ; records and papers, 
in the offite of the Board of Pharmacy of the District of North. 
Dakota. 

All records, books and archives of the Territory of Dakota 
which is not herein agreed shall be the property of North Dakota, 
shall be the property of South Dakota. 

The following books shall be copied and the copies shall be the 
property of North Dakota and the cost of such copies shall be borne 
equally by the said States of North Dakota and South Dakota, that 
is to say: 

Appropriation Ledger for years ending November, 1889, and 
1890, one volume; 

The Current Warrant Auditor's Register, one volume; 
Insurance Record for 1889, one volume ; 
Treasurer's Cash Book "D"; 
Assessment Ledger "B". 

Dakota Territory Bond Register one volume ; 
Treasurer's Current Ledger one volume. 

The originals of the foregoing volumes, which are to be copied^ 
shall at any time after such copying shall have been completed, be 
delivered on demand to the proper authorities of the State of South 
Dakota. 

All other records, books and archives which it is hereby agreed 
shall be the property of South Dakota shall remain at the Capitol 
of North Dakota until demanded by the Legislature of the State 
of South Dakota, and until the State of North Dakota shall have 
had a reasonable time after such demand is made to provide copies 
or abstracts or such portions thereof as the said State of North 
Dakota may desire to have copies or abstracts thereof. 

The State of South Dakota may also provide copies or abstracts 
of such records, books and archives which is agreed, shall be the 



REPORT OF JOINT COMMITTEE 417 

property of North Dakota as said State of South Dakota shall 
desire to have copies or abstracts of. 

The expense of all copies or abstracts of records, books and 
archives which it is herein agreed may be made shall be borne 
equally by said two States. 

II. 

And this Commission further agrees that the two Commissions 
composing the same shall recommend to their respective Conventions 
for adoption as a part of the Schedule of the proposed Constitution 
for the State of North Dakota, and the State of South Dakota, re- 
spectively, the following, that is to say: 

"The agreement made by the Joint Commission of the Con- 
stitutional Conventions of North and South Dakota concerning the 
records, books, and archives of the Territory of Dakota is hereby 
ratified and confirmed which agreement is in the following words, 
that is to say." (And then shall follow the words of the Aritcle 
last above written.) 

In tesitmony and confirmation whereof, the said Joint Com- 
mission, now assembled and acting as such, has caused this agree- 
ment to be signed and executed by and on its behalf and as its 
acting deed, and witnessed by the names hereto by each subscribed 
and the members comprising said Joint Commission as hereinbefore 
cited. 

Done at Bismarck, Dakota, this I3st day of July, A. D., 1889. 

A. G. KELLAM, 
HENRY NEIL, 
W. ELLIOTT, 
S. F. BROTT, 
BURLEIGH F. SPALDIXG, 
ANDREW SANDAGER, 
HARVEY HARRIS, 

V. T. McGlLLYCUDDY, 

E. W. CALDWELL, 
CHARLES H. PRICE, 
E. W. CAMP, 
ALEX GRIGGS, 
W. E. PURCELL, 
JOHN W. SCOTT. 

Mr. Kellam: Shall the report be read? 

The President: You are the better judge than I. 

Mr. Kellam: I do not care about it myself only that it lias 
been properly presented in Convention so there will be no violation 
of propriety. 

Mr. Lee: I think it would be well to hear part of it read. 

Mr. Caldwell: There will neeessarilv be considerable time 



418 SOUTH DAKOTA DEBATES, 1889 

consumed in consideration of the several points in this agreement 
and this would carry this session through to a later hour than I be- 
lieve those members of the Convention, at least those members of 
the Convention who have just returned from Bismarck, without 
having had any sleep within the last thirty-six hours would care to 
remain here. I would therefore move you that this report be re- 
ported as received and that the reading be postponed until tomorrow 
morning. 

This motion received a second. 

Mr. Caldwell: I would say in connection with this fact that 
tomorrow morning's Press will contain a complete copy of this 
and members of the Convention will have an apportunity to read 
it and understand it more completely than would be the case by 
hearing it read. 

Mr. Peck: It will appear in our Journal tomorrow morning 
will it not? 

The President: Those favoring the receiving of the report of 
the Joint Commission this evening and postponing the reading of 
the same until tomorrow morning, say aye. Those opposed say 
no. The ayes appear to have it ; the ayes have it and the motion 
prevails. 

Mr. Peck: I move we adjourn until nine o'clock tomorrow 
morning. 

Which motion prevailed and the Convention stood adjourned. 
Hall of the Constitutional Convention, Sioux Falls, Dakota, August 
2nd, 1889. 

Convention called to order at nine o'clock A. M. 

President Edgerton in the chair. 

Prayer by Chaplain Wakefield. 

We marvel to ourselves, O God our Heavenly Father when we 
consider Thy infinite love manifested toward us We come before 
Thee this morning to thank Thee for the favorable auspices under 
which we meet and we ask Thee, that in this, our closing work for 
the great commonwealth that we represent that nothing will be 
done that will mar or impede the future peace and prosperity of our 
beloved State. 

May the chief desires of our hearts this morning be. to honor 
Thee and serve our fellowmen, not only those who are today watch- 
ing the progress of our work, but those who are to follow in our 
footsteps. 

O Lord, give us this spirit this morning, we ask in Jesus' name. 
AMEN. 



JUNKET TO SPIRIT LAKE 419 

The President The clerk will read the Journal of the pre- 
ceding day. 

The Clerk reads the Journal. 

Mr. Spooner: I move that we dispense with further reading 
of the Journal. 

Which motion received a second. 

The President: It is moved and seconded that we dispense 
with further reading of the Journal. Those favoring this motion 
make it known by saying aye. The ayes have it. Further read- 
ing of the Journal is dispensed with. 

The President: I suggest to the Convention that I have a 
communication here this morning from the, Superintendent of the 
Burlington Railroad, which the Clerk will read to the Convention. 
I thoughtlessly ommitted it last night and it would be proper for 
the Convention to take some action one way or the other at once. 
Either by accepting or refusing to accept it or to refer it to a Com- 
mittee so that something can be done with this. 

The Clerk reads the communication as follows: 

Sioux Falls, Dak., Aug. 1, '89. 
HON. A. J. EDGERTON, 

President Constitutional Convention. 

On behalf of the management of the Burlington, Cedar Rapids 
and Northern Railway, I extend to you and the members of the 
Constitutional Convention and their laides, the courtesy of our road 
from Sioux Falls to Spirit Lake and return. 

Yours most respectfully, 

THOS. H. BROWN. 

The President: What will the Convention do with the com- 
munication? 

Mr. Davies: I move that the invitation that was extended to 
the Convention be accepted for Saturday evening. 

Motion received a second. 

The President: It is moved and seconded that we accept t he- 
invitation of the Burlington Railway Co. for Saturday evening. 
Those favoring the motion make it known by saying aye; there 
opposed, if any, by sayng no. The ayes have it and the motion 
prevails. 

The President : I would suggest to the Convention still further ; 
this morning I met with the Senate. Committee sent out 1.- 
examine the question of irrigation, Senators Stewart and K 
They informed me that they could only spend the day in Sioux 



420 SOUTH DAKOTA DEBATES, 1889 

Falls, they would be glad to meet a few gentlemen from the Con- 
vention, not many but a few gentlemen from localities scattered 
over South Dakota who could give them some information in ref- 
erence to this question that they might embody it in their report 
and if convenient to this Convention they would meet us here at 
two o'clock this afternoon. I said to them that undoubtedly the 
Convention would be glad to accept of their proposition and that 
seven or eight gentlemen would be selected in some manner to an- 
swer such inquiries as they might suggest and present such infor- 
mation as they might desire. 

Mr. Spooner: I move that the proposition be accepted. 

Which motion received a second. 

The President: It is moved that the Convention extend to 
the Senate Committee a cordial invitation to meet us here this after- 
noon at two o'clock. Those favoring the motion make it known by 
saying aye ; those opposed by saying no. The ayes have it and the 
motion prevails. 

Mr. Van Buskirk: I move that a committee be appointed by 
the Chair in accordance with his suggestion. 

The President : It is moved that the Chair appoint a committee 
to furnish this information for the Senate Committee. Those 
favoring the motion make it known by saying aye ; the opposition 
by saying no. The motion prevails. 

The President: I would state to the Convention that I have 
received an answer to the memorial in reference to the School lands 
which the Clerk will read. 

Clerk reads : 

Executive Mansion, July 9th. 

DEAR SIR: 

I am directed by the President to acknowledge receipt of your 
letter of the 2nd inst., enclosing memorial passed by the Consti- 
tutional Convention, both of which have been referred to the Secre- 
tary of the Interior. 

I have the honor to remain, 

Very respectfully, 

O. L. PRUVEN, 
Assistant Secretary. 

The President: Unless otherwise "ordered by the Convention 
I will direct the Secretary to read the list of Committees to ascertain 
what reports are yet to be made. 

The Clerk: The Congressional and Legislative Apportionment. 



ROUTINE 421 



The Chairman: The report is read. 

Judiciary. 

The Chairman: No further report. 

Schedule. 

No further report. 

Name, Boundaries and Seat of Government. 

No further report. 

State County and Municipal Indebtedness. 

No further report. 

Executive and Administrative. 

No further report. 

Legislative. 

No further report. 

Bill of Rights. 

No further report. 

Election and Suffrage. 

Nothing more. 

Federal Relations. 

No further report. 

Educat on and School Lands. 

No urther report. 

Municipal Corporations. 

No further report. 

Corporations Other than Banking and Municipal. 

Nothing further. 

County and Township Organizations. 

Nothing further. 

Revenue and Finance. 

No further report. 

Public Accounts and Expenditures. 

Nothing further. 

State Institutions and Public Buildings. 

No further report. 

Mines, Mining and Water Rights. 

Nothing further. 

Roads, Bridges and Other Internal Improvements. 

No furthe report. 

Exemptions. 

Nothing further. 

Rights of Married Women. 



422 SOUTH DAKOTA DEBATES, 1889 

Nothing more. 

Banking and Currency. 

No further report. 

Military Affairs. 

Nothing further. 

Amendments and Revision of the Constitution. 

No further report. 

Printing. 

