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. VS. 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 now7 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 Beadlev
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
A1bert 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 second1 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 rererred, 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: The1 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 wrord "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 wre 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 wrant 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 individua1 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 twrenty
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 wrould 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.

LetNus 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 rererred 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. Sherwrood,
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 w7ith 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 wras 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 Stafe 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 wrell 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, towTn 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 wratchers
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 wTord 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,' — wre 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 the1 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 law5
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 wrhether I
would have any action against them for refusing to receive my vote
I am heartily in the spirit of this. If I could throw7 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 wre 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 lawr, 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<- place1 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 7aw 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 wrant 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 own1 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 wre 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 n«n
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 wrould 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 wranted. 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? WTill 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 wrould
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,
wrhile 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 Ir 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 powrer 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 wrill 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 wrant 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 wras 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 wray. 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 lawrs 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 ;mv 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 DaT
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 sai«l
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 pr«»vi>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-
tution—everything 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 an«l 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 wrhen 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, wThich 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 wrant
you to take in viewr 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
wrho 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 wrhich 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 wrhich 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 wThen 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 B«m-
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 y«»u 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 Joint Commission, — shall be incorporated into
the Constitutions of the respective States. That much is certain,
but what I had in my mind is suggested and arose by the action of
this Convention upon the Schedule report, and it is this: After
the Commission was organized at Bismarck and had begun its deliber-
ations, it was developed that there was quite a lack of harmony
in the Commissions of both North and South Dakota, as to the
powers of that Commission with reference to the disposition "of the
records and archives of the Territory. There seems to-be a conflict
between Sections 5 and 6, — Section 5 declaring that the records,
books and archives of the Territory shall remain at Bismarck,
the capital of North Dakota, until an agreement is reached regarding
the same by the States. Section 6 provides:

'It shall be the duty of the Constitutional Conventions of
North Dakota 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 each of the proposed states of North Dakota
and South Dakota ; and the agreement reached respecting the Ter-
ritorial debts and liabilities shall be incorporated in the respective

AGREEMENT WITH NORTH DAKOTA 457

Constitutions, and each of said States shall obligate itself t

its proportion of such debts and liabilities the same as if they had

been created by such States respectively."

We were unable to harmonize what was a disagreement among
ourselves upon that point, and as a compromise and an agreement
upon which we could unite, we, before any agreement as to the dis-
position of the records was made, passed a resolution that whenever
an agreement should be reached each Commission should recom-
mend to its Convention the incorporation of that agreement into
the Schedule of the Constitution submitted by that Convention,
so that it might be accepted by the people and thus become the
agreement of the States. The point was, that the Joint Commission
under the two Sections 5 and 6 had no authority to make absolute
disposition of these records, or, that the authority which seemed to
be conferred by Section 6 had already been limited by Section 5.

Now, the thought that I had was that we want to report to
this Convention the agreement we have made with referem e t<>
the records and archives of the Territory, and also report to you
the resolution that was passed by the Joint Commission, that that
agreement should be made a part of the Schedule in each Consti-
tution. It is not with reference to the agreement as to the debts
and liabilities of the Territory that I now refer.

Voice: Well, that is not the question before the house.

Mr. Kellam, of Brule: That is the very reason I urge this
thought.

Mr. Harris, of Yankton: My intention was to move that the
agreement, commencing at the Preamble and ending \vith Article
XXIV, should be incorporated into the Constitution. We have no
control over it. I did not intend to include their recommendati. n
about incorporating the agreement about the records in the Schedule.
I do not think my motion was broad enough to cover anything hut
that ending with Article XXIV — the agreement, commencing with
the Preamble and ending with Article X XIV.

Mr. Caldwcll, of Minnehaha: Mr. President; it will probably
assist the Convention in arriving at a conclusion upon the ni<>ti<>n
of the gentleman from Yankton, if the Convention will understand
that there are practically three divisions of this Agreement in gen-
eral which has been submitted by the Committee. There is that
part of this agreement which refers to the debts and hal.il:;
the Territory ; there is that part of it which is of general application,

458 SOUTH DAKOTA DEBATES, 1889

and there is that part of it which refers to the public records. Only
two of these parts are to be incorporated into the Constitution, or
the Schedule and Ordinance. That part of the report with ref-
erence to the debts and liabilities must go into the Constitution.
It is recommended that that part of it which refers to the public
records, shall go into the Schedule and Ordinance ; and there is no
recommendation whatever in regard to that part of it which applies
to public property and miscellaneous subjects. The Commission
agreed upon what part of their general report should be submitted
to the respective Conventions to be incorporated into the respec-
tive Constitutions. That is a different report from this general
Agreement. The document which has nowr been conveyed to this
Convention by the Commission from South Dakota includes every-
thing that was agreed upon by the Commission, but in order that
the Convention may have before it only so much of this report as
it was decided by the Commission should be included within the
Constitution proper, it will be "necessary that there be another re-
port from the Commission, which report will be ready, and made
as soon as there shall be consideration of the report in general.
So it would seem to me that the proper thing to do is to acquaint the
Convention officially with what was the Agreement as a whole, which
would be done by the reading of it at this time, or else by dispensing
with the reading and regarding it as read, inasmuch as it is upon
the desks of the members, having been printed in the Journal. It
would then be competent to speak of these two provisions to which
I have made reference, one of which is to be incorporated into the
Constitution and the other of which is recommended to be incorpor-
ated into the Schedule and Ordinance. I will say that the agree-
ment which has been decided shall be incorporated into the Con-
stitutions, are Sections 1,2,3 and 4, and Section 10, I think, and
19 and 21 ; all of which refer to the matter of debts and liabilities,
and they are the only Sections of the Agreement, as a whole, which
refer to the debts and liabilities, and they are the only portions
of the Agreement as a whole which the Omnibus Bill requires shall
be incorporated into the Constitution.

Mr. Kellam, of Brule: I don't think I know exactly what is
now pending before the Convention, but, whatever it is, I move
as a substitute therefor, that the Schedule Committee report be
amended by inserting, first, the matter found on page 12 of the

AGREEMENT WITH NORTH DAKOTA 459

Journal (Page 144 of the bound Journal), commencing near the
bottom of the page with the words, "The Agreement made by the
Joint Commission" Etc., and including all down to the parenthesis;
then following the Agreement that was made by the Joint Com-
mission.

The President of the Convention: Mr. Harris, of Yankton,
moves the adoption of the resolution to be read by the Clerk.

Read as follows:

RESOLVED, That this Convention do now incorporate in the
Constitution the agreement of the Joint Commissions of North
Dakota and South Dakota, commencing with the Preamble and
ending with the close of Article XXIV.

The President of the Convention: To this the gentleman from
Brule moves the following substitute: —

Mr. Harris, of Yankton: Mr. President, I rise to a point of
order. It relates to another subject matter entirely.

Mr. Neill, of Grant: Mr. Chairman; Major Kellam, I think,
is working under a misapprehension as to the nature of the motion
the Convention is working under. It was decided that we take
up that portion of the Agreement of the Commission which should
be incorporated into the Constitution proper. That was the mo-
tion, I understand, of Mr. Harris, of Yankton.

Mr. Kellam, of Brule: I did not understand that.

The President of the Convention: The gentleman from Yank-
ton raises the point of order that the substitute moved by the
gentleman from Brule does not refer to the same subject matter.
From the reading of the motions I am unable to determine.

Mr. Kellam, of Brule: Well, if the Convention is now consider-
ing another matter, of course the point of order is well taken and
I will withdraw my motion.

Mr. Harris, of Yankton: Mr. President; it is under this pro-
vision of the Omnibus Bill that I make this motion: "And the
Agreement respecting the Territorial debts and liabilities shall be
incorporated in the respective Constitutions, and each of said S
etc.

Mr. Price, <i H\de: Mr. President; I was about to remark that
while the Agreement reached by the Commission contains main-
other things besides the report relative to debts and liab,
and I will state further, that the"}oint Commission havi- pass
will present to the Convention at the proper time what in their

460 SOUTH DAKOTA DEBATES, 1889

judgment ought to be incorporated in the Constitution— after a
full and fair discussion of the whole they came to the conclusion
that it would not be necessary — in fact, that it would be unwise and
cumber the Constitution, to insert this Agreement in full, as con-
templated by the gentleman from Yankton county, and they desire
to insert so much as in their opinion would be necessary to
insert in the Constitution. While it is true that the Omnibus
Bill says that "The Agreement" etc., shall be incorporated, this re-
port refers to many other things.

Mr. Harris, of Yankton: I would like to inquire if there is
anything in that Agreement, commencing with the Preamble and
ending with Article XXIV, that would be improper to put into this
Constitution?

Mr. Price, of Hyde: I think not.

Mr. Harris, of Yankton: Well, if there is nothing there that
is improper to go into the Constitution, I believe we had better put
it all in at once and get rid of it.

Mr. Caldwell, of Minnehaha: Mr. President; it will of course
be appreciated as desirable by every member of this Convention,
that what goes into the Constitution of South Dakota in regard to
this mutual Agreement, should be a counterpart of that which goes
into the Constitution of North Dakota in regard to this Agreement,
and the Joint Commission have prepared and will submit a report
which was arrived at, both with reference to the Constitution of
North Dakota and with reference to the Constitution of South
Dakota, and which includes some matters not contained in the
language of the Agreement as already submitted. For instance,
it was necessary of course that there be adopted by both Conven-
tions a section by which each State should assume the labilities
taken by each under the Agreement as arrived at; and this report
to which I refer, which relates particularly to debts and liabiliti s,
contains that, and it is already prepared. This is in the hands of
the Chairman. But the proper thing, as it seems to me, is for this
Convention to take up for consideration, by reading, this Agree-
ment, or else by postponing the matter of Agreement and consider-
ing it read, the text of it being on the tables of the members. When
that is done then there will come up the further report of the Com-
micsion, which includes onlv so much of this matter as was decided

CONSIDERATION OF REPORT 461

by the Joint Commission should be incorporated in both (
tutions.

Mr. Clough, of Codington: Mr. Chairman ; it seems to me this
Committee ought to be allowed the privilege of making a report
conveniently, and as it is now five minutes of twelve o'clock, I move
that this Convention do now take a recess until two o'clock, when
the Committee be requested to present a report as they desire so
to do.

A Delegate: I second the motion.

Mr. Hole, of Beadle: Mr. President; isn't that hour occupied
already by an arrangement to meet the Committee that come in
regard to irrigation ?

A Voice: We don't want to irrigate!

Mr. Caldwell, of Minnehaha: Mr. Chairman; of course I know
that a motion to adjourn is not debatable, but then I know this
whole matter can be disposed of in five minutes. If this general
report is to be regarded as in the possession of the Convention, then
there is no action in this Convention necessary upon that, and if
the Committee —

Mr. Elliott, of Turner: Mr. President, I rise to a point of
order. There is a motion to adjourn before the house.

The President of the Convention: This is not a motion to
adjourn. ' It is a motion to adjourn and instruct, which I under-
stand is debatable.

Mr. Caldwell, of Minnehaha: It will be regarded as being in
and this report can be fixed up in five minutes.

The President of the Convention: The motion before the
Convention is that we now take a recess until two o'clock and that
the Committee appointed by the Convention of South Dakota to
form a part of the Joint Commission be instructed to make a report
at that time.

Mr. Kellam, of Brulc: Mr. President; I would state that this
Committee is ready to report, and it has been since the moment it
landed here, if it only had the opportunity to report.

The President of the Convention: As many as arc in favor
that the motion prevail will say Ayr ; <•• mtrary no. The ayes appear
to have it.

(Cries of "Division, division.")

462 SOUTH DAKOTA DEBATES, 1889

The President of the Convention: Those of the opinion that
the motion prevail will rise and stand and be counted.

The Clerk announced that there were 42 ayes.

The President of the Convention: There are 42 ayes and the
motion prevails.

The Committee appointed to meet the Senatorial Committee
this afternoon in this room are requested by the Chairman of the
Committee to meet him immediately after the adjournment, and
that there may be no mistake, the Clerk will read the list of the Com-
mittee again.

The Clerk read the names of the Committee ; when a recess was
taken until two o'clock P. M.

Two o'clock P. M.

The Convention convened and was called to order by the
President.

Mr. Van Buskirk, of Codington, was called to the Chair.

Mr. Edgerton, of Davison: Mr. President; I voted this morn-
ing with the majority to reject the amendment that was then pro-
posed. I have been informed during the recess that the loss of
that amendment will render it necessary that all of the county of-
ficers throughout South Dakota shall be elected this coming fall. I
did not so understand it when I voted. I have had no opportunity
to examine it and I have not decided, but if there is a possibility
that that construction can be placed upon it, why I want the amend-
ment to carry. I told the gentlemen that I would move this re-
consideration, so as to allow them the opportunity of presenting
that themselves to the Convention. I voted against the amend-
ment and for the report of the Committee, because it was the re-
port of the Committee. I took it for granted that the Committee
had examined it and were better prepared than I could be, but if
there is a possibility that such a construction can be passed upon it —
and Mr. Wood, of Pennington, tells me he believes that is the correct
law of the case — ,then I voted without understanding its effect,
and I therefore move a reconsideration of the motion by which
the Convention refused to adopt the amendment.
Mr. Peck, of Hamlin: I will second that.