Report submitted. 

Seal. 

No further report. 

Miscellaneous Subjects. 

Nothing. 

Compensation of Public Officers. 

No further report. 

Arrangement and Phraseology. 

Will report this afternoon or tomorrow. 

Manufactures and Agriculture. 

No further report. 

Expenses of the Convention. 

Mr. Huntley: I would like to say to the members of the Con- 
vention that I hand in today the statement and if they find any 
inaccuracy that they will report it to the Committee. It does not 
agree very well. Some distances traveled are nearly one-sixth 
more. It is the desire that the members look over their reports 
and hand them to the Committee and if they find any error that 
they will do so as soon as it may be done. 

Engressment and Enrollment. 

The report is not ready. 

The President: I have designated this Committee to meet 
the Senatorial Committee at two o'clock this afternoon. I have, 
so far as I have known, tried to select men who have some practical 
experience with the question of irrigation. The Clerk will read the 
list. 

. The Clerk reads: 

Dr. McGillicuddy, of Pennington; Mr. Peck, of Hamlin; Dr. 
Spooner, of Kingsbury ; Mr. Couchman, of Walworth; Mr. Hall, 
of Sulley; Mr. Houlton, of Douglass; Mr. Eddy, of Miner; Mr. 
Murphy, of Hanson; Mr. Wood, of Spink; Mr. Cook, of Marshall; 
Mr. Wescott, of Deuel. 



PUBLICATION OF DEBATES 423 

The President: The next order of buisness will be the com- 
munication and presentation of petitions, next Unfinished Busi- 
ness of the preceding day, reports of Standing Committees ; reports 
from Select Committees; consideration of reports of select Com- 
mittees ; presentation of resolutions and propositions relating to the 
% Convention. 

Mr. Jolley: I offer the following resolution. 

RESOLVED: That the president of the Convention have the 
custody of the debates until the Legislature shall order and provide 
for their publication, and that he, with Hon. A. G. Kellam and Hon. 
II. F. Fellows, shall prepare the same for publication and cause the 
same to be published. 

The President : Is the Convention ready for the question ? As 
many as are of the opinion that the resolution be adopted, say aye; 
contrary minded say no. The ayes have it ;the resolution is adopted. 

The President: The next business in order will be the con- 
sideration of the balance of the report of the Committee on Schedule, 
beginning with Sections 19 and 20. 

Mr. Williams: By consent, the amendment thac was offered 
by myself was divided into two parts ;the first is that which changes 
the date from 1892 to 1891 affecting the term of office of the State 
officers and the Legislature and that which affects the judges I wish 
to withdraw with the consent of a second and of the Convention; 
the question before the House is that which changes the date from 
1892 to 1891 and effects the State officers and members of the Legis- 
lature making the term of office of the members of the Legislature 
expire in January, 1891. 

Mr. Jolley: This question I do not think is a very material 
one ; that is I do not think it is as material as the one we discussed 
last Friday afternoon ; still I think we had better be careful how we 
decide this question. The difficulty originating in the mind of the 
gentleman from Bon Homme and those who view the muti- 
actly as he does, is the question whether this is an election under this 
Constitution or not, if it is an election under this Constitution 
then there can be no question as to the terms of the State officers. 
And if it is not an election under this Constitution I donot know what 
kind of an election it is. The question is dispursed, (disposed of) that is, 
(if there is) any doubt if we look at what this Convention has done al- 
ready relative to the Schedule report and if the members will turn to 
Section 7 which was diccussed fourteen or fifteen hours last Kridav, 
they will find a prvi>ii-n which jt-ts thi.s matter at rest. "The 



424 SOUTH DAKOTA DEBATES, 1889 

election herein provided for shall be under the Constitution here- 
with submitted." There can be no question about that language; 
it is plain and without ambiguity. And the Convention last Fri- 
day afternoon decided that this election on the first day of October 
shall be an election under this Constitution. Now. Mr. President, 
if that is correct, then the conclusion is irresistable that this being 
an election under the Constitution, these officers are provided for 
under the Constitution; and the Governor and State officers shall 
be elected for two years. The Omnibus Bill says we can provide 
for a full set of officers. Then where do we get any other provision 
for electing these officers ; there is not a single word as to what 
officers we shall elect ; not a single provision or word in it stated as to 
what officers we shall elect ; then it comes back to this Constitution 
it having provided that such and such officers shall be elected; 
then it follows as a conclusion that they shall be elected as provided 
by the terms of this Constitution and it shall govern. There is 
nothing concerning a half year or fourteen months or twenty months ; 
the Constitution says that we shall have such and such officers and 
that same Constitution says that they shall be elected for two years ; 
then if the Constitution has made the rule that this first election 
shall be under the Constitution there can be no question as to that. 
Then Sir, so far as the judicial officers are concerned there is no 
particular ambiguity, no particular doubt, and no uncertainity ; 
the Constitution says that under the provisions of this Constitution 
judges shall be elected who shall hold office for four years after the 
first election; that election is under the Constitution because we 
cannot under any provision of the Organic Act elect any judges; 
we must act under the Constitution. In the proceedings yesterday 
we provided such and such judges now if we do not get these State 
officers from that Constitution we do not get them any place. If we 
elect those officers and those judges under the provisions of the 
Constitution all of the terms provided for in that Constitution must 
be fully carried out. It is that Constitution or nothing. 

This Schedule is a very important thing in its place, but after 
this Constitution is adopted and we are admitted as ,a State into 
this Union, I doubt whether a person will say anything more about 
this Schedule. This is a bridge to carry us over from a Territorial 
to a State government; only that and nothing more; having done 
its work it ends right there. Again I wish to call the attention of 
the Convention to this fact ; it is a very serious legal question. There 



JOLLEY ox TENURE 42S 



may be complications that will arise, if you deviate from that Con- 
stitution in a single particular. This is a violent presumption, Mr. 
President, but I will make the assumption, suppose I was elected 
Governor at the election on the first dav of October 1889 (laughter) 
and that you go to work and amend this Schedule as provided by 
this amendment, and the gentleman is elected next year; the first 
Tuesday of January 1891 he comes to me and says, "Here, old man 
Jolley, your time's up, walk! I say "No Sir, Mr. Williams, the 
Constitution that the people adopted on the first day of October 
says that I shall hold office for two years ; for two years I am going 
to remain here or until such time as the Supreme Court of South 
Dakota says "Walk", then I will go and not until then." This 
complication is not far-fetched, it stares us in the face and we a~e 
liable to meet if it we go to work and elect a man governor, if you 
elect me Governor for two years, I serve my time out. It is easily 
settled, this difficulty ; the other way you have that complication. 
The logical conclusion is that we elect a Governor, no doubt about 
that; we shall elect that Governor for two years, no doubt about 
that. Now this Convention goes to work in this Schedule and says, 
we shall elect for fourteen months, if the amendment is adopted. 
Then in that event I say if we come before the Supreme Court, the 
Supreme Court will say "You have said in Section 7 that this elec- 
tion is an election under the provisions of this Constitution ; then 
the provisions of this Constitution shall govern it in every respect. 
There is no question in my mind about it, Mr. President, gentlemen 
will differ; we are constituted differently. There is a clear, plain 
provision in the Constitution as to what shall be the terms of office 
and when we leave the Constitution we are at sea. 

Mr. Dickinson: I would like to say a word on this because 
I have a good deal of interest in it and on the side of those who have 
offered the amendment that is, in my heart, my preference. I was 
a member of the Schedule Committee and also of the sub-commit too 
who passed upon this provision and When we first agreed it was that 
the terms of the officers should be a short term and that there should 
be a general election of all officers in 1890. I was satisfied with that 
and gavo very little attention to it but afterwards when the other 
members of the sub -committee and the lawyers and myself eanie t<> 
the conclusion that if would be illegal to have the u-rin t\v> 
and have a general election of Male off'u ers in 1891. Again I op- 
posed it. Then I gave it more caivi'u! i onsidorati<.n and < ame to 



426 SOUTH DAKOTA DEBATES, 1889 

the conclusion for the time being that they were right ; it would have 
to be two years' terms and the election of State officers in the odd 
year. I concurred with the report and submitted it to the Conven- 
tion all my sympathies are with the other side. I talk on this side 
because I think we are obliged to take this position. The terms 
"under the provision of the Constitution" and the term "after the 
admission of the State into the Union" ; I ask the closest attention 
of the Convention to these two terms. Unquestionably these terms 
are used in the Constitution of 1885 "after the State is admitted 
into the Union." It provides for the election of the judges and 
other officers at the first election held under the Constitution mani- 
festly they intended there a distinction between these two elections, 
election under the provisions of the Constitution, and the first 
election after the admission of the State into the Union. The ar- 
gument was based yesterday on the division of these terms, that 
this was not an election under this Constitution, the first election 
after the admission of the State into the Union would be an election 
under the Constitution. Mr. President, I would ask the Con- 
vention's attention to this. What was meant by the framers of 
the Constitution of 1885 by the expression, "under the provision 
of this Constitution? They said that the Judges should be elected 
under the provisions of the Constitution ; as a matter of history 
when were the Judges elected? As a matter of history when 
was the Constitution voted upon? The officers were elected 
then so when the Committee was appointed to call the election they 
understood that the first election was the election that the Con- 
stitution was voted upon. They were just exactly at the point we 
are today, and if that was an election under the Constitution, this 
is an election under the Constitution oh the first of October. If it 
is not an election under the Constitution it must be an election 
under the election law. The qualification of electors provided by 
the Constitution of 1885, for that election was not held, the first 
election in 1885 was not held under its provisions but under the 
Territorial law, just as ours will be this fall. But it was an election 
under the Constitution in this sense that it was an election to fill 
the offices for which the Constitution had made provisions ; all the 
State offices which it would be necessary to fill. We have a his- 
torical definition of what an election under the Constitution means 
that they had contemplated a distinction between that election 
and the first election after the State had been admitted into the 



MR. DICKINSON'S VIEWS 427 

Union, when county officers are to be elected. You will see at once 
that the framers of the Constitution of 1885 undoubtedly provided 
for two elections. One at which the State officers and judiciary 
should be elected and one at which the county officers should be 
elected. They provided for those elections. I say to the members 
of this Constitutional Convention that those distinctions are matters 
of history. You cannot possibly go behind them. 

Section 5 of article IX refers to county officers the question also 
of general election is referred to in Article VII Section 4 where it 
says, "All general elections shall be bi-ennial". I ask the attention 
of the gentlemen who are on the other side to that provision of that 
section. What is meant by that section of Article VII ? "All general 
elections shall be bi-ennial ?" Is it, as argued by the gentleman from 
Hand last night? The Convention contemplated a general election 
according to the definition which says for convenience it shall be 
understood all general elections shall be on even years. Well, will 
it necessarily follow all the elections shall be bi-ennial?. It would 
be like putting in a section saying that these terms shall never be 
less than two years because according to that definition it must 
come on even years. If I understand it, if that is put in it makes 
this difficulty possible, that when the even year comes around some- 
body would say this: "This is the general election, these State 
officers ought to be elected now if they are elected on the odd years 
therefore they put in this section providing that all other elections 
shall be bi-ennial. And that State elections also should be bi- 
ennial. They should come on the odd years. I deny that: You 
will find everywhere there is that provision for two elections. There 
is not a member on the floor this morning that doubts that if the 
State had been admitted under the Sioux Falls Constitution there 
would have been an election of State officers in 1885 and following 
in 1887 there would have been another election of State officers and 
in the even year there would have been an election of county officers. 
This is a matter of history. We know what year the Constitution 
was framed, what year they elected their first officers and if they 
had been admitted we know what year they would have gone into 
office. We know they would have held two years and tin 
would have been the year for the election of State officers. This 
prepares the way for an argument which to my mind is com lusive 
in this matter unquestionably. The Constitution <.i I.ss5 made it 
necessary that there shall be a general elcc ti<>n i-ai h \ tar On the 



428 SOUTH DAKOTA DEBATES, 1889 

odd year of State officers, on the even year of county officers and 
saying that it makes provision for it. That being so, we have a pro- 
vision distinctly made for two elections by the Constitution that 
we are sitting here to modify. Now, a change of the Constitution 
is contemplated by the amendment offered. To adopt that is 
actually to change the Constitution; it is surely an amendment to 
the Constitution ; it is a more complete change and radical change or 
amendment of the Constitution than anything that has been before 
offered here since the Convention has been in session. It is some- 
thing absolutely beyond our power. We remember that every 
member upon this floor has been arguing that we must be careful 
to not exceed our power. 

Mr. Hartley is called to the chair by the President at this point. 

Mr. Dickinson: You will provide for an election of State of- 
ficers on the even years and you would provide for an election every 
once in two years. In my estimation it is wrong. I would be glad 
to have it the other way but we have no power to change it ; it is 
best to leave it to the Legislature. It is not the office of the Con- 
vention to amend the Constitution in the Schedule and that is just 
exactly what we would be doing if we adopted this amendment. 

Mr. Woods (of Pennington): I do not desire to attempt to 
add much to what has been already said. It seems to me some o : 
objections to the amendment are not well founded. One argument 
is that this Convention has already determined that this coming 
election, this October election, is under the Constitution. Now if 
we have so determined it, it would be crossing the bridge before we 
come to it. In the first place we have not the authority to determine 
it. In the second place we take issue with the gentleman that we 
have not so determined it. I commence at the beginning of Section 
7 of the Schedule report. 

Mr. Hole: You have the old copy; the corrected copy is 
different. 

Mr. Woods: "The election provided for herein shall be under 
the provision of the Constitution herewith submitted, and shall 
be conducted in all respects as elections are conducted under the 
general laws of the Territory of Dakota except as herein provided." 
I was not aware that this Convention had taken this action but even 
if the Convention had taken that action, I ask it now for the benefit 
of the Convention if they have acted wisely. I would like to 
have this election held under the provisions of that Constitution 



TENURE OF OFFICE 429 

using the expression, "Under the provisions of the Constitution", 
does not strengthen the position any. The election is held and our 
authority for calling the election at all is under the provision of the 
Omnibus Bill that makes the rules and regulations for that election. 
Now, if these words are contained in the Constitution we can 
adopt that so the election will be held under the rules of the Con- 
stitution. 1 submit this, Mr. President, this election cannot or 
will not be under the Constitution. Why ? Because we have none, 
we have no Constitution as yet ; it must be resubmitted for rati- 
fication on the first day of October. We have no Constitution under 
which this election can be held; none whatever. We hold the 
election, then, under the provisions of the Omnibus Bill ; we cannot 
hold the election under the Constitution because we have none 
under which to hold it. 

What is the term of office for the Governor, fixed by the Con- 
stitution? Why is it two years? Members of the Legislature? 
Two years. To illustrate; if this section is held under the Con- 
stitution and they execute the duties of their office under the Con- 
stitution, and of course they will have to qualify under it, then 
we will have two regular sessions of the first Legislature. 

Now let us see h'ow we make this out. The Schedule and Or- 
dinance provides that they shall hold the first session of the Legis- 
lature sometime in October, the third Tuesday of October; limited 
to what they shall do. Then the regular session will- take place in 
January, hence there will be two regular sessions of the Legislature 
under the Constitution. 

Mr. Clay, from Jolley, or Jolley from Clay (laughter) illustrates 
the difficulty we shall encounter by supposing he should be elected 
Governor. It strikes me, one year or a little over would be sufhYient - 
long for a demonstration of that character. (Laughter). I do 
not hesitate to say that it would be sufficient. (Laughter). But 
this is a departure; the Constitution declares that the general 
elections are bi-ennial. At the time that the Convention of 1885 
assembled there was a law upon the statute books, and is yet, 
defining and declaring what the general election is. At that time 
this election coming upon the even years. That Convention was 
a Convention of Dakotans ; they were citizens and presumably 
familiar with that provision of the statutes. It is not for us to 
presume that the Convention did not use the words "general" in 
the sense in which it was used in the statutes of the Territory at 



430 SOUTH DAKOTA DEBATES, 1889 

that time "the general election shall be bi-ennial, there being a 
statute. declaring when the general elections should be held and what 
a general election was. They used the term "general election" in 
the same sense that the Legislature used it. If that is true, if we 
presume that the Constitutional Convention of 1885 acted with 
reference to the statute of the Territory in putting in Section 7, 
referred to by my friend from Codington, if we presume that they 
acted with reference to that provision of the statute, then we can 
have no doubt as to what they meant by using the term "general 
election". It meant an election falling upon the even numbered 
years ; it does not seem to me that we should presume or even act 
on the presumption that the Convention of 1885 presumed or did 
so foolish a thing ; but they intended to do reverence to the customs 
of the Territory and they used that expression under, and in the 
same light of the statute. If that Constitution declared general 
elections are bi-ennial and if we can find the use of the word general 
when used in that statute then general elections must be bi-ennial 
and on the even numbered years ; then if we now should provide for 
the election of these State officers to go over until the fall of 1891 
we would have a general election on an odd numbered year. In 
other words there would be elected officers who can only legally 
be elected at a general election. We would be providing for their 
election annually, an annual election; that is where the distinction 
lies. The Constitution provides with reference to the election of 
certain county officers that they shall be elected at the first general 
election after the Constitution takes effect. Very well; now, this 
Constitution will probably take effect during the year 1889, we will 
probably be in the Union as a State under this Constitution before 
the end of October that is what they calculate upon. Then f 
each election is a general election then we shall elect all the county 
officers and the State officers in full in November; that will be the 
first general election under the Constitution because there is an 
election in November and we make it a general election. 

I think, gentlemen of the Convention, you can see that every 
county officer elected last fall for two years, who qualified and is in 
possession of his office, would question your authority to oust him 
from his office or provide for an election to fill his place in Novem- 
ber, 1889. I do not think we could do so in view of the fact that 
the Constitution has provided all the general elections shall be 
bi-ennial. Then it is not competent for us to change the election 



MR. WOOD'S OPINMON 431 

from the even numbered years to the odd numbered years. You 
have no right to cut off their term of office. It would lead to a 
chaotic condition of affairs and unless there is some reason for this 
founded in argument more strongly based than any I have heard, 
I thnik we had better not provide for a contingencey of that kind. 
There is not any provision, I say, contained anywhere for our doings 
here or for acts we have performed except those found in the Omnibus 
Bill. That being so, we provide for holding the coming election 
under the Omnibus Bill for filling the office of Governor under the 
Constitution and any Governor elected under the Constitution his 
term of shall be two years and if elected under the provisions of 
the Act of Congress, that fixes his term; in other words the Consti- 
tution fixes the term of all offices under the Constitution upon com- 
ing into the Union as to the separation of the question here, I 
desire to call attention of the Convention briefly to some provisions 
of the Constitution in reference to that. In Section 26 in Miscel- 
laneous, under Article V the provision is that: Sec. 26. The 
Judges of the Supreme Court, Circuit Courts and County Courts 
shall be chosen at the first election held under the provisions of 
this Constitution, and thereafter as provided by law, and the 
Legislature may provide for the election of such officers on a dif- 
ferent day from that on which an election is held for any other pur- 
pose, and may for the purpose of making such provision, extend 
or abridge the term of office for any of such judges then holding 
but not in any case more than six months. The term of office of 
all Judges of Circuits Courts, elected in the several judicial circuits 
throughout the State, shall expire on the same day." Their terms 
of office are fixed by acts of legislature; they may shorten up. their 
terms and they may provide for an election at a different time. Of 
course if this Constitution is ratified, but if it is rejected, no matter 
how many different officers we elect, they will fall with the Consti- 
tutioneverything goes down with it. The Legislature has the 
power to fix a different election time for the Judges and they, in 
so doing, cut down those terms fixed upon. The Legislatu e may 
do so, then so far as the Committee's report and Section 19. I think 
the figure four need not be stricken out for the reason that, by tak- 
ing off six months from the tenure of office the Legislature may 
provide, and it seems to me in this way that the Let^islatuiv will 
be more liable to provide for our Judges being elected on a <lr 
date from that upon which any other ofti 'i-d anl it 



432 SOUTH DAKOTA DEBATES, 1889 

to me if we can induce the Legislature to provide for the election 
at a different time than that upon which any other officer is elected, 
it is a most desirable thing to do. It seems to me that the Judges 
should not only be elected on a different date but that they should 
be nominated in convention at which no other officer is nominated, 
not to subject the judiciary of our state to grow into political con- 
vention and rustle in the barter and trade common in such gather- 
ings. Then I say that wisdom directs that we should leave the 
figure four in the report in the section as the Committee have made 
it ; but in the other section of the question as to the figure two com- 
ing out, we have no possible authority to let these officers hold 
until 1892 and have an election in 1891. If they hold until 1892 
they should hold until the first of Jaunary 1893. The Constitution 
provides the general elections shall be bi-ennial. But gentlemen 
say, we shall have an election between for our officers because they 
are to hold each year. He says the general elections shall be bi- 
ennial and that means biennially annual. I never heard that con- 
struction contended for before. Biennial means, in fact annually. 
The election shall be biennial and annual. A general biennial 
election and that annually. It don't seem that construction, 

Mr. Davies, of Edmunds: Mr. President, if this Convention 
has committed a blunder in adopting Section 7 of the Schedule, that 
is no reason why we should now continue it throughout the suc- 
ceeding sections. Right in connection with what the last speaker 
has quoted to us from Section 24 of the Omnibus Bill, I will read 
only a few lines: 

"That the Constitutional Convention may, by ordinance, pro- 
vide for the election of officers for full State governments, including 
members of the Legislature and Representatives in the Fifty-first 
Congress." 