The President pro tern: Gentlemen of the Convention, the
motion before the Convention is to reconsider the motion by which
the report of the Schedule Committee upon Section 19 and 20 was

THE TENURE CLAUSE RECONSIDERED 463

adopted and the amendment rejected. Is the Convention ready
for the question?

Mr. Elliott, of Turner: Mr. President ; so far as I am concerned
individually, I am not prepared to vote upon that question now. I
would like to hear from some of the Committee upon that question.
If there is a possibility, as has been stated by the gentleman from
Davison county, for the electi9n of all of these officers, I shall cer-
tainly vote for the reconsideration, but if there is none, I shall
adhere to the vote I made on the question this morning.

Mr. Hole, of Beadle: Mr. Chairman, the gentleman from Pen-
nington came to that conclusion, I think, without reading Section
5 of Article IX. Section 5 of Article IX provides this:

In each organized county, at the first general election held
after the admission of the State of South Dakota into the Union,
and everv two years thereafter, there shall be elected a Clerk of
the Court, Sheriff, County Auditor, Register of Deeds, Treasurer,
State's Attroney, Surveyor, Coroner and Superintendent of Schools
whose term of office respectively shall be two years, and except
Clerk of the Court, no person shall be eligible for more than four
years in succession to any of the above named offices.

Mr. Wood, of Pennington: That is exactly what did read.

M. Hob, of Beadle: Now, if there is no election provided for
this fall, except in October — we are not to be admitted until after
October — until sometime in November — why, it is an impossibility ;
there can be no officers elected until the next year. That is the
intention. That is the understanding of every delegate and tlu-ri-
can be no possible question on that point. If there is any question,
that can be met without attempting to undo what has been thought
to be the correct course, but there is no possible way in which these
officers can be elected this fall. The provision as to all the State
officers is as to the first election ; the provision as to county officer
is at the first general election after the admission of South Dakota
into the Union. Now, there is no possible question there. There
is no gentleman in this house who has any possible question
what that means. It means that the election shall be held in
November, the coming year. That is the first possible ekvtion
under the Constitution. We cannot be admitted until after the
time for the election of county officers has passed. There is nothing
in the Schedule of Constitution which can possible tend t.> any
other conclusion.

464 SOUTH DAKOTA DEBATES, 1889

Mr. Wood, of Pennington: I do not think it advisable on this
motion to reconsider to argue the whole proposition.

The President pro tern:

Mr. Wood, of Pennington: Now, if the Convention desires
to hea any further argument upon that proposition, then of course
they will reconsider. I think the Convention would be acting
wisely if they would support the motion to reconsider.

Mr. Lee, of Spink: Mr. Chairman; I am satisfied that we shall
get into trouble in many ways and I don't wish to review all the
ground that has been gone over here. There seems to be a dis-
tinction without a difference. My friend is talking about the beau-
tiful bridge ; the Omnibus Bill is the bridge over which we get to
statehood, and it appears t9 me if we don't reconsider this that
we have knocked the bridge all to pieces. I believe the gentleman
to my lef c (Mr. Edgerton, of Davison) is correct. This law can be
so construed as that we will have to re-elect all these county officers,
and I will go heart and hand for the amendment.

The President pro tern: I will re-state the motion. This
morning the Convention declined to amend the report of the Schedule
Committee as to Sections 19 and 20, and the report of the Com-
mittee was adopted as to those Sections. Now the motion before
the house is to re-consider that vote.

Mr. Jolley , of Clay: Mr. President; I call for the ayes and noes.

The President pro tem: The ayes and noes are called for.
All those that are in favor of the reconsideration of the motion
by which Sections 19 and 20 were adopted will vote aye, contrary
no.

The roll was thereupon called

The President pro tem: The result of the motion to reconsider
is 42 in favor and 16 against. The motion to reconsider preva Is.
What is the further pleasure of the Convention?

Mr. Wood, of Pennington: Now, Mr. President, I desire to
call the attention of the Convention more particularly to the
danger which we had —

Mr. Jolley, of Clay: Will the gentleman from Pennington
allow me to ask a question of the Chair? Mr. President, what is
the condition of the business of the Convention now? I understood
the Chair to state that the vote by which those two Sections wrere
adopted was reconsidered. The motion is therefore upon the
adoption of those two Sections. That is the way I understand it.

FIRST GENERAL ELECTION 465

Mr. Wood, of Pennington: I don't understand it so. I under-
stand, Mr. Chairman, that the motion to reconsider reconsidered
tin- whole proposition, and I understand that now the amendment
to Section 19 is before the Convention.

Mr. Jolley, of Clay: You can't reconsider two questions in
one motion.

Mr. Edgerton, of Davison: Mr. President; I think the gentle-
man from Clay is correct. I therefore move you, Mr. President , to
reconsider the vote by which the Convention rejected the amend-
ment.

A Delegate: I second the motion.

The President pro tem: The question is upon the motion of
the gentleman from Davison to reconsider the vote by which the
Convention rejected the amendment to Section 19. Is the Con-
vention ready for the question?

(Cries of "Question, question".)

Mr. Hole, of Beadle: I think, as a point of order, that the
mover of this motion voted against that amendment.

Mr. Edgerton, of Davison: That is correct, and that was the
prevailing party. We succeeded ; we beat the amendment! (Great
laughter.)

The President pro tem: As many as are of the opinion that
the motion to reconsider the vote by which the amendment was
rejected, will say aye; contrary no. The ayes have it and the mo-
tion is carried.

Mr. Hole, of Beadle: Mr. Chairman ; I do not wish to make a
speech on this. I merely wish to read Section 20 of the Schedule
and Ordinance, which provides: •

"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, and every two years thereafter."

That is the first general election. 1 will read it again, lx:cause
I think this settles the whole question, so far as the question has
been raised by the gentleman from Pennington.

"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, and every two years thereafter."

Now then, Article IX —

Mr. Edgerton. of Davison. resumed the chair.

The President of tin- Convention: Mr. Hole, if you will allow

466 SOUTH DAKOTA DEBATES, 1889

an interruption, I understand the Senatorial Committee are now
coming into the hall.

Mr. Hole, of Beadle: I waive, with pleasure.

The President of the Convention: According to the order of
the Convention this morning, there will be a recess now, in order
that the Committee that was appointed by the Convention this
morning to present certain facts to the Senatorial Committee
might have an opportunity and also that they might present the
delegates of the Convention to the members of the Committee, and
during the recess, the Chairman of the Committee will preside —
Dr. McGillycuddy.

Mr. Gillycuddy, of Pennington, took the chair.

The Chairman of the Conference: Gentlemen, is it your
pleasure to be presented to the Senators now, or after the Con-
ference.

Mr. Peck, of Hamlin: I should say now, Mr. Chairman.

The members of the Convention were thereupon presented
informally, to the Committee, consisting of United States Senators
Stewart, of Nevada, and Reagan, of Texas.

Senator Stewart: Gentleman, the Committee is here to get
information. We want to know how you farmers are situated with
regard to supply of moisture for raising crops, what the deficiency
is and what the means are of supplying that deficiency by artificial
means, artesian wells, stored water, rivers, etc., and we would like
to have you go through rapidly, from different sections of the State,
giving a short statement of the situation there — whether there is
sufficient rain-fall, and if not, where you get water, or can get water,
to supply that defect. To collect that information as rapidly as
possible, we will hear those of you who have been selected from
different sections of the State, right now, and the shorthand reporter
will take it down, and if we do not get through during your vacation
here, why we won't interrupt the proceedings of the Convention,
but will go in one of the side rooms and hear any further persons
who have any information to give.

A large number of the members of the Convention here made
statements to the Senatorial Committee with respect to the lack
of rain-fall in their respective localities and the urgent need of
irrigation as a means whereby to supply the needed moisture.

The President 'of the Convention: The Convention will re-

VISIT FROM UNITED STATES SENATORS 467

assemble at half-past seven o'clock this evening, and in the mean-
time the Senators w,ill make an address to the citizens and members.

The Chairman of the Conference: Gentlemen, I will introduce
to you Senator Stewart, of Nevada, who will make you an address
regarding irrigation.

Senator Stewart addressed the Convention upon the subjects
of Irrigation and the Demonetization of Silver, and was followed by
Senator Reagan, who occupied the attention of the Convention,
briefly, with remarks upon the same topics.

The Chairman of the Conference: Gentleman, if there is
nothing more to come before us we will stand adjourned informally.

Mr. Hole of Beadle: Mr. Chairman, as an expression of this
Convention, I would move you that a vote of thanks be tendered
the Senatorial Committee, for the time, consideration and attention
they have given to our State.

The motion received a second, and, upon being put to a vote,
was declared unanimously carried.

The Chairman of the Conference: Gentlemen, if there is noth-
ing further, we will stand adjourned.

The President of the Convention: The Convention vill meet
at half-past seven o'clock, promptly, this evening.

Recess taken until 7:30 o'clock P. M.

The Convention reassembled at 7:30 o'clock P. M., and was
called to order, with President Edgerton in the chair.

The President of the Convention: I will state to the Conven-
tion that I telegraphed Governor Mellette with reference ;
question of pay of the delegates, this forenoon, and have received
the following answer:

"Richardson has sent his Chief Clerk to settle Convention
claims. Has no disposition except to accommodate and do «
thing in business manner. Train was late, so Clerk may n<>;
there till tomorrow. He will make everything right."

So it is evident he will reach here tomorrow night from Bismarck
and settle with the delegates to the amount of the appropriation.
I suppose.

It is evident to my own mind, from what I have seen today,
that we cannot get through with the business of the Com*
before tomorrow afternoon sometime^ and that then tin- Clerk \\ill
have to take some hours to complete the enrollment, and that the

468 SOUTH DAKOTA DEBATES, 1889

Constitution will not be ready for the signatures of the delegates
before Monday forenoon. It is my own opinion that there is no
possibility of our getting away from here until Monday afternoon or
Tuesday morning.

The invitation that was extended to the Convention and ac-
cepted by the Convention to go to Spirit Lake tomorrow afternoon
and return Monday morning probably will not interfere with our
business here at all. Even if we finish our business by the middle
of the afternoon tomorrow, it will take all of tomorrow afternoon
and possibly Monday forenoon to complete the enrollment, so that
we will be ready to sign the Constitution. It will therefore be pos-
sible for all the delegates that desire to, to be absent over Sunday.

The question before the Convention now is upon the motion
of Mr. Hole that Sections 19 and 20 of the report of the Committee
on Schedule, be adopted; to that Mr. Williams, of Bon Homme,
has moved an amendment and the amendment is before the Con-
vention. Is the Convention ready for the question?

Mr. Hole, of Beadle: Mr. President ; I merely want to say this:
It seems that this was reconsidered under a misapprehension of
facts. The gentlemen from Pennington having conceived the
idea, and having promulgated it after its conception, that there
was a conflict and that the Schedule as adopted would compel an
election of county officers this fall. By what process of reasoning,
by what process of reading or by whatever process he may have
reached this conclusion, I cannot guess, but I merely want to read
the law as provided in the Schedule and I will call your attention
to Section 20 as laid down in the Schedule.

That the first general election under the provisions of this
Constitution, shall be held on the first Tuesday after the first Mon-
day in November, 1890, and every two years thereafter.

And Section 5 of Article IX of the Constitution, reads as
follows :

In each organized county, at the first general election held
after the admission of the State of South Dakota into the Union
and every two years thereafter, there shall be elected a Clerk of
the Court," — and then enumerating the county officers.

Now, the purpose of writing Section 20 was to leave that so
there was no possibility of doubt, and if the English language can
make it more clear, let us clear it up, but I don't think it is possible
I don't think it was in the mind of any member of the Convention

FIRST GENERAL ELECTION 469

that such a thing was possible. I think this reconsideration was,
not exactly what we call a lawyer's trick, because lawyers never
know when they are beat, but it was putting it somewhat in this
way : A delegate was* acting the part of an attorney in the matter
more than acting the part of a proper reconsideration, unle: s the re-
consideration would cover all the grounds. Now, under the re-
consideration, as made, I understand the only question before us
is the question of Section 20 in the Schedu e and Section 5 of Article
IX in the Constitution. I understand from the mover of the ques-
tion to reconsider, that that is the only question before the Con-
vention.

Mr. Wood, of Pennington: Mr. President ; I will say now that
I hope each member of the Convention will turn to Section 20 of
the Schedule and Ordinance report, and if any gentleman of this
Convention can tell me where we get the power or authority to
make the declarations contained in that Section, then I will say
I am wholly unable to construe the English language at all. That
is pure, straight, unadulterated legislation. There isn't anything
else about Section 20, except the purest legislation; it is not at all
necessary to carry into effect the provisions of the Omnibus Bill ;
not at all necessary to enact, to go into the Union under this Con-
stitution, and we have no authority anywhere for enacting it. Then
I say that Section 20 should not be enacted by this Constitutional
Convention, and for myself, I will never put myself on record as
supporting a measure of that kind. What is Section 20? It is this:

That the first general election under the provisions of this
Constitution, shall be held on the first Tuesday after the first
Mondav, in November, 1890, and every two years thereafter."