And reading in connection, also, with that, a portion of Section 
8 of the Omnibus Bill, as follows: 

"That the Constitutional Convention which may assemble in 
South Dakota shall provide by ordinance for re-submitting the 
Sioux Falls Constitution of eighteen hundred and eighty-five, after 
having amended the same as provided in Section 5 of this act, to the 
people of South Dakota for ratification or rejection at an election 
to be held therein on the first Tuesday in October, eighteen hun- 
dred and eighty-nine." 

Now, the honorable and Jolley member from Clay, asserts, as 



MR. DAVIES VIEWS 433 



if it was absolutely so, that we are laboring under the Constitution, 
but where is the argument to establish that assertion? The elec- 
tion of next October is authorized right here in thes two sections 
24 and 8 of the Enabling Act. Without this there would have been 
no election this fall, and there is nothing in the Constitution war- 
ranting or authorizing an election this fall. Now then, with ref- 
erence to the two expressions, "under the provisions of the Con- 
stitution and "after the admission of the State". The argument n 
reference to those two statements would have some force were it 
not for the fact that one of these is the very amendment to Section 
7, which section a large proportion of this Convention voted against. 
If the Convention was correct, then this would have some force now, 
but the question now is, are we correct? Again, as to the historical 
argument adduced here; that in analogy fails. Why? Because 
the state of things existing prior to the Enabling Act have no bearing 
on the state of things as they now exist. Suppose, Sir, for the sake 
of this argument and we find it is so that the Enabling Act and 
the Constitution do not tally that there is a conflict of authority 
between the two ; then which shall guide us ? Suppose for a moment 
that the Enabling Act and the Constitution which we are about to 
adopt conflict with reference to some of the details in these elec- 
tion matters. Which one of these two are we to follow? Which is 
our guide? Who for a moment can say that a thing which shall 
come into existence next October, provided we vote for it, has 
greater force than the enactment of Congress passed some long. 
time ago and which is today the law of the United States? The 
Constitution which we shall vote for next October is not yet in 
existence, as has already been said. The breath of life will not be 
in that Constitution until next October. There is no question 
but what we shall vote for it, as a State, but it is that continjit-ih v 
that exists. The situation of today is not a reality ; it is something 
which we i re going to make a reality next October; and I don't tee 
how anyone can for one moment say that that has binding fon c 
today over and above the Enabling Act which authorises nn-i 
us the power, and without which we would have no election next 
October. 

Now, as to the conveniences resulting from the two, 1 don't 
think tin- conveniences are what will govern us in this matter. If 
that point is settled, which can be determined only by the V 
this Convention, the amendment provides far the settling '" these 



434 SOUTH DAKOTA DEBATES, 1889 

differences ; it brings about the two elections on the same year, and 
on the even numbered years. The people of this Territory have 
already decided that it is their choice that we should not have elec- 
tions every year, but the provision of this Constitution of this 
Schedule is now that we shall have elections every year, contrary 
to the expressed wishes of the people of both North and South 
Dakota. The amendment provides for putting away that great 
objection. It is an objection that is universal; it goes right down 
into the pocket of every voter and every property holder in South 
Dakota, and this is one reason why the people object to this per- 
petual election every year, not only for the expense of the business, 
but the inconvenience to the people of the State. It seems to me 
that the amendment disposes of that objection and that the amend- 
ment is grounded both upon authority and law and that the or- 
iginal schedule is wide of both of these. 

I will not take more of your time, for I know that quite a 
number of the gentlemen present have studied this question and 
are in favor of this amendment, and I will give way to them. 

Mr. Cal dwell, of Minnehaha: I understood, Mr. President, by 
something said by the gentleman from Pennington, that there was 
a liklihood of the statutory definition of "general" and "annual" 
elections cutting some figure with reference to the question in 
hand ; and if this is to be the case it may be well for the Convention 
to know that the Territorial statute giving a definition of the terms 
"general election" and "annual election" has been repealed some 
two or three sessions of the Legislature ago. There is not now 
properly upon the statute books of this Territory any law under- 
taking to give a definition whereby the term "general elections" 
shall have any reference to even-numbered years, or the term 
''annual election" to odd-numbered years. It is a fact that the 
statute as originally enacted, has a place in the compiled Laws of 
this Territory, but it is a fact that it was placed there with the 
expectation of having it specially re-enacted by the Legislature, 
in order that there might be this distinction, and the matter was 
brought to the attention of the Legislature last winter, but it went 
to wreck. The act asking that this be re-enacted did not get through 
nor come up for consideration. So I simply call attention to the 
fact that there is no Territorial statute giving any special significa- 
tion to the term "general election". 

Mr. Boucher, of McPherson: Mr. President, on that question 



JUDGE BOUCHER ON TENURE 435 

it seems to me that the Compiled Laws of the Terr tory of Dakota 
as they have been published and approved, will be the best au- 
thority that we can have upon the subject, and I understand there 
is no question but what the Compiled Laws of the Territory 
(Cries of "louder, louder"). I say there is no doubt but that the 
Compiled Laws of the Territory today do make that distinction; 
that the general elections are the elections held on the even-numbered 
years, and the annual elections held in the odd-numbered years. 
Now, where the gentleman from Minnehaha gets his authority for 
saying that that is not the law of the land, is something I can't see. 
It is his authority against the law of the Territory as adopted 
and approved by the Governor. 

I did want to come up here loaded, but these gentlemen who 
have preceded me have stolen my thunder. However, there is one 
thing I do want to say in connection with the remarks made by 
Mr. Jolley from Clay. He bases his authority that this election 
is held under the Constitution from the language found in Section 
7. Now, what is a general election? If I understand a general 
election, it is the election whereat the general officers of the State 
are elected. Now, Section 20 of this Schedule offsets Section 7, 
because it says that the first general election under the provisions 
of this Constitution shall be held on the first Tuesday after the first 
Monday in November, 1890. That is what Section 20 says, and I 
say that that is right. That is right. The first general election that 
we will have under the provisions of this Constitution will be in 
1890, provided this Constitution is ratified next fall and provided 
the President sees fit to issue his proclamation. Thus we will have 
an election, and then we will have the first election under the pro- 
visions of the Constitution. This election is the bridge that takes 
us over until the first election under the Constitution I believe 
that this amendment ought to carry. We certainly have a right 
to do it ; we certainly have a right to elect our provisional State 
government to hold over until the first general election under the 
Constitution, and it is certainly in consonance with the good judg- 
ment of the whole people that that should be done. 

Mr. Humphrey, of Faulk: Mr. President, in the debate on this 
question I am impressed with the fact that has confronted us from 
the beginning, that we are a body of seventy-five people deprived 
of the ordinary soverign power, hedged about on the one side by 
the Omnibus Bill and on the other side by the Constitution, and 



436 SOUTH DAKOTA DEBATES, 1889 

every question depends upon our power, and not upon this question 
whether or not this election is under the head of "general" or 
"annual" election. I am surprised that those who compiled the 
present Territorial law inserted in that volume a law on the sup- 
position that it would be enacted by the next Legislature, which 
I don't regard that as material to the question before us. It seen's 
to turn and hinge upon the question whether this first election, on 
the first of October, is under the Constitution or whether it is under 
the authority of the Omnibus Bill. While it seems to me clear that 
it is under the authority of the Omnibus Bill, in one sense of the 
word, it seems to me clear that without the Constitution it would 
be void and that the officers we elect and the terms for which they 
are elected are void and without effect in any way unless the 
Constitution is adopted, but if the Constitution is adopted they 
are in full force. If that is not true, what was our position 
in 1885? We had no Enabling Act at all. Would anyone hold 
that those officers elected at that time were not elected under the 
Constitution? Now, I am free to confess that I have listened to the 
debate from beginning to end without deriving information there- 
from sufficient to cause me to be convinced, one way or the other, 
and therefore in this, as in some other matters before the question, I 
I find it necessary to do what I think best. The measure being 
necessary, or whether it is expedient or whether it is consistent 
with our desires, is not what must control us in this question. It 
is a question of power, and if it is, as I believe, an election under 
the Constitution, the officers should be elected for the terms pre- 
scribed by the Constitution. 

Now, in the year 1885 that was one of the years the gentle- 
men who made that Constitution provided for that election, and 
it would appear to be an intelligent and candid interpretation of 
the Constitution thus made by those who provided that Comti 
tution, to say that they did provide for an election annually. Now, 
some object to that, and possibly with good reasons, but that is 
not the question ; others favor it for what they believe to be a good 
reason, but that is not the question. I find no provision in the 
Omnibus Bill that necessitates an amendment of the Constitution 
relative to the terms of the officers elected thereunder, and unless 
we can find it we have no right to change those terms ; and, as much 
as it may be regretted, it does seem to me now that this schedule 
Committee have compiled the Schedule in conformity with the pro- 



QUALIFICATONS OF VOTERS 



visions of the Constitution. I therefore insist upon voting for the 
report of the Schedule Committee as it now stands. 

Mr. Da vies, of Edmunds: Mr. President, I would like to ask 
one question. Under the provisions of our laws as amended, we have 
one qualification for voters, and under this new Constitution we 
have another. It is, I think, in the Constitution ten days, and 
twenty or thirty days under our present law. If the question comes 
up if some one is challenged at the election next October, which 
law shall be followed? Is there any question but what the law of 
the Territory, as amended, would govern in this matter, rather than 
the law of the Constitution, which declares that a man need only 
be in the precinct ten days? Now here is one question that comes 
r ght square and fair; here is a question you must explain, and 1 
will simply ask now, which one of these two are we to follow? If 
not under the Constitution, then it so something else; which of the 
two is it ? I think that will satisfy the question. 

Mr. Humphrey, of Faulk: As I understand the interpretation 
of the Constitution, it is that all laws of the Territory are in force, 
except as modified by the Constitution. Consequently, this elec- 
tion being held under the Territorial laws, they would be only in 
force in regard to the State officers we have no Territorial law per- 
taining thereto whatever. Consequently, the procedure of the 
rules and regulations in the election for the adoption of the Con- 
stitution are in no manner effected, because the Constitution is the 
beginning of all matters pertaining to the officers and their terms 
under the Constitution. We come in contact with Territorial laws 
here, and we are between the laws and the Constitution. \Vhilo 
we as a body, are powerless to repeal or alter any Territorial law. 
and we are powerless to repeal or alter the Constitution, if there is 
a question of law as to the results, it is a question for the courts 
and not for us to determine. 

Mr. Sterling, of Spink: Mr. President; it seems to me like a 
strange construction to say that because Section 7 provides, and 
because there are certain provisions in the Constitution like this: 
"The election provided for herein shall be under the provisions of 
the Constitution herewith submitted" I say it si-mi* to me like 
a strange and a narrow const rurt ion. in <>ne srnse, to say that 
that^hall pertain not only to the election provided for under the 
Constitution but to the term of uftiei- as well, of any ortii er pro- 
vided for in the Constitution, and 1 don't believe the language 



438 SOUTH DAKOTA DEBATES, 1889 

warrants any such construction. I think that in a sense we do 
elect these officers under the provisions of the Constitution, in this, 
that we elect the identical officers provided for in the Constitution ; 
and it cannot be said that because the language is that the election 
shall be as under the provisions of the Constitution that it pertains 
to the term of office of the officers elected under this provision. It 
may be, and I believe in this connection it would be construed to 
apply simply to the officers elected, and not to the term of office. 
I think it has been frequently provided in Constitutions, or rather 
in the Schedules and Ordinances of Constitutions adopted, that the 
elections for the first term, or the elections under the provisions 
of the Constitution shall be for the shorter term, in order that it 
may be at the general election as theretofore held in the Territory, 
or in the State in the case of the adoption of a new Constitution 
by a State. That is, that first term, under the Constitution formed, 
or under a new Constitution, is regarded in many cases as initiatory 
or provisional, and if general elections had been theretofore held 
on the even-numbered years, the first terms of the officers were 
regulated accordingly, so that the elections thereafter might be at 
the even-numbered year, as they were under the Territorial form 
of government, or, under the old Constitution. I find in the Con- 
stitution of Nevada that it is provided that the terms of the State 
officers shall be four years, and I find, not in the Constitution, but 
in the Schedule and Ordinance it is provided that the first term 
of the officers shall be for two years, and so I think that with that 
in view, it is compentent for this Convention to say in the Schedule 
and Ordinance that the election for the first term may be for a shorter 
term, in order that it may conform to the elections as theretofore 
held. 

Mr. Dickinson, of Day: Mr. Sterling, you were a member of 
the Constitutional Convention of 1885. 

Mr. Sterling, of Spink: No, Sir. 

Mr. Dickinson, of Day: I will ask you if the Constitutional 
Convention of 1885 would not have said so, if they intended the 
first to be the short term? 

Mr. Sterling, of Spink: I don't know that it was necessary for 
them to have said so. 

Mr. Dickinson, of Day: Do you understand that the first 
term provided for was the short term? Were they elected for two 
years each, or for one year? 



MR. STERLING ON TENURE OF OFFICE 439 

Mr. Sterling, of Spink: I think they were, as a matter of fact, 
elected for two years, but in regard to the gentleman's construction 
of the term biennial, in which it is said that general elections shall 
be biennial, in the Constitution, I can't answer that better than the 
gentleman from Pennington did, and it seems to me ridiculous to 
say for an instant that all general elections shall be biennial, and 
at the same time make provision that shall make all general elec- 
t'ons annual, or giving us annual elections, as it would accord 'ng 
to the gentleman's construction. I think it is plain from the Con- 
stitution of 1885 that they did have the general election in view, and 
I think so from another reason than appears from the face of the 
Constitution itself. It provides that county officers at the first 
general election after the admission of the State into the Union, 
certain county officers shall be elected. Then, whether it is law 
now or not, the general election came upon the even-numbered 
years. They .had that in view and they had in view the fact that 
the terms of the county officers elected under the Territorial term 
would expire at that time, so that the election would come at that 
time, and that is evidence, and the only evidence, of what hey 
considered a general election, namely ; the election that should come 
upon the even-numbered years. Arid I believe that, taking the 
whole thing together, that in connection with the rest of the Con- 
stitution, it is plain that they meant not only the election of the 
county officers, but the election of State officers, as well, to IK- at a 
general election. The mere fact that in the body of the Constitu- 
tion, naming these different State officers, it is provided that their 
terms shall be so long two or four years I tay does not prevent 
us, in initiating the government, to limit their terms so that their 
election shall come at a general election. 

In conclusion, let me say, we have the power to fix the tenure 
of officers, h'owever elected, for the power to elect by implication 
gives' us the power to fix the term; the greatest always includes the 
lesser. While" we cannot fix a three-year term, we may fix a one 
year term, and I say the power to fix and provide for the election 
of the State officers carries with it necessarily the po\\er to provide 
for the tenure of office, if we disire, a different and a slu-rter j 
than the period fixed in the Constitution. \Ve cannot hold this 
election, under the Constitution; it" we could, there would l>e no 
necessity for this discussion; the Constitution w..u!d answer 
question that has been asked here. The Constitution provides it 



440 SOUTH DAKOTA DEBATES, 1889 

shall be under the laws of the Territory according to this provision. 
It is a special election that we are providing for not a general 
election or an election of any sort except a special election under 
the authority of the Omnibus Bill. 

Mr. Van Buskirk: of Codington: Mr. Chairman, I would like 
to say just one word. It seemed to me that, so far as this declaration 
in this Section 7 was concerned, it was a very insane thing, because, 
how we can hold an election under a Constitution w r hen we haven't 
got any, is one of the mysteries I am not able to solve. Suppose, if 
you please, which is not likely to happen, that the people should 
not adopt this Constitution on the first day of October; could you 
have an election under the proivsions of a Constitution that never 
had any existence? We all know that neither a law or a Constitu- 
tion can speak except from the date of its passage or adoption. 
No law of this Territory can speak except from the date of its ad- 
option by the Legislature. Suppose a man should do an act which 
is innocent under the law today, and suppose a week from today a 
man should do an act which the Legislature in the meantime has 
declared criminal ; could you convict him? Why certainly not. It 
is all nonsense. It is a very insane provision. You might as well 
say that a rose is a tulip; it wouldn't make it so. The gentleman 
from Minnehaha, who was one of the compilers of our law, does not 
suggest to you that that law was not in force in 1885. We all know 
it was in force then, and so it would not signify whether it was in. 
force today or not. They were simply using the language of the 
law as it existed at that time. This Constitution has not now, nor 
never can have any existence until the people adopt it. 

Mr. Dickinson, of Day: Mr. Chairman; I am talking against 
my wishes all the while in this matter, and I am very earnest in the 
matter on account of my convictions being that the Constitution 
and law is against my wishes. It seems to me we are in danger of 
making one of the gravest mistakes, if we adopt this amendment. 
I would be glad to see the substance and the intent of that amend- 
ment in force, but I believe if we adopt that there we shall make a 
great and grave and ser'pus mistake, w T hich we shall be held ac- 
countable for. With all respect for the legal learning of these 
gentlemen in this matter, I can't understand how they arrive at 
such a construction of this Constitution; an election in which 
the Constitution was voted upon at the same time that they voted 
for State officers ; and I maintain that bv an election under this 



MR. VAN BUSKIRK SPEAKS 441 

Constitution is simply meant this it was an election to fill the of- 
fices for which the Constitution made provision. The Constitution 
provided for the election of a Governor, a Lieutenant Governor; 
it provided for the whole list of State officers, and the whole list 
were elected. It was in that sense a general election. It was a 
matter of history that they so called it and they held such an elec- 
tion and elected such officers, and it seems to me we cannot get 
behind that definition, which is a matter of record and not a matter 
of guess. There is one other point that it seems to me these speak- 
ers have evaded, and that is this question: If you adopt that 
amendment and make your elections once in two years, is that a 
virtual amendment of the Constitution, or is it not? That is a 
simple question. There can be no question but that the Con- 
stitution of 1885 provided for two elections. There is an older 
definition of the term "general election"; there is a definition of 
"general" and "general election" which makes it to mean an election 
which is general in its cause and effect ; not merely as to State of- 
ficers. Each of these elections may be biennial every two years, 
upon the odd year ; every two years, upon the even year. But is this 
an amendment to the Constitution, or is it not? The Constitu- 
tion provides for an election every year. By this amendment you 
will make this election come once in every two years, and I would like 
to see it, but the question is, friends, is it right ? Have we the right 
to do it, or shall we leave it for the Legislature to submit an amend- 
ment to that effect? 

t<f\ Mr. Wood, of Pennington: If we are empowered in this to 
provide for the election of certain officers, have we not the power 
by necessary implication, to fix the tenure of those officers it' \vc 
fix it less than that provided for in the Constitution? 

Mr. Dickinson, of Day: It seems to me if we follow the otli- 
provided for in the Constitution, we must follow it for the terms 
provided for in the Constitution. 