What right have we to say when the first general election
shall be? Are we given the power to legislate? I think not in any
sense or to any extent ; but that is a very important legislative pro-
vision. Where do we get power to act? What is our mandate of
that nature good for? Perfectly void and nugatory.

As to the election of county officers in November, I \\ill not
take up much time. ! will call attention first, lu>\\ wi-r, to S,
4 of the report of the Committee on Schedule and Onlinance.

All officers, civil and military, now holding thru oth\ c-
appointments in this Territory, under tlu- authority of the UmU-d
States, or under the authority of the Tcrritorv of Dakota, shall
continue to hold and exen isr tlu-ir n-sju-i tivi- oth» r> ami ni'i"»int-
ments until superseded under this Constitution."

470 SOUTH DAKOTA DEBATES, 1889

Now, of course that would be the effect, in the absence of any
provision of that kind. However, the provision is here and has
been adopted ; a very salutary and beneficial one. They shall hold
their offices until superseded under this Constitution. When do
we become a State? I will read the latter part of Section 8, of the
Omnibus Bill:

And if the Constitutions and governments of said proposed
States "are republican in form, and if all the provisions 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
announcing the result of the election in each, and thereupon the
proposed States which have adopted Constitations and formed
State governments as herein provided shall be deemed admitted
by Congress into the Union under and by virtue of this Action
an equal footing with the original States, from, and after the date
of said proclamation."

Now I say this, and in connection with that read, I want to
see what the Convention may think of it, that if on the first day of
October, the Constitution which we submit, and that is, the Con-
stitution of 1885 as amended by us under the Omnibus Bill, re-
ceives a majority of all the votes cast in South Dakota, then we are
a State from and after that date That is an accomplished fact ;
v e are a State and have existence as such from that date, as soon
as the last vote is cast, if there is a majority for that Constitution.
Then we become a State by operation of law, at that instant. That
fact is declared later, by proclamation.

Mr. Wood: My position is this: The Constitution declares
Section 4 of Article 7 that all general elections shall be biennial.
General elections as defined by the statute are biennial elections,
they are both provided for by law. Yet, when we come into the
Union under the Constitution that wrill be the primary law. It will
take the place of the statutes. Hence the statutes which declares
the annual election must give way to the Constitution because that
provides that all general elections are biennial or should be. These
elections are either. Being general, then the Constitution and
Article IX says what shall be done. If this is a general election
then it wrill be known as a general election after we come into the
Union. Being known as a general election we have got to elect
county officers. I think that is sufficiently clear. I think I have
defined the reason that I take this position. In conclusion I desire
to say this: The Constitution fixes the term of office of the Gov-

MR. WOOD'S V i n\vs 471

ernor at two years. The people of this Territory by practically
unanimous vote ratified the Constitution and must ratify it
before it becomes our organic law. We are not under this Consti-
tution, but will be after the first of October next, now, and that is
the primary law after the first of October next then the tenure of
office of the Governor and these other political officers is two years.
If we have the power to extend the term" twenty-seven months we
can, with the same propriety and with the same legal force extend
it twenty-seven years. There is not a particle of difference in the
principle. If there is any difference in the principle I think that
some member of the Convention would explain the difference t >
me for I am not able to detect it. But, they say "how arc you
going to cut their tenure of office down — that is under the Constitu-
tion?" I say in answer, we are not now under the Constitution. We
derive our powers from the Omnibus Bill, not from the Constitution.
The Omnibus Bill says we can amend the Constitution. All the
power we have got is contained in the Omnibus Bill and where there
is any doubt of our position we must look to them and nothiru
It prevents our amending the Constitution except in certain par-
ticulars and parts. They say you will have two elections. I say
this, that there is no way of preventing it that I know of.

A Voice: Have the Legislature amend it.

Mr. Wood: I say we do not want to treat ourselves and our
constituents in that manner. We do not want to cut the Comti-
tution in that manner. You can avoid it by saying that th.
ernor and those other State officers shall hold their office until the
first day of January, 1891. That is the way to avoid it ; tlu>n wo
will elect them in 1890 when these other officers can be e!ec ted at
the same time. That is general election under the statutes.

Mr. Caldwell: I can state it as a fact that there is no lav: in
this Territory fixing any particular significance to the expi
"general election" or to the expression "annual election". The
original la A- was for a particular purpose. It was in order to bridge
over a scheme in reference to some county orgunixatimi. It was
enacted that an election held on the even numbered years should be
called general election and those held on the odd nunrf
should be called annual election. That particular provision of the
law which has been enacted or amended, Chapter 27 of the political
Code was repealed, — the entile Section was repealed taking along
with it, of course, the amendment of 1881. But it EO liappens that

472 SOUTH DAKOTA DEBATES, 1889

there are places throughout the statutes where the term is used with
a significance given to it by that section which was repealed. There
was certain things prescribed to be done on general election, so that
the compilers of the law, in order to establish the use of the term
where stated retained this particular provision which has been
repealed. At the last session of the Legislature they undertook to
get it enacted, because it ought to be enacted, but it is not enacted.
And by reason of its being in the compiled lawrs it is not law there-
fore. Because of the appearance of the statute in that place can-
not make it law. Because all the validity which the compiled laws
is merely that they are to be accepted prima facie evidence of the
law as it is. But in the case of conflict the compiled laws and the
special laws of any particular legislative assembly those special
laws are to control and the compiled laws stand for naught. I
say it is a positive fact that this statute defining general election
and annual election have actually been stricken from the statutes
of the Territory. I simply would say to the gentleman that if it
didn't cut any figure he ought to know what the state of the case
is.

Mr. Wood: I will not dispute the existance of such a law.
I will declare I have never seen it. Inasmuch as the old act has
been carried forward in the compiled laws it is prima facie evidenc e
at least of the law of the land and we ^ ill take the prima facie evi-
dence until we get something besides the word of the gentleman
from Minnehaha county, because in legal matters the statutes
themselves are evidence. The gentleman asks if my position v ill
be changed if I could be shown that the Legislature did repeal the
law of 1881 defining the difference between general and annual
elections. I stated then that it would make all the difference in
the world. I did not get the idea as I do now. It will make no
difference because the statutes still provides for an election each
year. The even years under the statutes of the Territory we elect
County Commissioners, Justice of the Peace, etc. On the odd
numbered years we elect under the Constitution, we will be under
the Constitution when these elections become material or im-
portant. That election then, under the Constitution is the general
election because it is biennial. I believe that will define the posi-
tion that I have taken so far as the gentleman from Minnehaha is
concerned.

Mr. Humphrey: I understood you to say that for the election
irrespective of whether the President sees fit to admit us or not by

DI.BAI BS 47.>

proclamation. Oh no, I say that we shall be admitted by Congress
— admitted into the Union. Does the proclamation create a State?
We created it ourselves under the power given us by this Ait <>t
Congress. The President proclaims the fact; it is by virtue of
proclamntion of the fact. Then we are deemed admitted to equal
footings with the original States. The President cannot by proc-
lamation create a State. He can declare the fact simply.

A Voice: When are we deemed admitted into the Union?

Mr. Willis: We are deemed to be in the Union as a State, we
are a State before we are admitted.

Mr. Humphrey: You deem then that we are a State of the
Union ?

Mr. Caldwell: I will make this distinction, if the gentleman
wishes to make an answer he has the right to the floor when I get
through. I will state this: The President by his proclamation
does not create a state. This is nonsense of the very worst kind.
If the gentleman prefers to take such a place I wish to make a state-
ment on the floor of this body. I say that we, ourselves, form the
state and make it ; but we have got to have the people's authority
so to do. Where is the source of power from which we derive that
authority? The Congress of the United States. Here is our
enumerated powers (indicating a copy of the Omnibus Bill). What
is the last act that we can perform? It is the casting of the vote
for the ratification of this Constitution. When the last poll is
closed, if a majority of those ballots are in favor of this Constitution,
if it is republican in form, we are a State. But we are not a State
of the Federal Union until the fact is declared by the President.

Mr. Humphrey: We practically are overstepping our powers
provided by the Omnibus Bill . To illustrate it : Suppose we change
the term of office of the State officers and on that ground tlu- I'IVM-
dent should refuse to issue a proclamation. Would wo still be
a State?

Mr. Wood: No, Sir; for this reason, wo havo tranv
the powers given us. We have not performed tho ;u t \\o have the
legal right to perform. Therefore wo havo destroyed all that wo
did. But if we do comply with tho provisions oi tins ait, tl
President of this United States cannot legally rofiiM- to dot '
a State of the Union. If ho lawfully refuses it it is b*»use v.
transgressed our power.

Mr. Humphrey: Would wo still be a Si

474 SOUTH DAKOTA DEBATES, 1889

Mr. Wood: Most certainly ; I think that when the gentleman
understands fully the legal positions he will agree with me in this.
I say if we comply with the provisions of the Constitution, we go
to work and comply with that act, we are a State and if the Presi-
dent should fail — unlawfully fail — to declare that fact, to perform
his lawful duty, it would not change the facts that we have, under
the law, formed and created a soverign State simply because public
officers fail to perform their duty never changes the legal rights of
anybody. If it did, then legal rights can be changed with great
facility.

Mr. Willis: I want to rise to suggest as a mere piece of infor-
mation that the supposition which the gentleman has made every-
body knows, and nobody better than he and others here, it is an
utterly idle supposition.. That any man would not do his formal
duty after everything has been performed on our part under the
Omnibus Bill ; that the President would fail to perform his part
of that contract ; it is an utterly idle supposition.

A Voice: Who draws that supposition?

Mr. Wood: I never had any such supposition.

Mr. Willis : No Sir ; I am defending the gentleman. (Laughter)

Mr. Dickinson: I wish to call attention to this fact: The
whole strength of the argument that has been made lies upon a
very violent supposition and that is the supposition that the elec-
tion shall be completed, the returns made, and the Constitution
properly forwarded to Washington to be acted upon by the legal
authority there and recommended by the President as having
been promulgated in accordance with the Enabling Act. In the
face of all that the President may hesitate to make his proclama-
tion, this is something which not one delegate on this floor doubts
but that within a month, after all that process shall have been
gone through and we shall have been fully admitted by proclama-
tion of the President ; otherwise there is no effect whatever t'o
the argument made with reference to the contingency that county
officers may have to be elected this fall. The Constitution provides
that the County Auditor shall be elected at the first general election
after wre become a State. But the one argument advanced that
we shall become a State before the President issues his proclamation
is wasted argument. The gentleman admits that we are admitted
when the President issues his proclamation ; I say the whole argu-
ment relies upon a violent proposition. I do not think that propo-

MR. DICKINSON 475

.sition has entered into the minds of any other gentleman upon the
floor unless it is the gentleman himself; it certainly did not enter
into the minds of any of -the members of the Committee when the
report was gotten up. This Article XX therefore was passed upon that
understanding that the Committee believed that it was impos ible
for us before admission into the Union before the elect-ion in Novem-
ber and that therefore the first general election under the Con-
stitution after our admission as a State into the Union would be
in 1890; that is what we contemplated and nothing else. No one
had any idea that the county officers were to be elected this fall.

Then in 1890 there would be. an election of all State and county

officers. While I have the floor I wish to call attention to the fact —

A Voice: Did not the gentleman from Pennington who has

supported this amendment used that as his strongest argument

for shortening the tenure of office of the county and State officers.

Mr. Dickinson: The argument brought before this Convention

was, that we were going to precipitate an election of the county

officers upon the State this fall.

Mr. Neill: How does this shorten their term?
Mr. Dickinson: A year.

Mr. Wood: Where do they get the power to make the tenure
of office of the Governor twenty-seven months?

Mr. Dickinson: Where do we get the power to make the
tenure of office of the Governor seventeen months?
Mr. Wood: From the Omnibus Bill.

Mr. Dickinson: We get it from the Constitution, the people
of South Dakota formally adopted. The Constitution of 188
which we have no power to change, provides for two year* ; there's
where we get our power. It seems to me a strange thing that
anyone should raise the question on this floor; the Enabln
cannot go before the time it would have life under the Constitution
and before the time which the Constitution would make it le^al to
say, submit the question of the election of Senators to your
lature. It cuts right to the lien at least two months until the time
came when they .could regularly take their pla.es under tb
stitution. There is the difficulty to be met wlm h ev
view the question, and the Enabling Act provides f..r tlu-e two
months. We are to get the Legislature before the time whu-h the
Constitution has provided for. It gives a life to the ^.vernment
for these two months, until the time comes when the «.tVu ers \vould

476 SOUTH DAKOTA DEBATES, 1889

regularly take their places under the Constitution. There is that
difficulty to be met. The authority of the Enabling Act is un-
questioned. I can't see where the authority comes in for making
the change as proposed by the gentleman and those who are with
him at this time. We have endeavored as closely as possible to go
by the provisions of the Enabling Act and have the officers in their
places for the term for which the Constitution, made in 1885, pro-
vides, and we believe there is a great risk in making any change.
I was about to say, however, no sufficient answer has been given
to the question which I raised this morning. If by the framers of
the Constitution of 1885 it was intended that the general elections -
should be on even years, why did they in that section say: "All
general election shall be biennial"? The elections on even years
could not be less than that. Was it not intended to apply to the
elections that came on the odd years ?