Mr. Van Buskirk, of Codington: \Vhy can't we make it throe 
years instead of less ? 

Mr. Dickinson, of Day: Make it just what the Const ti:t:-n 
provides. 

Mr. Willis, of Aurora: Mr. I'residint; I feel I have realised 
that point where I have ac quired tin- requisite legal mt<>nnati>n 
which will enable me to vote intelligently upon this subject My 
'mpres-sinn is that this would be a good time to take a VOte ! 



442 SOUTH DAKOTA DEBATES, 1889 

to feel that the atmosphere is charged with the sentiment upon the 
part of the majority in favor of the amendment. There are sev- 
eral points that have been made here that lead me to this conviction 
in favor o; the amendment. One of them is the knowledge that we 
are a BRIDGE! It is a fine figure, and I think it is a figure that 
represents a fine fact. We are a special body, for that special 
purpose. I 1 ke this provisional idea that is suggested. We are 
to make a PROVISIONAL PROVISION! A conditional provision for 
the adoption and the assumption of all the effects and functions 
of statehood. We are to provide for the setting-up of a regular and 
orderly statehood housekeeping. And I like this idea that we are 
a bridge, and we are a special body and that we have no special' 
powers, which leads us and others to the conclusion that we have 
the authority for the adoption of the amendment. And way back 
of that, the reason that has been so spoken of here a sentiment 
that comes from my neck of the woods, namely; a feeling that if 
expressed would say, "From the abominations and distractions 
and the demoralization usually attendant upon a general election, 
good Lood deliver us just as much as possible." Let tis be delivered 
from the demoralization and from the extra expense, if we have a 
real substance or authority for it, by the adoption of the amendment 
the extra expense and demoralizations of annual elections. Give 
us only biennial elections. 

Now, I hope that either the vote will be taken right now, while 
I think the majority feeling is in favor of the amendment, or that, 
if the discussion proceeds, that a vote will be taken right after some 
lawyer makes a strong speech in favor of the amendment! I w r ant 
you to take in view r this fact, that preachers and those having the 
political proclivities of my friend from Pennington, have no political 
roads to run, and we are trying to cct in the best interests of the 
greatest number. I hope the vote will be taken 

Mr. Hole, of Beadle: Mr. Chairman; before this vote is taken 
I want to, in a brief way, show how we arrived at these conclusions, 
but before branching on that theme, I wish to say that my friend 
w r ho has just preceded me has a wrong idea of our duties We 
should first learn what our powers are, and second, if there is any 
possible question of power, take that side on w r hich there is none 
not attempt to build ourselves up or to build our opinions up -by 
some fine-spun theory of law to support a prejudice or wish, but 
rather go back and study the facts our powers and if there is 



MR. HOLE'S FURTHER VIEWS 443 

doubt, go on the safe side. The Constitution has pointed a 
course, and, while there is a fine-spun theory that we cannot 
elect under the Constitution, I think, gentlemen, when con- 
sidered, you will see that we can. This election, if not under 
the Constitution, is nothing. If that Constitution falls, the 
election is nothing. The only other possible source of power is 
the Omnibus Bill. The Omnibus Bill don't provide for any term 
of years or any salary. It says you may on the first day of Oc- 
tober have an election. You don't even have to have the election 
at that time, unless you wish to. Now, we will start back 
with the original Constitution made here in 1885. The Con- 
stitution was made in 1885 and there was an election held the 
following fall. Was that a provisional election? In the Schedule and 
Ordinance as provided for in 1885 it does not state the term of of- 
fice of anything of the kind. The officers were elected under the 
provisions of the Constitution. The election of Governor Mellette 
and other officers elected at that time was for two years. Their 
construction of it was biennial, which was a general election. They 
were elected under the Constitution of 1885 and to hold to 1887, and 
again in 1887 they would have another election, and the officers 
then elected would hold to 1889, and then our election would have 
come in November, 1889, if it had not been for the Omnibus Bill, 
which gives us the authority to hold our election in October. There 
is not a question but what that was intended ; there is not a question 
but what the Supreme Court was elected for the full term, as pro- 
vided in that Constitution. The Schedule nowhere ind cates any 
other term or kind, and I think anything short of this will be in 
the nature of an amendment to the Constitution. We voted on 
this in May, and we must stand right to the text, whieh is provided 
in the Omnibus Bill. This Omnibus Bill nowhere provides t 
such change as this. Does that provide that we can change the 
Constiuttion and have it read one year and three months, or any- 
thing of that kind? It doesn't do it. Then where do we get the 
power, unless we assume it? I take it, if \ve assume that po\\vr \ve 
amend the Constitution. The Omnibus Hill says we must elect 
officers as provided for in the Constitution. Now. if we don '1 -follow 
that law we amend the Constitution, which is unsafe and danger, .us. 

Mr. Sherwood, of Clark: When would the general election bava 
occurred under the Constitution <>t 1885? 

M,-. Hole, of Beadle! There w*s two i provided m 



444 SOUTH DAKOTA DEBATES, 1889 

1885, and there was one provided, and it was held, and it would have 
been valid for all purposes if we had been admitted, and there was 
another election provided for in 1887. There were no conditions 
in the Schedule no provisions for any provisional government. 
The officers were elected for the two years and the four. years. 
That was regarded as the first election under the Constitution. 

Mr. Wood, of Pennington: Let me ask you, if we adopt the 
report of the Committee, then will we necessarily have to elect 
sheriffs, treasurer's and other county officers at the election in 
November, 1889? 

Mr. Hole, of Beadle: I was just going to answer that question. 
The Constitution provides that at the first election certain officers 
shall be elected. Now, that election was in November, 1885. They 
held for the two years. Now, a little further along the Constitution 
provides when it comes to county officers it makes another pro- 
vision, and it says at the first general election after the admission 
of South Dakota into the Union. Now, we all know that they in- 
tended that the Territorial officers should hold until the next fall 
the county officers, until the fall of 1886. They elected their of- 
ficers and were all ready to put the machinery in motion, and ex- 
pected to do that between the first day of December and February 
following. During that winter sometime they intended to be ad- 
mitted 

Mr. "Wood, of Pennington: How is it about our members of 
Congress ; will we not necessarily have to elect again in the fall 
of 1890 two members of Congress? 

Mr. Jolley, of Clay: That is provided for by the United States 
law. 

Mr. Hole, of Beadle: That is not necessary for us to discuss 
here. That is provided for. We can get at that. 

They held their election for State officers in 1885. The inten- 
tion was to hold the next election the next fall. They say, when they 
come to speak of county officers w r hich the Territorial law provided 
for, that they shall be elected at the first election after the admission 
of South Dakota. Well, their term of office expired on the next 
year on the even year and it provides they should be elected 
that year; and I think when you come to discuss this matter and to 
consider the history of this, there is no question but what there 
were two elections provided for; and the word "biennial" you can 
speak of that as ridiculous, but it is not. The tenure of the offic 



FURTHER VIEWS ox TENURE 445 

shall be biennial, both State and County. The tenure of the Stau- 
officers was to commence on the odd year. They were elected in 
odd years and there is no provision in the Schedule to level that 
up. Then there was intended right along a biennial election for 
the State officers, and that was to be on the odd years. And for 
the election of county officers, it was also there provided that it 
should come on the even years, and the elections on that should be 
biennial. 

Mr. Van Buskirk, of Codington: Will you advise us when the 
terms of the members of the Legislature and the State officers begin 
under the Constitution? 

Mr. Hole, of Beadle: Under the Omnibus Bill we have our 
election in October and the members of the Legislature meet 
directly afterwards to do certain duties, but the furctiors of their 
office, as law-makers, does not commence until after we are admitted. 
There is a confliction there between the Constitution and the Omni- 
bus Bill. 

Mr. Van Buskirk, of Codington: Do they not exercise the 
functions of a Legislature? 

Mr. Hole, of Beadle: They do, under the Omnibus Bill, but 
no further. 

Now, gentlemen, I like this idea of a bridge, too. I think it 
i a pretty thing, but let us not bridge or trench. Let us do what 
is intended to be done, and if we have a creek that is only ten feet 
wide, let us build a ten-foot bridge, but not a two-months bridge. 
You could make this bridge unwieldy and cumbersome, but let 
us bridge just what-the people who have sent us here want us to do. 
It is always a pleasant thing to feel that you have power, but let 
us not do an unsafe thing here. 

Mr. Sterling, of Spink: Do you think the election as provided 
for in the Schedule and Ordinance of 1885 is any imluation of our 
power at all? 

Mr. Hole, of Beadle: It is a i in umstam c- that shows how they 
interpreted the Constitution. We have the same ConMitutmn 
now, exactly. The Enabling Act gives us no power to cham;e that. 
It does not say we shall elect the Governor and State >tVui 
any other time- than the- two years retem-d to. Tin- ^entlenia: 
IVnnington says the greater includes the less ami the |><>v 
elect gives some other powers, but it" that is so ami wr . an - 
the term and all that, we ran change the salary. WCCWJ . han;;e their 



446 SOUTH DAKOTA DEBATES, 1889 

age and the color of their hair! It is ridiculous to take that posi- 
tion. We can elect the officer as provided for in the Constitution, 
and nothing else, and anything contrary to that will lead us to end- 
less confusion and possibly to endless litigation. Now, I think the 
better feeling of the Convention is that if there are two ways, one 
which is safe and one in which there is a possibility of a doubt, take 
that course, even though you don't want to. This can be corrected 
by an amendment and can be corrected at any time, and my idea is 
to correct that. 

Mr. "Wood, of Pennington: Then you conclude, as I understand 
it, that Sheriffs and the like must be elected in November (October?) , 
1889? 

Mr. Hole, of Beadle: No, Sir; I just said they should not. I 
think I have explained that that we were following out the inter- 
pretation as made by the framers of the Constitution of. 1885. They 
intended to hold their elections on the even years. We will be 
admitted this winter and we will hold the election as provided under 
the Constitution, and the Constitution clearly and expressly pro- 
vides for two election?, and there we get the two elections. There 
is no possible confliction of doubt in that. I think this is unsafe; 
we might make up various arrangements; we might make the 
Schedule entirely different. I don't think it is the time now to 
experiment. Let us take the plain course, indicated in the Con- 
stitution and we will be safe. 