Mr. Wood, of Pennington: Which does the Constitution refer
to?

Mr. Dickinson, of Day: It refers to both.

Mr. Wood, of Pennington: That is what I contend.

Mr. Dickinson, of Day: It also seems to me that sufficient
attention has not been given to the question whether or not this
amendment is not an actual amendment to the Constitution,
tinder the guise of the Schedule and Ordinance. It is a virtual
amendment to traffic in that or meddle with it or infringe upon
it. Let us go within the bounds of our powers and leave that for
the Legislature. I have been surprised in talking with members,
in discussing here, to^find the prevalence of this spirit — "We are
going to have this any way, whatever the provisions of the Con-
stitutions may be; whatever is Constitutional and legalin this
matter, we ought to have an election only once in two years, and
we are going to have it any way." I will not yield to anyone upon
this floor in the desire that there shall be only one election each
two years, but I believe this is the right and the only constitutional
way, though I can make allowance for that spirit which says, "We
are going to have it any way, because the people want it". What
we have a right to do here is that which will be perfectly safe —
that does not run the risk of leading us into litigation if we adopt
it and recommend it.

Mr. Sterling, of Spink: Mr. President; the argument of the

STERI.INV, ANSWKKS DP-KIN

gentleman last upon the floor is largely upon the same line as his
argument upon the previous question, when the crick-rue of the
fact is brought home to the notice of the President. The President
has what? He has judicial discretion in that? Not at all. His
act is in the nature of a ministerial act;- he proclaims an exiting
fact ; then we are to be deemed ADMITTED into the Union as a State
We are a State before. The fact exists, and the proclamation of that
fact then places us into the Union on an equal footing with all the
other States, and we are not into the Union on an equal footing
until that proclamation is made by the President. We declare
ourselves a State by our vote. There are two provisions of the
Constitution that we cannot change. One is that the Governor
shall hold his office for two years. That don't mean twenty -
long months. It means two years or less; it don't mean more.
Another provision is that all general elections shall be biennial —
once in two years. What is the effect of these provisions? ' Simply
this, in my judgment: A general election and an annual election
are each denned by our law — the law under which we were all
living and paying our allegiance wrhen the Convention of 18&5
framed this Constitution. The statute provides for two elections,
and did then, to-wit: An annual election on odd-numbered years,,
a general election on even-numbered years. Then we have an
election, and these elections occur in November — the first Tuesday
after the first Monday of that month. Now, the Constitution de-
claring that general elections are biennial, the statute declaring
that there are two kinds of elections, "annual" and "general". \ -<>u
wrill all agree with me that the statute must give way to the Con-
stitution, if the two cannot stand together. Now. if all genera'
tions must be biennial, and if there is an election each year, then
these elections I do not contend are annual. They are all 1 icnnial
hence it follows that they must te all general elections, and t Ivy
are general elections, too, under the Constitution. Then,
general elections, what shape do we find ourselves in ''.

Section 5 of Article IX: In i ai h or^ani/.r.l cotffitv, at the
first general election held after the admission of the Sta:
Dakota into the Union and every two Years thereafter, then- shall

ted a Clerk of the Court, Sheriff, County Auditor. K.
of Deeds, Treasurer. State's Attorney, Sur

Superintendent of Schools, whose terms of .-Hive n ' shall

he two years, and except Clerk of the Court nop raon aha!

478 SOUTH DAKOTA DEBATES, 1889

for more than four years in succession to any of the above named
offices.

There are all the county officers. We see by necessary con-
struction that the November election of 1889 provided by the
statutes of this Territory, is a general election, because by the time
this Constitution, if ever in force, will then be in force. We will
be a State by that date and that election will be a general election.
Now, it may be urged that it will not be proclaimed sufficiently early
for the election notices to be posted. Whoever heard of an election
being invalidated for any purpose by a failure to post notices? No
such doctrine was ever pronounced by any court of respectability, so
far as I can learn. The failure then to post notices will not in-
validate an election — will not necessarily void an election if held.
Then I say you will get into a mess of difficulties that can be just
as well avoided as not by keeping ourselves within the limits cir-
cumscribed and laid down before we came here. What is that?
Simply this: We are electing what? We are only electing Gov-
ernor, Lieutenant -Governor and other State officers — this amend-
ment has nothing to do with the Judges. What tenure are we
giving them? The Constitution provides that the tenure of the
Governor shall be two years. Let's read it:

The executive power shall be vested in a Governor, who shall
hold his office two years, a Lieutenant-Governor, who shall be
elected at the same time and for the same term.

Does that mean twenty-seven months? We are a State if
the Constitution receives a majority of all the votes cast, from and
after the first of October, although that fact may not be declared
for some time after — yet we cannot presume that this proclamation
will be delayed for many days. It seems to me it is not a rash pre-
sumption that the fact will be declared of our admission before the
twentieth day of October. The President's duty is to do it. That
being his duty he will proclaim that fact of our admission as early
as possible. Then if we are a State from the first day of October
and that fact is proclaimed as early as the twentieth of October and
we are into the Union on an equal footing with the other States on
the twentieth of October, I don't see why that won't give us time
to post notices. I will say this: My recollection of the statute is
this that it only requires ten days before the election in each pre-
cinct to post these notices of election. If that is true then there
will be no excuse why this election should not be held and all the
county officers elected. Some may contend that there is nothing

WOOD, EDGERTOX, DICKINSON 479

in the proposition. Well I am very often in error — wide of the
mark — but I am sometimes right, and in this matter I think I see
my way sufficiently clea to declare without the fear of sucx <
contradiction, that under this Constitution, it is a biennial el<
and therefore general. Then again —

Mr. Neill, of Grant: How does that amendment obviate it?

Mr. Wood, of Pennington: I will tell you. Fix this tenure of
office so that it will expire on the first day of Jauuary, 1891. We
have got to elect all the county officers; it brings everything to-
gether. In the absence of this, and under Section 20 of the Schedule,
if that section is good for anything, we will have to elect county
officers on even numbered years and other officers on odd-numbered
years.

The supporters of the report contend that there is one wa
get out of the difficulty, and that is, for the Legislature to propose
an amendment to the Constitution. Now, gentlemen of the Con-
vention, which is the best — if that is the way out pf it — v. hkh
I very much doubt? But suppose we could do that and get out
of this s crape in that way, I submit this to you, as the repre
tives of a soverign.people, forming in part and submitting in whole,
the organic law, is it better to make the tenure of office for the first
term, which we have got the power to fix, at a little over one year,
and thus obviate the difficulty and the" early amending of our
organic law? You amend our Constitution as early as that and
people will say "We sent men down there to frame a Constitution
that did not understand their duties".

Mr. Dickinson, of Day, called to the chair.

Mr. Edgerton, of Davison: Mr. President: Do I understand
the gentleman from Pennington to claim that we are to ha
election on the first of November, 1889, by virtue of the Territorial
law?

Mr. Wood, of Pennington: There is an election provided fur,
yes.

Mr. Edgerton, of Davison: I understand you to claim then
that this provision in the Schedule that we will have no el<
after our admission until the fall of 1890, is inoperative'

Mr. Wood, of Pennington: N«>. 1 say it is legislation.

Mr. Edgerton of Davison: Why is that any more K-»i>lati«>n
than it is to provide that the term of office shall expire before the
two years are out?

480 SOUTH DAKOTA DEBATES, 1889

Mr. Wood, of Pennington: For this reason: We are not
holding this election under the Constitution. We are empowered
by the Omnibus Bill to provide for the election of these officers,
and by necessary implication we can fix the tenure of their office,
if we do not extend it beyond the limit fixed by he Constitut on
itself.

Mr. Edgerton, of Davison: I understand you to say that this
provision in the Schedule prohibiting an election after the first of
October, 1889, before the first of November, 1890, is inoperative
bee use it is legislation? Now, I ask why is there any more legis-
lation in that then in the provision in the same Schedule, which
you propose, that their term of office shall expire for the first time,
wi- hin the two yeais?

Mr. Wood, of Pennington: Just this: We have the power
under the Omnibus Bill to provide for the election of these State
officers, but wre have no power to declare when and what kind of
an election shall be held in the future. We are legislating now
for the year 1890. We have no such power anywhere.

Mr. Edgerton, of Davison: As I understand you, we have
power then to shorten their term of office under the Omnibus Bill?

Mr. Wood, of Pennington: I contend that this first term of
office is in our hands, if we do not extend the tenure beyond the
maximum limit fixed in the Constitution.

Mr. Edgerton, of Davison: Do I understand you to say that
that provision that provides that these office: s shall te superseded
is synonymous with the declaration that the State shall te ad-
mitted on the proclamation of the President?

Mr. Wood, of Pennington: No, indeed, I did not say syno-
nymous at all. I read that provision for the purpose of showing
that if this election this fall is a general election — if the Con: tit ut ion
makes it a general election, it will be in force by that time. I read
that section for the purpose of showing what became of the county
officers — that they will be superseded- by the State government —

Mr. Edgerton, of Davison: I understand you to say that they
are necessarily superseded because the Governor and Lieutenant -
Governor are elected.

Mr, Wood, of Pennington: Not at all. I am speaking of
this now independently of the tenure of office — as an independent
proposition.

Mr. Edgerton, of Davison: You and I do not differ upon this, .

EDGERTOX AND WOOD 481

that they may hold until the first of January, 1891, unless there is
a direct provision that they shall be superseded —

Mr. Wood, of Pennington: Well, I am contending that we
cannot allow them to hold beyond January, 1891.

Mr. Edgerton, of Davison: I meant that unless their term
is cut short expressly by the Constitution, that the admission of
the State won't shorten their term of office.

Mr. Wood, of Pennington: Yes, Sir, that is the position I take.

Mr. Edgerton, of Davison: The word "supersede" here means
that they may hold until their term expires unless there is an ex-
press provision.

(EDITORIAL NOTE — There is clearly an omission of some
matter in the official copy at this point. — DOAXE ROBINSON.)
******** this morning, and it is a powerful argu-
ment in the way in which it is presented. When a man expresses
his strong desire as being upon the one side of the question, and
makes the strongest possible argument upon directly the opposite
side, it has a kind of a double-back-action force, — a great deal more
force than if his desire and his argument were in the same direction ;
but I can give the gentleman credit for perfect candor in the argu-
ment, although he has expressed the strongest desire that these
elections should come every two years and has argued strongly
against the power to hold the elections every two years.

Now, Mr. President, and gentlemen, it seems to me — and I
can't look at it in any other way — that there is here a great excess
of caution in this matter. This fear of doing something urn
tutional ; this fear of making an amendment to the Constitution.
If there was any attempt of that kind— any attempt to intnihue
anything in the way of an amendment to the Constitution, then
there might be some fears, but I say this can't be construed in any
such light ; that it is a provisional way of carrying this State govern-
ment into effect and that it is quite customary in the adoption of
new Constitutions to provide that the first term of the State <
elected under the Constitution or elected as provided for in the
Constitution, shall be for a shorter term than the regular term as
fixed in the Constitution.

Now then, I say with reference to this matter of safety
these gentlemen proclaim so largely, that they are willing to forego
every question of what is sound policy for us to. adopt in or.
State ; they are willing to forego every item of expense there is in

482 SOUTH DAKOTA DEBATES, 1889

it; they are willing to forego what the people almost universally
desire in regard to the time of these elections, all for the question
of "safety", in which I can see nothing whatever. I say in the face
of the precedents that we have in the framing of other Constitutions,
in the face of the reasonableness of this thing, that this matter is
provisional and we can surely provide that this election may occur
in the fall of 1890.

Mr. Dickinson, of Day: Has any other Constitutional Con-
vention ever been tied down as we are ?

Mr. Sterling, of Spink: I think so. I don't see in what par-
ticular limits we are tied down, as far as that is concerned. I made
allusion to the Nevada Constitution this morning. I have it here.
I do not th'nk any trouble ever arose over it from the fact that it
provided that the terms of the State officers should be four years,
and then provided that the term of the officers first elected under
the Constitution should be two years — ju&t half that which was
prescribed as the term generally for those officers.

Mr. Hole, of Beadle: In that case, Mr. Sterling, it had not
been subm'tted and voted on?