Mr. Huntley, of Jerauld: Mr. Chairman ; I simply want.to say 
a word. Some gentleman has asked in regard to the views of the 
Committee of 1885 that framed the Schedule. I wish to say, as a 
member of the Committee, that there was no such dispute as this 
arose in that Committee at all. It was the intention of the Com- 
mittee to make the elections biennial and not every year. I think 
that is what every member of the Schedule understood and thought 
they were doing. I don't think that question arose in the diccus- 
sion in the Committee at all. In fact, the hopes and fears were 
evenly balanced, and the effort of the Committee was to do some- 
thing so good that it would recommend it ito the judgment of every 
man. 

Mr. Hole, of Beadle: Under the provisions of the Constitution 
of 1885 w T hen did you expect to elect the county officers? 

Mr. Huntley, of Jerauld: Well, that question did not arise in 
the Committee. 



MR. HUNTLEY OF JfiRAULD 447 

Mr. Hole, of Beadle: It must have arisen. The common 
sense of any man would suggest it. 

Mr. Huntley, of Jerauld: Well, they didn't have any! The 
idea was that they would hold their offices until the expriation of 
'their time that the first officers would hold until the general elec- 
tion. Nothing of disputation, however, arose in the Committee 
on that point, but from the fact that it was fixed that the election 
should be biennial, and no arrangement made for curtailing or ex- 
tending the term of the county officers, my understanding of it was 
that the general election would come at the time when the county 
officers' terms expired. 

Mr. Hole, of Beadle: Let me ask you another question. Then 
the election of county officers would be on the next fall after the 
election that was held for Governor? 

Mr. Huntley, of Jerauld: Certainly. 

Mr. Hole, of Beadle: Well, how long did you elect Governor 
Mellette and the other officers for at that time? 

Mr. Huntley, of Jerauld: I dont' think it was specified. I 
think the understanding was, until the next general election. 

Mr. Hole, of Beadle: There is no possible doubt but what you 
had an intention at that time. I know I had too much faith in 
the Committee at that time to think that they didn't intend 
something. 

Mr. Huntley, of Jerauld: Well, I think they intended to elect 
Governor Mellette until the next general election. However, the 
question was not in dispute there at all. It was not made a point 
or a question or an issue at all in the Committee, but I think that 
was the understanding, and taken for granted, and I know that it 
is the idea of the people. The question was asked me more than 
a dozen times before coming here to this Convention, whether the 
Convention would be likely to fix for a general election this fall, 
and if the county officers all should be elected this fall, or whether 
the county officers would hold through their term and a general 
election of county and State officers be held a year from this fall, 
and no one ever broached the question to me at all as to whether 
the election should be made annual. They all interpreted the 
Constitution to mean that our election should be biennial that 
there should be an election only once in two years. I did not meet 
the first individual that ever thought anything else, or br<>. 
any other thought to me. 



448 SOUTH DAKOTA DEBATES, 1889 

Mr. Neill, of Grant: Mr. President 

The President, pro tern: Mr. Neill, of Grant. 

Mr. Lee, of Spink: Mr. President; I think every member's 
mind is made up and 

The President, pro tern: I recongized Mr. Neill first. 

Mr. Neill, of Grant: Mr. President; I am somewhat reluctant 
to give the Convention some light on this mooted question of how 
the Convention of 1885 viewed this matter of general elections, from 
the fact that I am afraid it is different from what I would like to 
have it; but, notwithstanding that, as it will be a matter of infor- 
mation to you, I would simply state that the question was not much 
discussed in 1885 whether or not we could make the State elections 
co-incident with the general election. We were too fearful at that 
time of encountering the opposition of any organized body in the 
new State and finding its adverse influence against the adoption 
of the Constitution, and we handled those things very gingerly, 
and that question was perhaps never raised in the Committee 
further than to be mentioned and passed by, for the simple reason 
that they did not wish to antagonize our county officers throughons 
the new State. It was not intended that the general electiout 
should be changed, but that county officers should hold their full 
term of two years and be re-elected at the regular election under 
the Territorial laws. The question as to the election of the State 
officers under the Constitution I would not construe it that they 
were elected under that Constitution as by authority as by pro- 
vision of manner, but that the Constitution itself had no authority 
consequently the manner prescribed by the Constitution was adopted 
as a mode or manner of election, the authority coming from the 
Convention itself. But now as to the tenure of those State officers ; 
they were elected and no specific time fixed for their term other than 
the general provisions of that Constitution. They were elected 
in 1885. We did not expect to be admitted inside of six months. 
That would leave them a year and a half of the two years for which 
they would be elected at that time. That was considered in itself 
sufficient for the first State officers of the new State, if we were 
fortunate enough to be admitted at that time, but the supposition 
was that they were elected for "during the war". The supposition 
was that they were elected for two years under the Constitution 
that would bring the year following the regular election under 
the Territorial laws. 



THE 1885 IDEA 449 



Now as corroborative of this, you will notice that in Section 
24 of the Schedule and Ordinance it reads as follows: 

"The first legislature assembled, after the adoption of this 
Constitution, shall have the power to continue in session longer 
time than sixty days, or to adjourn from time to time, and re- 
assemble at the call of such officers as they may prescribe, until the 
State shall be admitted into the Union, or their term of office shall 
expire." 

That is their term of office might expire before they w.ere ad- 
mitted into the Union. Now, granting that their term of office must 
expire at some prescribed period, namely, two years as prescribed 
in the Article on Legislative and Executive, that would be true of 
any other State officers. "When we held an adjourned session of 
the Convention of 1885, at Huron, the two years were approaching 
completion. It was thoroughly discussed at that time, and planned 
for another election in the fall of 1887, and I think that the "Ex- 
ecutive Committee" as proivded for in this Schedule and Ordinance, 
was instructed at that time to call that election of 1887 to re-elect 
the State officers and legislators, but that was never carried out, 
owing to the weak prospect, as I might say, of our admission and 
of the success of our movement. It was so discouraging and so 
unpromising that it wa not supposed under the Democratic ad- 
ministration then that we had any hopes under the Sioux Falls 
Constitution, and I suppose the authorities, under those circum- 
stances, failed to call that election in 1887; but it shows what the 
intention of the framers of this Constitution was as to the tenure 
of office ; namely, that they intended it should be for only two yean, 
and if we were admitted that there should be another election to 
re-endorse them n their offices. 

Mr. Williams, of Bon Homme: Mr. Chairman; wo find the 
argument based upon this portion of Section 7: "The election pro- 
vided for herein shall be under the provisions of the Constitution 
herewith submitted." Now, I happen to know the history of that 
phrase as it came from the lips of its author. It was proposed in 
a meeting of the Committee on Schedule and Ordinances, alter I 
had stated my views in this matter in accordance with what I have 
stated here on the floor of this Convention. I considered then ami 
I consider now that my views were unanswerable, in the position 
I took, and in order that the Chairman of that Committee might 
bridge over the difficulty that these fuels originate.!, he gave notice- 
then and there that he woul.l offer as an amendment , these words. 



450 SOUTH DAKOTA DEBATES, 1889 

that this election is under the provision of this Constitution; and 
that is the history of that phrase in this section. And I will say 
further that this provision has been adopted by this Convention; 
it was adopted by this Convention through an oversight. I had 
an amendment ready, but' in the scramble last Friday night that 
was adopted when I was not paying particular attention, and I 
understand that when other gentlemen had read this up this week 
it struck them as peculiar that this Convention should attempt 
to do anything of that kind, and they told me they proposed to offer 
an amendment to strike out as being considerable nonsense. 

Now, what is meant by this section 26 of Article V? "The 
Judges of the Supreme Court, Circuit Courts and County Courts 
shall be chosen at the first election held under the provisions of this 
Constitution." I take it that that phrase means that at an election 
to be provided for by law, which election must have the legal force 
and authority of law, and not that this Convention, by Ordinance, 
may extract "provisions", by the wording of the phrase "of this 
Constitution" and put it in the Ordinance and thereby make it 
under the provisions of the Constitution. The phrase means this, 
that when that Constitution becomes the organic law of this State, 
then any law that the Legislature may pass in pursuance of that 
organic law, calling an election, whether at that election provided 
for in the Constitution, or by the Legislature, it is that the election 
will be under the Constitution. The phrase means this; "UNDER 
THE AUTHORITY OF THE CONSTITUTION". Not the mere words ex- 
tracted and put into some other instrument and called "under the 
Constitution". It might be under the wording of the Constitution, 
but it could not be under the provisions. It means, when that pro- 
vision becomes the organic law of this State. If there is any provi- 
sion made for the election before the general election, then these of- 
ficers shall be elected at that election. Then the Constitution 
contemplated this ; that if the Legislature, having power by virtue 
of this Constitution, calls an election at a time other than at the 
general election, that these officers may be elected at that time ; 
and that same section makes provision that the Legislature under 
the authority of the Constitution not under anything else, and 
under no other body but that the Legislature, under the authority 
of the Constitution, may abridge or extend the time of the Judges 
of the Court who shall have held the office of judge at the time the 
Legislature acted that they shall abridge or extend the time six 



MR. WILLIAMS CONCLUDES 451 

months. For what purpose? For the purpose of making pro- 
vision that the Judges of our Courts may and shall be elected at a 
time different and other than at the election at which our county 
and State officers are elected. That is a good provision. But then, 
that would be an election under and by virtue of the authority of 
the Constitution, and I claim that that is just exactly what the 
phrase "Under the provisions of this Constitution" means. It 
means, under and by virtue of the authority conferred by this 
Constitution. 