Mr. Sterling, of Spink: I don't think it had, but as to that,
there is where'the gentlemen this forenoon laid great stress, f om
the fact that the Constitutional Convention of 1885 elected State
officers for two years, making an election come again in 1887, and
I admit that were elected for that. But suppose they did? As I
said this morning, there is no question as to the interpreta.ion by
them as to their power under that Constitution for an election to
come at any other time, and all the circumstances under which they
adopted that Constitution and that Schedule and Ordinance show
that they never considered the question of the'r power to fix any
other time. The Constitution was framed, as we all know, without
any Enabling Act back of us ; it was not known when we would be
admitted, but it was thought we might be admitted within two
years, and if we were, then we would have the officers for State
government, and that is all they thought about it. There was an
evident desire, so far as county officers were concerned, to provide
that they should hold their offices until the next general election
after the admission into the Union of the State They wanted all
parties and all factions organized to secure a large vote upon that
Constitution and thereby the admission of the State into the Union.
I can't see, Mr. President, any great danger in this at all. I think

STERLINGS OPINION

gentlemen magnify the danger. This very same thing has
done before, and I say, when the gentlemen talk about what
tions they had in mind when they spoke of general elections . that
they had in mind the general election as it was provided and under-
stood then, and I don't know by what fiction the gentleman from
Minnehaha can say that the general election is not in the even num-
bered years. It has never been heard of, that I know of, until he
proclaimed it upon this floor, and I am satisfied that the members
of the Constitutional Convention in 1885, had no other idea than that
it was in the even-numbered years, and that they provided that
the county officers should be elected at the first general el-
after the admission of the State into the Union. That is when they
used the words "general election" or "general elections" with ref-
erence to a particular year. They said again that all general elec-
tions should be biennial, and I don't believe in that other fiction,
that they used the words "general election" then with reference
to annual elections.

Mr. Humphrey, of Faulk: Mr. President; just one word.
First, as a question of privilege, I would like to assure the gentle-
man from Aurora, that it was not with the intention of asking a
fictitious question that I asked the question I did, but to bring out
in as bold a manner as possible the difference in the positions taken
here.

Now, as to the power of this Convention to extend the term
of these officers to twenty-seven months. The wording of the Com-
mittee on Schedule may have been unfortunate. Their ma
intention was to provide that he should hold his office until his
successor had qualified. They had the power to do as they pleased
at that Convention; we have not. It certainly would be tl
thing for us as long as it is in our power to follow in th< .
and follow in the same line.

Mr. Wood, of Pennington: Where did this Convention get
the power to make the term of office of the Governor twenty
months ?

Mr. Humphrey, of Faulk: I don't say they had the \
do that. The other way might have l.i-en the better v
it. Technically they might not have the power to extend
term one month, any more than to extend it «»ne year, 1-ut the
manifest purpose was simply to provide for the oti:
vacant a month before or a month after, but simply to li-.l-i

484 SOUTH DAKOTA DEBATES, 1889

offices until their successors had qualified. We can be but safe in
following the footsteps of our predecessors in doing what they did,
when they had full power to do what they did, while we have not.
Mr. Williams, of Bon Homme: Mr. President; as this is my
amendment, I would like to say a word. The argument of the
gentleman from Day is such that, while my friend Mr. Sterling, I
will admit, shows a spirit of great candor, and we can all certainly
give him credit for it, I think he is mistaken, for he agreed with
me upon this proposition for the same thing, and that is, unless we
are transcending the provisions of this Constitution, that it is not
a virtual amendment to the Constitution. It in no manner in-
fringes upon one solitary section or phrase of the Constitution.
The position taken by myself in framing that amendment was
that this is only a provisional measure and that it in no manner
governed or controlled under the Constitution, further than
that the Constitution points out the officer, and that is that this
Convention, by this Ordinance, follows, the Constitution in the of-
ficers to be elected, but it is not bound by the provisions of the
Constitution as to the terms of office, and having the power to act
provisionally we have the power to fix the term of these provisional
officers so that their successors will be elected under that Con-
stitution at the time we elect the other officers. I cannot agree
with the position that we must elect county officers this fall. I
say we must let them hold over, but I think we have the power to
e1ect them. It is as we please about that. Hence, the purpose of
the amendment was not to permit the officers to hold over until
their successors were elected, but the intent is that the new officers
may take their offices at the same time that the terms of these
count officers expire, and that then we will have an election and
elect a full set of State officers and a Legislature. I wish now,
once more, to explain that in 1890 we will have to elect a full set
of county officers. The provisions of the report are that the State
officers, and the legislators' terms shall expire in January, 1892.
Then we are necessarily compelled to have an election for the State
officers and the Legislature in January, 1891 ; then in January, 1892,
we will be compelled to have an election for county officers again,
and then in January, 1893, another election for the Legislature
and the State officers ; so that the bill as it comes from the Com-
mittee virtually provides and coerces the Legislature into pro-
viding for an election every year, and that is the thing the amend-

WILLIAMS AND VAX BUSKIRK 485

ment is intended to obviate — to provide for these provisional
officers to hold their terms for only such a time that they will ex-
pire with the county officers, in 1891.

As to the amendment to the bill forcing an amendment to
the Constitution, I can't see where the gentleman gets his idea.

I will say this, further, that the sentiment of the people now
and the sentiment of the people in 1885, was that we have only a
general election once in two years ; and I say further, whatever
the sentiment of the people at large, if you elect a convention of
delegates, that the Convention carries with it the sentiment of
the people. There can be no question of a doubt but what that
sentiment was carried into the Convention and operated upon by
the members of the Convention, and ought to be in this case.

Mr. Van Buskirk, of Codington: Mr. President; I wish the
Convention would bear with me just one moment. I had hoped
that some member of the Convention would reach one of the prop-
ositions that is troubling me. The question occurs to me, if it had
not been for the provisions of the Omnibus Bill, under and by
virtue of what law or authority would we have elected these State
officers at all? I am a little at sea as to what we would have to
do except for that bill, in the election of State officers at this time.
I would ask gentlemen of the Convention to point out under what
law they would hold the election for Governor, except for the pro-
visions of this Omnibus Bill? When would you have held that
election? I am unable to find out from anything that has been
said here. By virtue of what authority would we have elected
these officers, or at what time would we have elected them? I
apprehend that Congress when it passed that act understood very
well that there was a statute in this Territory that provided that
we should hold our election at a given time, and when they eume
in and said that this Convention might provide for the election
of State officers, they enacted that statute with the view that \\e
might bridge over this period between the time we should adopt t his
Constitution and the time we should hold the election in the State
of South Dakota. If any gentleman on this floor can point me to
a statute under which we could have elected State officers this fall.
I would like to have him do it. Our power to elect officers <
by virtue of the terms of that Omnibus Bill. They did not, of
course, say atwhat particular time their term shall expire, but thev
knew we had a statute in this Territory l.y \\hu 1;

486 SOUTH DAKOTA DEBATES, 1889

we held general elections, and that said that these officers were
going to hold over until such a time as the people of this new State
of South Dakota should hold an election and elect the new State
officers ; and therefore they stepped in here and provided what other-
wise would have been a perfect blank, and we should have had the
means to elect them at all. Suppose we should not have been
admitted until some time after the first of January, if you please.
These gentlemen, according to the argument that has been offered
here, would have been elected and held two years, and they would
have been away over somewhere — depending upon the circum-
stance of the period when we might be admitted by proclamation
of the President or act of Congress and recognized as a State.
Now it seems to me that the gentlemen who drew that Bill were
men who understood the history and something of the situation -
here. They step in here and say: "In order that they may
reach that time when they hold their State elections, this Con-
vention may provide for the election of officers until such time as
the officers elected under the Constitution can qualify".

It is a good deal for the gentlemen to speculate upon what the
Constitutional Convention of 1885 meant. They said, however,
that the elections in this State, when it became one, should be
biennial, and that all elections should be general, and they used
those terms understandingly. They said that those elections
should be biennial. I would give a good deal more for, and I have
a great deal more confidence in undertaking to get at what they
meant, by what they said, than to rely upon the speculations of
what others here think they might have meant.

Mr. Dickinson, of Day: Isn't it fair to get at what they meant,
by what they did?

Mr. Van Buskirk, of Codington: Well, so far as that question
is concerned, I remember some years ago that a gentleman was
arguing a question before the Court of Appeals as to what they
meant in the Legislature in New York, and the Court said: "I
don't know anything about what you meant, but I do know what
you said;" and that is the condition of things that we are in here.
I say we could not have any provision for the election of State of-
ficers except for the terms of this Omnibus Bill. Unquestionably
they intended we should fix the terms of their offices so they should
expire exactly at such a time as under the laws of this Territory
we are authorized to hold a general election,. and as provided by

STATING THK Qn-sTiox 487

statute. It seems to me that was the reasonable internment
of that body. That is the reason I have stood upon this question
as I have. We have got no time provided for the election of
officers except by that bill, and it seems to me it is fair to presume
that Congress meant we should bridge this time over until such
time as our State officers could be regularly elected.

(Cries of "Question, question, question.")

The President of the Convention: The gentleman from Beadle
moves the adoption of Sections 19 and 20 of the Schedu'.
Ordinance, and the gentleman from Bon Homme moves an amend-
ment. As many as are of the opinion that the amendment be
adopted, say aye as your name is called; those that are opposed,
say no.

Mr. Sherwood, of Clark: I ask that the particular amendment
be restated. Part of it has been withdrawn.

The President of the Convention: You will find it on page 3
of the proceedings of the Twenty-ninth day, except that "1894"
is stricken out.

.Mr. Williams, of Bon Homme: The amendment is that where
the dates "1892" occur in that section, they be stricken out and the
date "1891" be inserted — not affecting the term of office of the
judges, as provided in the report.

The President of the Convention: If this is not the
amendment, you had better send it up to the Clerk.

Mr. Willis, of Aurora: Mr. President ; it was understood verb-
ally that the other part of the amendment was withdrawn, and I
think the gentleman has proceeded with that understanding,
although perhaps the written amendment was not sent to the
Clerk.

The President of the Convention: "Understandings" will
not appear in the Journal. If it is different from this. y..u had
better send it up in writing, Mr. Williams. The m-i.nl hnv >h..\vs.
as I have stated, on page 3. Now, the Clerk has this: Mr. Wi
withdraws so much of his motion as refers t<> ls(M". That
way the record stands. Consequently it stands just .
before— to amend Section 19 by striking out the da
where it occurs in said section and inserting in lieu thereof tb
"1891".

Mr. Jolley, of Clay: If the amendment stands l.y striking
out the word "1892" and inserting in lieu thereof the word " !

488 SOUTH DAKOTA DEBATES, 1889

why, putting the whole amendment in and then following it by
that entry on the part of the Clerk of that part of it which is with-
withdrawn, it will make a very damaging and bungling record.

(Cries of "Question, question, question".)

The President of the Convention: The amendment that is
before the Convention is as I have stated it. The first amendment
was in yesterday's proceedings, as printed; the offer to withdraw is
in today's proceedings. It stands disconnectedly.

As many as are of the opinion that the amendment be adopted
say aye as their names are called; all those of a contrary opinion,
no.

The roll was called (Page 148, bound Journal)

Mr. Neill, of Grant: Mr. President, I wish to explain my
vote. On the last roll-call on this question I voted no, being
somewhat unacquainted with the phase of the argument at that
time and supposing that the whole question rested upon the pro-
vision of the Constitution of 1885, but on further study it comes to
my mind that this election is governed entirely by the Omnibus
Bill, and consequently I vote on this question, aye.

The President of the Convention: There are 40 ayes and 32
noes. So the amendment is adopted, and the question now recurs
upon the adoption of Section 19, as amended.

Those of the opinion that Section 19 be adopted, say aye;
those of the contrary opinion say no. The ayes have it.

Mr. Wood, of Pennington: Mr. President; I move you that
the action of the Convention in adopting Section 19 be reconsidered,
and I move to lay that motion on the table.

A Delegate: I second the motion.

The President of the Convention: It has been moved that
the action of the Convention in adopting Section 19 be reconsidered
and that the motion to reconsider be laid upon the table. Is the
Convention ready for the question ? As many as are of the opinion
that the motion prevail, say aye; those opposed, no. The ayes
have it and the motion prevails.

Mr. Kellam, of Brule: Mr. President; I think I was mis-
understood last evening in presenting the agreement which formed
a part of the report which the Committee composing the Joint Com-
mission from South Dakota offered, and I only did that at that
time, as I thought it then fully explained, to forestall the news-
papers in the printing of the report. I thought it would be im-

AGREEMENT WITH NORTH DAKOTA 489

proper to have it appear in the papers before it was formally pre-
sented to the Convention.

The Committee named by this Convention to form a part of
the Joint Commission as provided by the Act of Congress under
which this Convention is assembled ask leave to submit the follow-
ing report:

First ; the agreement that was presented last evening. That
agreement is attached to this report and marked "A".

Second ; the recommendation of said Committee of an Article
to be incorporated into the Constitution to be submitted, respecting
Territorial debts and liabilities, as provided in said Act of Congress,
hereto attached, marked "B".

Your Committee also recommend the adoption as an Article
of the Schedule of the Constitution, the Agreement of said Joint
Commission concerning the records, books and archives of the
Territory, the same to be preceded by the following words, to-wit :

"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 is in the words and figures following,
that is to say;"

Then follows the agreement, which is a part of the agreement
reported. I ought perhaps to say in explanation of this report
that the duty devolved upon this Commission, as the Commission
interpreted it, was to deal with three different and independent
items; first, the debts and liabilities of the Territory; second, the
property of the Territory ; third, the records and books of the Ter-
ritory. As I stated to the Convention last night, upon the as-
sembling of the Commission there soon developed a very radical
difference in the views of the members of both Commissions as to
the authortiy of the 'Commission in the disposition of the books
and records. If the gentlemen will look at Sections 5 and 6 of
the Omnibus Bill, they will see an apparent want of harmony be-
tween the two sections. One view was {hat the words "by the
State" in Section 5 were used deliberated and with the evident
meaning that the records should remain at Bismarck until after the
organization of the different States and through their legislatures
an arrangement was made for them. The other view was that this

490 SOUTH DAKOTA DEBATES, 1889

disposition of the records was a part of the duty imposed upon
this Commission, as recited in the next section of the Enabling Act,
which says that this Commission shall also make disposition of
the records and books of the Territory ; and under these circum-
stances it was determined by a resolution adopted by the Com-
mission early in their deliberations, that whatever agreement we
did reach concerning the disposition of the books and records of
the Territory, in order to bring it within the apparent terms of
Sect 'on 5, should be reported to the Convention of each State, with
a recommendation that that agreement be incorporated into the
Schedule of the Constitutional Convention, and thus submitted,
if ratified, it became the agreement of the States respectively.

I think that is all, Mr. President, that- I have to say on the
report. While we understood perfectly well that it was no part
of the legitimate duty of this Commission to frame an article to
be incorporated into the Constitution, as provided by the Enabling
Act in reference to the debts and liabilities of the Territory, still,
that act absolutely requiring the agreement reached to be incor-
porated into the Constitution, we agreed between ourselves that
we would frame such an article and that it should be signed by all
the members of the Commission and should be reported to each
Convention, so that the article adopted by the North Dakota
Convention and the article adopted by this Convention should be
the same. It was thought better that they should be uniform;
and so this Committee has gratuitously recommended an article,
setting forth substantially this agreement, as an article which ans-
swers to the requirements of the Enabling Act. I might say fur-
ther, as there may be no other opportunity, that under this agree-
ment the Territorial library becomes, upon the taking effect of
the agreement, the property of South Dakota. After the agree-
ment was reached we caused a very accurate catalogue of all the
books to be made, and this Committee has that catalogue, and,
while it is no part of the duty imposed upon us, it perpaps ought
to be returned to this Convention and taken care of until the
books are taken possession of. I think there are about eight
thousand volumes in the library.

In behalf of the Commission I will add that if in the examina-
tion of this agreement there should be anything that appears un-
intelligible, or anything in the agreement that gentlemen are dis-

ADOPTION OF THE REPORT 491

posed to criticise, \ve would like to have an opportunity of explain-
ing the circumstances undier which that particular item wa
posed of.

The President of the Convention: Do I understand you to
move the adoption of this as a separate article of the Constitution?

Mr. Kellam, of Brule: I move the adoption of that part of the
report which is marked "B" and referred to in the formal report,
as a part of the Constitution, to be referred to the Committee on
State Indebtedness, so that they may put it into its proper order
in the article of the Constitution which they have the management
of.

The President of the Convention: It is moved by the gentle-
man from Brule, that this be referred to the Committee on Municipal
and State Indebtedness. Is the Convention ready for the question?
As many as are of the opinion that the motion prevail, will say aye ;
those opposed, no. The ayes have it and the resolution is adopted.

Mr. Kellam, of Brule: I move that the second part of the re-
port, which covers the agreement with reference to the books and
records, be referred to the Schedule Committee.

The President of the Convention: It is moved by the gentle-
man from Brule that the second part of this report, that with ref-
erence to the books and records, be referred to the Committee on
Schedule. Is the Convention ready for the question? All those of
opinion that the motion prevail, say aye; opposed, no. Tin
have it and it is so referred.

Mr. Price, of Hyde: Mr. President, I move we adjourn.

Mr. Jolley, of Clay: Mr. President, I move wo adjourn until
nine o'clock tomorrow morning.

A Delegate: I second the motion.

Mr. Brott, of Brown: Mr. President, I have received a call
from home that requires my presence there tomorrow, and as our
duties are nearly over, I would ask to be oxruso-1 from furtl,
tendance here, and I would ask that Mr. Stoddard be allov.
sign my n.ame to the Constitution.

The President of the Convention: Tho ijont Ionian from :
asks that he be excused froTn further attondamo upon the Con-
vention and that Mr. Stoddanl bo allowod to sii:n his naiiu- to the

492 SOUTH DAKOTA DEBATES, 1889

Constitution. If there is no objection, it is so ordered. There
being no objection, it is so ordered.

It has been moved that the Convention now adjourn until
nine o'clock tomorrow morning. As many as are of the opinion
that the motion prevail, say' aye ; those opposed no. The ayes have
it and the Convention stands adjourned.

THIRTY-FIRST DAY.

August 3d, 1889.

Convention called to order at nine o'clock A. M., by the
President.

Prayer was offered by the Chaplain.

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

The Clerk proceeded to read the Journal.

Mr. Sterling, of Spink: Mr. President, I move that the further
reading of the Journal be dispensed with.

The President of the Convention: If there is no objection,
it will be so ordered.

Mr. Hole, of Beadle: Mr. President, we wish to report back
the part of the report made by the Commission sent to North
Dakota which was referred to us on yesterday, and in reporting
this back I would move the suspension of the rule that requires it
to be laid over for one day, and move, further, the adoption of this
report, Section 23 of our Schedule.

The President of the Convention: The Secretary will read
the Section 23.

The Secretary read the report of the Schedule Committee.

Mr. Hole, of Beadle: Mr. President; as I understand it. we
have no power whatever to change this in any particular wh;r
and I move that the rules be suspended and the report of the Com-
mittee on Schedule be adopted.

A Delegate: I second it.

Mr. Humphrey, of Faulk: Mr. President, in view of tl
that it is not within our power to reject this part of the agreement ,
I am in favor of the adoption of the language of the Omnibus Bill,
and I would move you to amend the report l.y iiMng the won! "in-
corporating" instead of "adopting".

494 SOUTH DAKOTA DEBATES, 1889

The President of the Convention: As many as are of the opin-
ion that the rules be suspended, say aye ; those opposed, no. The
ayes have it and the rules are suspended. The question now re-
curs upon the amendment of the gentleman from Faulk.

Mr. Price of Hyde: Mr. President ; I desire to state, if I under-
stand the report which has just been read, it refers to the books,
records and archives of the Territory. I understand the gentleman
from Faulk to say that it is obligatory upon this Convention to
adopt this; that it has no power to change it. I don't know that
that is true. The Commission have recommended that a certain
article be adopted and incorporated in the Constitution. That,
I understand, is what has been read. Of course they can change it
if they want to. There is no necessity of it.

Mr. Humphrey, of Faulk: Mr. President; as I understand it,
property is assets, and I can't conceive that there is any power in
the Convention to go behind the report of this Committee. I
understand that I am in favor of its incorporation, but I am only
in favor of using the word "incorporating" instead of adopting."

The President of the Convention: The question is upon the
amendment. As many as are in favor of the adoption of the
amendment, say aye; those opposed, no. The Chair is in doubt.
Those in favor of the amendment, rise and stand and be counted.
Those of the contrary opinion, rise and stand and be counted.
The amendment is lost. The question recurs upon the adoption of
the report of the Committee. As many as are in favor of the
adoption of the report, will say aye; those opposed, no. The ayes
have it and the report is adopted.

Mr. Hole, of Beadle: Mr. President; I would move you that
this report, as now submitted and adopted section by section, be
adopted as a whole.

A Delegate: I second the motion.

Mr. Price, of Hyde: Mr. President, do I understand that
the article reported by the Commission has been adopted —

The President of the Convention: The Chairman of the Com-
mittee on Schedule now moves that the report of the Committee
on Schedule, as it has been reported and adopted section by section
by the Convention, now be adopted as a whole. Are you ready
for the question?

Mr. Hole, of Beadle: Mr. President; in Section 7 there was
a provision adopting the former Constitution, so far as election

LIMIT OF INDEBTED 495

purposes is concerned, as a part of the Schedule, and making that
the rule. Now, by the amendment of last night it is made con-
tradictory, and I would make a motion to reconsider Section 7,
with the purpose of striking it out.

The President of the Convention: It is moved that the adopt-
tion of Section 7 be reconsidered.

Mr. Hole, of Beadle: If there is any objection, I will let it
stand as it is, and ask for the adoption of the report of the Committee
on Schedule, as a whole.

A Delegate : Well , what 's the use of—

Mr. Hole, of Beadle: I will withdraw it.

The President of the Convention: The question is upon the
adoption of the report of the Committee on Schedule, as a whole.
Is the Convention ready for the question ? As many as are of the
opinion that the report be adopted say aye ; opposed no. The
motion is carried and the report of the Committee on Schedule is
carried and the report of the Committee on Schedule is hereby
adopted as a whole.

Mr. Sherwood, of Clark: Mr. President, I send up the report
of the Committee on State, County and Municipal Indebtedness
and move that the report be adopted.

A Delegate: I second the motion.

A Voice: Well, I'd like to hear the report read.

The report of the Committee was read by the Clerk.

Mr. Williams (of Bon Homme) called to the chair by the
President.

Mr. Edgerton, of Davison: I would like to ask the judgment
of the gentleman as to what the debt would amount to provide!
the Legislature issued bonds to the amount contemplated by tin's
section.

Mr. Sherwood: It would be impossible to say what tl>.<
debt would be. We have the figures to submit at $740,700.0(1 and
$6,500.00 in addition to that. We desire to say further that tin-re
are two or three items that are very urn ertuin, surh as runn::
State from now on which can not be exactly fixed upon.

Mr. Edgerton of Davison: It is with some rehutuu<
I am constrained to oppose the report «>t" the Committee. Mr.
President, I do not think at this time in the history of this eommon-
wealth we are prepared to give the Legislature the power to run
us in debt $500,000 more than $750.1)00 we are .ompelled I

496 SOUTH DAKOTA DEBATES, 1889

sume under the Omnibus Bill by the report of the Committee.
I know gentlemen may tell me that it is only a power that will
not be exercised. I think the experience of every man in this Con-
vention will bear me out that the Legislature in all human prob-
ability will run us in debt to the limit allowed by the Constitution.
In other words that the State of South Dakota will be in debt the
$750,000 that we are compelled to assume under the Omnibus Bill
and also $500,000 that we are allowed by the report. I want to
call the attention of the Convention to certain provisions in our
Constitution in reference to the indebtedness referred to. Article
XI, Revenue and Finance, Section 1: "The Legislature shall pro-
vide for an annual tax sufficient to defray the estimated ordinary
expenses for each year; not to exceed at any one year two mills on
the dollar of the assessed valuation of all taxable property in the
State, to be ascertained by the last assessment made for State and
county purposes. And whenever it shall appear that such ordmary
expenses shall exceed the income of the State of such year, the
Legislature shall provide for levying a tax for the ensueing year
sufficient with other resources of income to pay the deficiency of
the preceding year, together with the estimated expenses of such
ensuing year." It is the following part of the section particularly
I invite the attention of the Convention to. "And for the purpose of
paying the public debt the -legislature shall provide for levying a
tax annually, sufficient to pay the annual interest and the principal
of such debt within ten years from the final passage of the law
creating the debt, provided that the annual tax for the payment of
the interest and principal of the public debt shall not exceed in
any one year two mills on each dollar of the assessed valuation
of all taxable property in the State as ascertained by the last as-
sessment made for State and county purposes." That is, in other
words, we now propose to put it in the power of the Legislature to
increase the debt over $750,000, $500,000 which will make the total
debt $1,250,000. One-tenth of that amount is to be paid annually ;
that is in addition to the two mill tax that we pay for the ordinary
expenses of the government we must pay an additional two mill
tax or sufficient thereof to meet the interest and one-tenth of the
principal. In other words that we must pay $125,000 of the prin-
cipal together with the interest annually. If any gentleman upon
this floor can see the immediate necessity of granting this power to-

LIMIT OF INDEBTKI- 497

the Legislature I would like to hear about it. In the tint place-
you may say it is nee eisary for the em ti«m of a public buildim
man will claim that there is any necessity fur any expensive
public buildings for the next three years. However, in all human
probability the capitol will not be permanently located for the
next three years. I shall be the last one to oppose any reasonable
appropriation to build a suitable and proper capitol building at
the seat of government wherever the people of South Dakota may
locate it. But at present I do not see the necessity for this extra-
ordinary power. In the next place our Constitution is so easily
amended ineffect, I am of the opinion it is one of the defects of that
Constitution that it may be so easily amended. It is only i
sary when an extraordinary expense is to be rendered to submit
the proposition to the people that the people may ratify it. If
this limitation is placed at $850,000, that is $100,000 over and
above the $750,000 that we are compelled to pay by the ( mnibus
Bill by the report of the Committee. If we need more than the
$100,000 submit the proposition to the people and let the ;
determine whether we need the additional amount to the amount
of $100,000 or $200,000 or $300,000 over and above that amount.