Now, what is the condition we are in here today? What is 
the argument of the gentlemen who take the opposite view and 
maintain that this is for the election on the first of October? I 
claim we might just as well say we can hold an election on the first 
of October, on the fifth day of October, or at any other time we see 
fit to call an election. We can assemble and vote, but would our 
votes be counted? There must be an election fixed by competent 
authority. What authority has fixed this election for the first of 
October. It is fixed by Congress ; that is the body that fixes this 
election. Then Congrees goes on and says in the Enabling Act 
that this Convention may by ordinance provide for the election o' 
officers. Does it say a "Dictator" or a "Commander-in-Chief', 
or some other officer not provided for? No, Sir; it looks into the 
Constitution and sees what officers are therein provided for wjieu 
we become a State, and it says that this Convention, BY ORDINANCE, 
not by the authority of the Constitution ; that is a dead lettei - - 
but that this Convention, by ordinance, may provide for the election 
of these officers provided for in the Constitution the officers fired 
in the Constitution. But does it say they shall be elected for any 
particular length of time ? It says the officers provided for in your 
Constitution may be, by ordinance, provided for their election at 
this- time and no other time. Now, the officers provided for .4re 
the Governor, Lieutenant-Governor, Judges of the Supreme Court 
and other officers. Their term of office is fixed the term of Gov- 
ernor, Lieutenant-Governor and other State officers and the mem- 
bers of the Legislature. But the term of what? The tenr * the 
Governor ELECTED UNDER THE CONSTITUTION; the terms of UK wilier 
State officers, ELECTED UNDER THE CONSTITUTION. I take it that 
these are the identical officers provided for. They are gent:. 
elected to fill the offices provided for in the Constitution but n..t 
elected under the Constitution. Why do we do this ? P 



452 SOUTH DAKOTA DEBATES, 1889 

if we adopt this Constitution on the first of October, we have an 
organic law, and in order that the laws of the State may be operated 
we must have officers. Suppose we did not elect a Legislature and 
State officers. We would not have one single agent to carry that 
government into operation. We would not have State officers 
to execute the laws. Then it is absolutely necessary that this State 
government shall go into operation and that we elect a provisional 
set of officers in order that we may start and maintain that govern- 
ment in operation until the State government, by the chosen agents 
of the people, may operate and set in motion the government, 
under and by virtue of the people thereof. We must elect these 
agents at that time, but not under the Constitution. We only 
elect them to take their places under the Constitution. 

I have taken some pains to inform myself outside of the work 
of the Committee on Schedule. On night before last, in Yankton, 
I met an old gentleman who was a member of two Constitutional 
Conventions in Wisconsin. He told me that that was the only 
practice that they had and that he knew about, that the Convention,, 
by ordinance, only provided for the terms of officers and legislators 
until the State could be put into operation, and after that they 
went on and did it under authority of the Constitution. I have 
sought to find somebody that has been in constitutional conventions. 
Then my argument is this: That this being an election not under 
the Constitution, that the terms of the officers are not bound by 
the Constitution, that they are provisional ;' it is a provisional 
election and the terms of officers elected at that election shall 
be provisional, and no other. I say there is not one syllable, 
from beginning to end that provides for but one election. It makes 
provision that the Legislature may provide for another election; 
that the Legislature has authority under this Constitution to pro- 
vide for another election than the general election. But that elec- 
tion is not here provided for. The Constitution passes over to 
the Legislature the power to provide for it ; then the only election 
provided for in thir. Constitution is the general election. And 
if this report, as it comes from the Committee, is adopted,, 
instead of the amendment an amendment to the report being 
an amendment to the Constitution the Legislature has the 
discretion to provide or not to provide for this other election. That 
is virtually an amendment to the Constitution and you might just 



TKNURE OF OFFICE 453 



as well add a section here, because the power is here, and you can't 
get around it. 

One gentleman says it is going to drive us to trouble and ex- 
pense, under that phrase in the Constitution. I say if there is any 
hole through which this Convention can crawl to beat down and 
prevent a general election every year, this Convention ought to 
expect it and make provision for it. The sailing is clear, hov, 
and it is only clear in that direction. It must be provided for as 
this amendment contemplates, or else we are all tangled up. The 
Legislature, if it sees fit, can call another election. If the people 
don't see fit to have another election, they need not have it ; if they 
don't need it, they don't need to have it. 

And now, with the consent of my second, I will withdraw that 
part of my amendment which relates to the election of Judges, and 
I wish to say one word on that. If the report as to the election of 
Judges, as it comes from the Committee, is adopted, at the general 
election it will be necessary for the Legislature to provide for the 
election of the members of the Courts at a different time, but it will 
be necessary that they be elected at a different time in this amend- 
ment, and that is why I withdraw it. 

Mr. Wood, of Pennington: As the seconder of that amendment , 
I will consent with reference to striking out the figure "4" after 
figure "9" is Section 19. 

(Cries of "question, question, question".) 

Mr. Jolley, of Clay: Mr. President ; I had some notes here this 
morning as to what arguments I should present to the Convention 
for voting against the amendment of the gentleman from Bm- 
Homme, but some gentleman, either the gentleman from Penning- 
ton, or somebody else, hooked my memoranda. 

All I have got to say is this ; that the gentlemen who offered the 
amendment have tried to blind the Convention. If you pass this 
amendment you elect a Legislature in 1889, and then you elect them 
in 1890 sessions of the Legislature in 1890 and 1891. You . 
men who are opposing these officers holding their offices tor two 
years, do it on the ground of economy. Now, if an election don't 
cost very much where you elect a Legislature, then it don't cost 
very much where you elect State officers ; ami it yu think the 
sessions of the Legislature don't ost very much, look at t; 
session of the Legislature ; and in the language of one \v! 
on a desolate island and who seemed not to have much li"iv in this 



454 SOUTH DAKOTA DEBATES, 1889 

world and none in the next, I exclaim, "From the rocks and sands 
and barren lands and two sessions of the Legislature in succeeding 
years, good Lord, deliver me!" 

Mr. Boucher, of McPherson: Mr. President; a gentleman 
raises the question, do we by adopting this amendmentproposed by 
the gentleman from Bon Homme, amend the Constitution? I give 
the answer for what it is worth, that we certainly do not. Nobody 
pretends that we do, because we have got no Constitution to amend. 
The Constitution provides that these officers shall hold for two 
years. How can we, by ordinance make that consistent with the 
Constitution? We can only have officers elected for two years and 
have the elections come biennially by electing these officers at the 
ne*xt general election. That is the only consistent way we can 
arrive at it. 

(Cries of "Question, question, question.") 

Mr. Williams, of Bon Homme: Mr. Chairman; I move the 
previous question upon the amendment. 

I withdraw the motion and ask that the main question be put. 

Mr. Hole, of Beadle: Mr. Chairman; I will ask for a c'all of 
the roll. 

The President, pro tem: The Chairman of the Schedule Com- 
mittee moves the adoption of Section 19; the gentleman from Bon 
Homme moves the amendment that the word "1892" be stricken 
out and the word "1891" be inserted in its place. How shall you 
vote? (Cries of "Roll call, roll call".) Those in favor of the 
amendment will answer aye, and those opposed no, as their names 
are called. 

The roll was called. 

The President, pro tem: The vote stands 36 ayes and 36 noes. 
The amendment is therefore lost. 

Mr. Hole, of Beadle: Mr. Chairman; I move you the adoption 
of Sections 19 and 20, as reported. 

A Delegate: I second the motion. 

The President, pro tem: All those in favor of the motion to 
adopt Sections 19 and 20, as reported, by the Committee on Schedule 
will signify it by saying aye; opposed, no. The ayes have it, and 
the motion prevails. 

President Edgerton resumed the chair. 



CONSIDERATION OF JOINT COMMITTEE REPORT 455 

Mr. Hole, of Beadle: Mr. President; I move you that the re- 
port of the Schedule Committee, as a whole, be adopted. 

Mr. Kellam, of Brule: Mr. President 

Mr. Hole, of Beadle Mr. President; I will withdraw the mo- 
tion for th present. There is an addition to be offered by the Com- 
mission from North Dakota. 

Mr. Brott, of Brown: You mean from SOUTH Dakota. 

Mr. Hole, of Beadle: I ask that this motion may be made to 
indued the recommendation of the Committee from North Dakota, 
and I would ask for the reading of that part asked to be included 
in the Schedule and Ordinance. 

Mr. Brott, of Brown: Please say from "South" Dakota; we 
don't want to be understood as from North Dakota! 

Mr. Caldwell, of Minnehaha: Mr. President; that portion of 
the Schedule and Ordinance suggested by the South Dakota Com- 
mittee on the Joint Commission is a part of the general agreement 
which has been submitted, and if it could be done it would <eem 
to me it would be proper to hold open consideration of the Schedule 
until after the entire agreement has been submitted, because that 
portion of it that is recommended to go into the Schedule and Or- 
dinance is incidental to the report itself. 

Mr. Jolley, of Clay: Mr. President; I move that the report of 
the Committee on Schedule be laid aside, and that we take up the 
report of the Committee from the Joint Commission. 

A Delegate: Second that motion. 

The President of the Convention: It has been moved that the 
report of the Committee on Schedule be now laid aside and that the 
Convention take up the report of the Joint Commission. All those 
who favor this motion will say aye ; contrary no. The ayes have 
it. We will now proceed to the consideration of the report of tlio 
Committee. Major Kellam, of Brule, I understand you wish to 
bring that up now? 

Mr. Kellam, of Brule: No, Sir; I was about to suggest, upon 
the motion of Mr. Hole, to adopt the Schedule Committee report 
as a whole, that before action was taken upon that, the agreenu-nt, 
or so much of it as the Commission recommends should go into the 
Schedule, ought to be considered. 

The President of the Convention: Tlu-n- is nothing l- 
the Convention, as I understand 



456 SOUTH DAKOTA DEBATES, 1889 

Mr. Caldwell, of Minnehaha: Mr. President; the agreement 
has been presented to the Convention and is upon the Secretary's 
desk. 

Mr. Huntley, of Jerauld: Mr. President; I move that we pro- 
ceed to consider the report of the Commission. 

Mr. Harris, of Yankton: Mr. President; I move as an amend- 
ment, that we incorporate this agreement which they have arrived 
at, in the Constitution. We have no right to consider it. It is 
our duty to incorporate it in the Constitution. 

Mr. Hole, of Beadle: I second the motion. 

The President of the Convention: It has been moved that 
the Convention now incorporate in the Constitution the agreement 
arrived at by the Joint Commission. 

Mr. Kellam, of Brule: Now, Mr. President, I apprehend that 
there is not a perfect understanding of the thought suggested. The 
Enabling Act under which this Convention meets and this Com- 
mission was appointed, provides that the agreement reached by this 
Commission this Join