The State starts in with an extraordinary debt for
State ; starts in with a fixed debt that it is impossible for us to i
of $750,000. Now we are asked to give the Legislature the .
ordinary power that exists in but few of the States, that of running
the State in debt for another $500,000 over and above the $750,000 .
I think I state it advisedly when I say this is an ex-
power There are but few states that give the power to the '
lature to do as recommended. I think many of the States '.
it to $50,000 or $100,000 and went into practically

out of debt. Now, by this report we are called upon t<
indebtedness of $750,000 back of us and fix a debt an unuilating.
Let me take this opportunity to say that the Conimitu.
to North Dakota secured for us a report of settlement that
only just but eminently fair and \ while

I assume that that is fixed by the report of the Commute
the Omnibus Bill, let us go cautiously when we atteim I
upon the people a debt, xmU-s it seems absolutely • with-

out first submitting it to vote of i <-\vn opinion is

that $100,000 is amply sufficient to meet all t!
we may be called upon t<

498 SOUTH DAKOTA DEBATES, 1889

permanent capital shall be fixed; unless we submit the proposition
first to the people.

For this annual revenue you may count upon two mills tax
which is estimated here to be about $248,000 per annum. That
may be disbursed because being an annual revenue will require
no extraordinary powers. We have heard the statement advanced,
this is based upon the history of the past largely ; that is estimating
the assessed valuation of Dakota to be $100,000,000. That two
mill tax that is allowed for the ordinary expenses of the government
there would be a revenue of $200,000., from the railroads $33,000.,
and from other sources $15,000, making an annual revenue of the
State, as near as we can approximate it, $248,000 That is not
within the limitations of the Constitution because that is the
ordinary annual revenue of the State government that can be dis-
pursed by the Legislature. The expenditures, so far as I have
been able to ascertain them, I will say this is a table that was pre-
pared with some care by Mr. Ward, a citizen of this city, formerly
auditor of this State, for the maintenance of State institutions,
$223,905. and for standing appropriations necessary to run that
State government, $100,000. He estimates the expenses of the
first State Legislature at $90,000; total expenses, $448,905; con-
sequently it will be seen by any person that the necessary and ab-
solute expenses of the government for the next t\vo or three years
will be very large unless this is anticipated, should we give the
Legislature power to borrow money for the anunal expenses of the
government. This is ah extraordinary power granted to them
under the report of the Committee. It is unnecessary and if you
do that, unless it changes the provisions requiring one-tenth of
the principal to be paid annually, this certainly is unnecessary.
Taking either view of it in my opinion at this time it is uncalled
for. If we are called upon at any time to meet extraordinary ex-
penses, let us submit the proposition to the people and if they
believe that such extraordinary expenses are warranted, the people
of South Dakota will immediately grant the power ; if they believe
it is unwarranted then of course there is no necessity for having
this in the Constitution. Therefore, for these reasons, I am com-
pelled to vote against the adoption of the report of the Committee.
I do it, as I said in the first instance, with great reluctance.

Mr. Boucher: Do vou believe that this Convention has the

LIMIT OP INDEBTEDNESS 499

right to raise revenue on the State indebtedness at all exc-
far as it is held by the Omnibus Bill ?

Mr. Edgerton of Davison: I think, to state it accurately,
we are acting under the Omnibus Bill. That is a limitation of
our powers. The Omnibus Bill provides absolutely that we must
assume our proportion of the Territorial debt and that pro])'
as adjusted by the Joint Commission. It says still further than
that that we shall have the power to make all necessary amend-
ments of the Constitution of 1885 to carry out the express provisions
of the Omnibus Bill and the Omnibus Bill provides that we must
assume 8750,000 of the Territorial debt. The Omnibus bill pro-
vides that we shall make our amendments to the Constitution of
1885, that shall be necessary to give full force and effect to this
obligation on our part. Consequently my own opinion is, that
the power being granted to this Convention by the Omnibus Bill
we have the right to so adjust the Constitution of 1885 that we
provide for the payment of the $750,000. I do not believe that
that means in addition to the original limitation of $500,000. I
believe in a fair construction of the Omnibus Bill. The Constitu-
tion provides that we must so increase the limitation as shall ab-
solutely compel the State to pay $750,000. I know some gentle-
men upon this floor believe that our power is to so increase the
limitation that the Legislature shall have the power to fix th<
as these gentlemen of the Joint Commission have reported. My
own opinion is that we have the right to make the limitation that
the Committee have reported. I do not believe that we have the
right to exceed the powers of the Omnibus Bill in this Constitution.
I believe that they have the report to this Constitution that we
must assume $750,000 and also leave the limitation at $500,000
as they find it in the Constitution. I believe the Committee have
exceeded the powers of this Convention, that is simply a qr.
of business for the future State. Shall we adopt the report of the
Committee that will fix the liability of the State at $750,000 under
the Omnibus Bill and leave the original amount $500. ooo as in the
Constitution of 1885?

Have we the further power of only increasing the In-
to $750,000 and leave the power in th« Legislatw
bonded indebtedness whatever without tirM submitting the p

sition to the pei.plr? A number of states ha\
limitation, notably Miehigan. that n<> Legislature ran mai

500 SOUTH DAKOTA DEBATES, 1889

debt without first submitting the proposition to the people ; I think
it is Michigan, I would not be certain. As I said before, in my
opinion there is an intermediate force, that is that we pay this
debt that we are compelled to pay under the Omnibus Bill, of $750-
000, and also in addition to that that the Legislature shall have the
power over and above the current revenues of the State from year
to year, to run us in debt a bonded indebtedness of $100,000.
In other words, it amounts to this proposition: Increase the
$500,000 to $850,000. As I said before, I believe that the Com-
mittee have gone beyond the power given them by the Constitution
and by the Omnibus Bill ; gone —

Mr. Williamson: I wish to offer the following amendment.
I wish to amend the report of the Committee by striking out in
Section 2 the figures $500,000 and inserting in lieu thereof $850,000,
and by striking out the Section 3 entirely of the report of the Com-
mittee.

Mr. Lee: I believe, Sir, in letting the majority rule. That
is one of the principles I have fixed, heart principles. Consequently
I did not see fit to bring in a minority report. But myself and
one other member of the Committee voted $300,000 when they had
•the report under consideration. I believe in economy, hence I
heartily support the motion of my friend on the right. $500,000
is too large.

Mr. Sherwood: Perhaps it would be proper to tell the reason
why the Committee came to the conclusion to which the finally
came in regard to this matter. Before we go any further into the
details in this discussion I desire to say that the view of the Com-
mittee in this matter was this: We held to this position, that
the intention uf the Constitutional Convention of 1885 was the
creating of an indebtedness of $500,000 and that the intention of
the Convention was to ask Congress to enact a law that we should
assume and pay a certain proportion of the debt of the Territory
of Dakota, as shall be provided. Then our idea is that we are to
follow but the law of Congress by assuming whatever debt this
Joint Commission settle upon us, yet we are not compelled to amend
the Constitution of 1885 by changing the $500,000 to any greater
or le s sxim in order to conform with the provisions of the Omnibus
Bill and assume this debt. That we assume the debt that this
Joint Commission has found to be our proportion of the debt of
the Territory of Dakota, then we stand in this position that we do

LIIMT OH INDEBTEDNESS

not find it necessary to amend the Constitution <,t 1SS5 at all,
neither do we find any warrant to amend the Constitution by i hang-
ing the limit of $500,000. That was the view of the Conn:.-
none of the Committee considered that we had any right to change
Section 2. The Omnibus Bill provided for incurring that portion of
the debt of the Territory of Dakota provided for in the Omnibus
Bill, to-wit: $750,000, a certain sum, and having provided for
all that we do not see it is abusing the power to change the limit of
$500,000 fixed under the Constitution. I think the question of
power will come in here properly and after a careful examination
of the subject the Convention shall decide that it was the intention
of the Constitutional Convention of 1885 to fix the limited indebted-
ness at $500,000, then we are bound by that limited indebte
and cannot do more or less than accent the indebtedness fixe<l by
the Joint Commission.

In relation to the amendment of the gentleman from M

Mr. Williams: If the gentleman will allow me I will offer
another amendment in lieu of the last one made by myself. To in-
insert the figures $100,000 in lieu of the figures $500,000 in S.
2. That will be the only change which I wish to offer.

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

The Chairman: The question before the Convention is upon
the adoption of the report of the gentleman from Clay ; to that the
gentleman from Moody moves an amendment to insert
100,000 instead of $500,000 in Section 2.

Mr. Sherwood: I desire to state one or two thin-
possibly be admitted into the Union before about the tir>-
ber next. As I understand it the Territorial tax is levied, will be
levied prior to that time; the tax of the State of South Dakota will
have to rely upon a levy prior to the time \vc become
the gentleman from Davison is correct. He estimates the running
expenses of this State to be $448,905., including the support
public institutions and our Legisla-

Mr. I'Mgerton of Davison: It includes all del
on the bonded indebtedness, maintamatu e of the state UlStituI
the landing appropriation for the expel

government ; the expenses of the Legislature; the whole will amount
to $448,900.

Mr. Sherwood: I understand also the:<
who have figured that the revenue will arnou: I it $238,000

402 SOUTH DAKOTA DEBATES, 1889

Mr. Edgerton, of Davison: In Section 11, the Legislature
has power to levy an additional tax of two mills.

Mr. Sherwood: Those extra two mills would not be levied
until we become a State and levy a tax regularly a's a State. May
I ask you this question? The two mills/ — assuming we are limited
to two mills, — the present levy will be made in view of the law in
existence. If that be a fact there will be a deficit of over $100,000.
As I understand it, if there were a three mill tax levied there would
be still a deficit in the running expenses of the State of over $100,000.

Mr. Edgerton, of Davison: The limitation in Article XI for
our expenses of State government an additional two mills may be
levied for payment of interest upon the indebtedness, which would
really make four mills.

Mr. Sherwood:. I am now speaking of our revenue received
as a Territory and speaking regarding this revenue, and I say,
that a three mill tax levied on the estimate of the gentleman from
Davison that there would still be a deficit. I desire the Convention
to think of this matter carefully ; I desire to say also, I am very
much opposed to making this $500,000 myself. I would have pre-
ferred to make it $100,000 of $150,000 after carefully examining
the amount of expenses that might accrue to the new State; we
must have some credit and some latitude to borrow money. I
deem this provision of this Constitution a wise one. I desire to say
that while there are many States who have a limit from $50,000
to $300,000, there are other states which have a limit of $500,000
or more; I think Kansas has a limit of $1,000,000.

Mr. Edgerton, of Davison: What limit has Iowa?

Mr. Sherwood: I think it is $100,000. I may be mistaken,
I think it is $100,000; Minnesota, I think, has $250,000.

Mr. Van Buskirk: I desire to offer an amendment like this:
That the public debt of this State, to be hereafter incurred shall
never exceed the sum of $500,000. and until the present debt of
South Dakota, assumed upon the division between North and
South Dakota shall have been paid, South Dakota shall not incur
further indebtedness exceeding the sum of $200,000.

Which amendment received a second.

The Chairman: The motion before the Convention is, the
adoption of the report of the Committee on State, Municipal, and
County Indebtedness. The gentleman from Moody county offers

LIMIT OF INDEBTED 503

an amendment and the gentleman from ('ruling on ('• .\rnty offers
an amendment to the amendment.

Mr. Jolley: I rise to a point of order; an amendment to an
amendment, I do not understand what that means ; the amendment
is to strike out and insert. Now, if the amendment is to strike
out $500,000 and insert $100,000 this other amendment is not
taken in the place of anything, does not add to anything,
vague.

Mr. Van Buskirk: I will move this as a substitute for the
amendment of the gentleman from Moody Bounty.

Mr. Cal dwell: Of course it is evident that the limitation
regarding this State indebtedness must be either one of two things ;
it must mean that the $500,000 limitation is to include tin
ritorial indebtedness assumed or it must mean that it is independent
of that debt. It seems to me that if it is to be regarded as including
that part of the Territorial indebtedness which is to be assumed
that it is competent for this Convention, under the limitations
which have been placed upon it to increase it to no further sum
than simply enough to cover precisely the total amount of the in-
debtedness assumed. That is to say that if this limitation upon
the State indebtedness is to include the Territorial debt that we
have the power under the Omnibus Bill and the requirement which
is upon us to make our Constitution conform to this limitation
that we simply have the power to increase that sum to $500,000.00,
which is just enough, and precisely enough, to cover the debt which
we assume. On the other hand if the interpret at ion is to 1"
the Territorial debt assumed is independent of and outside of this
limitation upon the debt which the State may imur. then we have
not a particle of power to change that one niekle because this
fact being independent it is not affected a particle by any of the
requirement or limitations of the Omnibus Hill. It is my judgment
that this limitation upon the power of simply the State iinl«
ness is totally independent of the requirement requiring t;
sumption of the Territorial debt. I am lead to this com lusion
by the exi:-ten< e of Section 5 of Article X11I.

Mr. Jollev: Thai IS Btri< ken Out.

Mr. Caldwell: 1 am speaking now.

der the Omnibus Hill as mcrclv to chl :1 "» 1SS

In the Constitution of lss5 appears tins Section Article

XIII which sa\ ' i* given that '

504 SOUTH DAKOTA DEBATES, 1889

provision or the payment by this State of the existing indebtedness
of the Territory of Dakota as it shall deem just and equitable and
this State shall assume and pay so much thereof as this Congress
may provide." Now Congress has provided by this Omnibus Bill
a method by which a j.;st division to South Dakota of the Terri-
torial debt shall be adju. ted ; how shall it be assumed ; and the steps
in execution of this requirement of the Omnibus Bill have been
taken. But it is determined that the amount thereof is very much
higher than the limitation upon the State ; the very fact of the li-
ability, that the debt would thus be larger seems to me to raise
the fair presumption that the amount of the Territorial debt was
to be regarded as totally outside of the limitation upon the State
debt. Now as I say, and the reason why I think that this inter-
p'retation, independent of these two propositions may be fairly
maintained, is this; that such construction must be put upon the
statutes and npon the Constitution as will give effect to the limita-
tions contained therein. If such construction be now put upon
this provision of the Constitution of 1885 as shall require that
the $550,000 is to include the Territorial indebtedness, of
course the whole thing falls to the ground, and the Con-
stitution by its own provision conflicts with itself. So taht,
as I say, we must give sucji interpretation, if itbe possible
as shall not result in a conflict between the different parts
of the same document. Therefore the only interpretation
which can be put upon this article in order to avoid this future
conflict is to require the two limitations to the two requirements
as totally independent of each other; for if it be agreed, or if it
may be fairly implied that these two propositions are independent
of each other, it must necessarily follow that there is nothing
whatever in the Omnibus Bill that has any reference whatever to
this limitation of $500,000; the only thing that there is in the
Omnibus Bill in the nature of a requirement is concerning the as-
sumption by this state of its portion of the Territorial debt. There
is not in the Omnibus Bill a single line or a single word referring
to the amount of independent debt which the State itself may
create. Therefore, if it is true that this limitation of $500,000 is
independent uf the requirement concerning the assumption of the
Territorial debt it is absolutely beyond the power of this Conven-
tion to change that sum of $500,000 one iota, however desirable
it might be that there should be a lef s sum fixed than has already

LIMIT OF INDEBTED* SOS

been fixed. The limitation upon this Convention is. that it shall
make such changes in the Constitution of 1885 and only such changes
as are to be inferred from the requirements of tin- Onmibu
Therefore, I shall certainly be opposed to either of these amend:
It seems to me the only possible thing that can be done with
ence to the Constitution of 1885 with regard to the amount of :
indebtedness is simply to make it beyond peradventure that
two propositions are independent. It seems to me the only thing
that this Convention can do is to put in here somewhere a pr»
that the limitation to $500,000 is not to be regarded as including
the sum which the State imut assume in furtherame
quirements of the Omnibus Bill in taking its share of the Territorial
indebtedness.

Mr. Jolley: Why not put an independent section in?

Mr. Caldwell: It absolutely, in my judgment, forbids this
Convention from changing a single figure of that $500,000.

Mr. Boucher, of McPherson: Mr. President; upon r
Section 2 of Article XIII of the Constitution of 1SS5, 1 think it
is perfectly clear that that $500,000.00 indebtedness is entirely
separate and distinct from the indebtedness which the S
inherit from the Territory. That section is this:

"For the purpose of defraying extraordinary c\
making public improvements, or to meet casual deficits or failure
in revenue, the State may contract debts never to exceed with
previous debts in the aggregate $500,000." so I don't ]..
is any question but what those are separate and distinct.
not a state debt. They assume the payment of tin-
debt. Now, I am anxious and willing and will 1><
the amendment. I rather like the amen.ln.. :.-il by the

gentleman from Codingtmi COtanty, it" I can : i that

we have got the right tod., it. tion in my min«i

we have any right to change or limit the State- indobti-'lnr
the purposes BpC4 itird in Sect! XIII. from $500.000.

Mr Williams. in. of Mo,>,h : Mr. I1
this question of previous indi-bn-din- s whu !
by the- last gentleman upon this SOOT, it '
(UK- tion was discussed here, f

tion to do anything more than to limit of S

such sum as would bear its pp.port.on . .f tin
ne?s. but as a number of tin

506 SOUTH DAKOTA DEBATES, 1889

Convention, seem to be of the opinion that this Convention has
power under the Omnibus Bill to change that — to assume that
indebtedness and change the $500,000, either by omitting it al-
together, or by leaving it stand altogether, or by mulitplying it,

1 accede to their opinion on that point. It then, as it seems to
me, becomes simply a question or policy for this Convention to
determine what changes they shall make in this matter. Now,
this Convention is obliged to amend Article XIII to provide for
this Territorial indebtedness which we have inherited, because the
report of the Committee clearly changes and amends the meaning
of Article XIII, because they have inserted Section 3, which states
specifically that the indebtedness we assume from the Territory
of Dakota shall not be included in the indebtedness referred to in
Section 2. It certainly appears that their report provides for the
material amendment of Article XIII, and that such an amendment,
or some amendment of Article XIII is required, in order to bri" g
us within the requirements of the Omnibus Bill and the Constitution.

With reference to this Section 5 of the Constitution as origin-
ally adopted, it has been dropped by the report at this time because
it is wholly superfluous at this time. It was adopted at that time
as a temporary expedient. No machinery had been provided at
that time for determining what our share of the Territorial indebted-
ness would be. This Section 5 is very much like the Schedule and
Ordinance in its effect. It was a temporary bridge, or expedient, to
go over with at that time.

So far as saying we must now construe Section 5 and Section

2 together, it seems to me that is a little absurd. As I am informed
and believe, the amount of Territorial indebtedness which would
have been South Dakota's share at that time, was about four hun-
dred thousand dollars; that is, that South Dakota would at that
time have been obliged to incur an indebtedness of four hundred
thousand dollars, and it appears to me plain, from that fact, that
it was the intention of the framers of that Constitution to leave lee-
way of about one hundred thousand dollars, under this Section,
for the State to go on and meet extraordinary expenses that might
turn up, and it seems to me we ought to take that as a guide at
this time. I would like to call attention to the wording of Section
2. It says:

"For the purpose of defraying extraordinary expenses and mak-
ing public improvements, or to meet casual deficits or failure in

LIMIT OF INDEBTEDN 507

revenue, the State may contract debts m-ver to exceed, with pre-
vious debts, in the aggregate, $500,000".

Suppose we leave out these words "with previous del.ts", then
it would have read, "the State may contract debts, never to exceed
$500,000". We have therefore a most complete cut-off of all the
indebtedness by the State. It appears to me plain that it was the
intention of the Constitution when this Section was drawn, that
that was to cover the indebtedness inherited from the Territory
as well as that incurred by the State. Otherwise that Convention
was guilty of tautology when they put in these words that amount
to nothing, "with previous debts".

Now, inasmuch as this has become a question of policy, I think
this Convention may well consider what the people of South Dakota,
when they voted upon the adoption of this Constitution, believed
that meant. I am not afraid to say that I am anxious in my action
here to conform, so far as these Constitutional provisions and the
Enabling Act will permit, and to so act and vote as I belie\ .
majority of my constitutnts would wish to have me vote an-
and I know that my own county— Moody county, which had the
honor of casting the largest vote, proportionately, in the Territory,
for the Constitution— 1059 votes for and two votes against this
Constitution last fall — I say that I know that my constituents
of Moody county did that more for the purpose of cutting off the
chance of further indebtedness than for any other reason. It was
because they viewed with dismay the mountain of indebtt
the Territory has been piling up, and it was because they wis'
interpose a barrier between the people and further indebtt
that they voted for the adoption of this Constitution. Tin- :
of my county do not believe that public prosperity is pn>nx.-
incurring public debts, or that the way to gain prosperity is to
go in debt beyond your income and beyond your ability t
The board of Commissioners at the* last session paid off tl
outstanding bond of Moody county. For over ten years tin
never been a warrant in that county which lias not been pai'i
ntation, They have no debts. They have a COUJll
and a court house. Hut the people of that i ounty
of the Territorial indebtedness, tin- sum <>usand d

and the people of that county don't want the Slate '
Opportunity of piling ten thousand dollars more r
upon that county. They don't want any more In

508 SOUTH DAKOTA DEBATES, 1889

They served notice on me when I was elected that they didn't wish
this Convention to make any alterations in the Constitution, ex-
cept such as are provided by the Enabling Act, and specifically
referred to this matter of indebtedness ; so I have had official
notice served on me in that respect. Now, as the gentleman
from Davison county has well said, where you grant the oppor-
tunity to incur indebtedness to the State, the indebtedness will
be almost certain to follow. In entering upon statehood we are
obliged to curtail our expensive habits. There is no question about
it. We cannot as a State go on in the lavish way in which the affairs
of the Territory have been conducted. Our income has been cut
down, and for years we will have to live upon a more economical
basis than we have been doing. It is hard to abandon an extrava-
gant mode of living and come down to the requirements, but it
is absolutely necessary to do it. We are confronted with a reduced
income, and if the opportunity is open before us, upon entering
upon statehood, to continue for a time lavish expenditures, by
incurring further indebtedness, I tell you, gentlemen, we will
incur that indebtedness. The members of the Legislature cannot
and will not have the power to stand up against the pressure which
will be brought to bear upon them. This thi g will be "absolutely
necessary" and that thing will be "absolutely necessary", ac-
cording to the advocates of certain measures. The pressure will
be so great that such indebtedness will certainly be incurred.
How are we going to meet '.his extraordinary addition to our
expenditures? When an individual has a certain and fixed income,
and is in debt to a certain sum, and he finds this income is not suf-
ficient to enable him to live in the manner in which he is accus-
tomed to live, and to pay interest upon his debts, is it a matter of
good judgment for that individual to borrow more money to enable
him to continue living in the manner in which he has been living,
or, to enable him perchance to build an addition to his house?
Is that a matter of good policy for an individual? And isn't the
same principle which would apply to the individual to apply to
us as a State? It seems to me, in entering upon statehood, that if
there is any virtue in the Constitution it is in its power to limit the
Legislature. The most important clauses in this Constitution are
those limiting clauses and I certainly think if we have the powrer
to make such an amendment, it is good policy to adopt such an
amendment as that proposed here.

LIMIT OF INDI-.BTKI • 509

Mr. Da vies, of Edmunds: Mr. Chairman ; we have facing us
two propositions, and we can't avoid considering t la-
Omnibus Bill and this $500,000 limitation. And 1 think I
the way out of this through a modification of the amen.
made by the gentleman from Codington. It is no time in our
proceedings to offer an amendment or a substitute, «.r I would
offer it, so I will talk on the amendment. We must m
quirements of the Omnibus Bill and assume our proportion
Territorial indebtedness That is a fixed fact ; no <me of us v
to dodge that i?sue. Again, we l-ave right here a Constitution
which, as the gentleman says, we have inherited as a State \\Y
are also doomed to inherit this Section 2 of Article XIII unl,
assume we have the authority here to amend this Constitution.
Now, then, how will we get out of this predicament, I ^ay we
will get out of it on the same principle that we have b.
out of these other predicaments. What is that r I)

0 do in the way of modifu at ins to get out of this preiiie annnt ,
and no more. Now, I think there is $200,000 that the i
ment covered. I should rather have it $100,000, but my id
this: Can't this be so modified that the sum SSoo.ooo \\ill p
as it is in the Constitution, but instead of saying $200,000, make
it $100,000 of $200,000, but in such a way that the limit of $500,-
000 will always stand. To illustrate, the amendment nov.
$200,000; we have $750,000 indebtedness; that makes $950.000.
After we pay $900,000 of this debt, how much can v.
Just $200,000. We will still have S50.000. My idea is t!
so modify it that after we pay— say we pay SoOO.oon ..ut of this
$950, 000, we have a debt of $350,000 left, but still, let us make
this amendment so self-acting that at that time
debt $150,000 more, or, make it S5(M>,<M>0. The m-.st v.
by debt is $100,000 until sui-h a time that the balance
unpaid and the amount assumed will not exceed $500,0'
think the gentleman from Davison, <>ur honoi
intended that that $100.000 should be the limit bevond wl::
could not go until the time wl en that an-;
should QOl -500, 000. I would like i

fnnn Codington this question; whether
yptir amendment that after we pay BO mr.
indebtedness SUppOSC we pa
then \ve could assume' S! 50.01-

510 SOUTH DAKOTA DEBATES, 1889

limit; so that at any time in the future we can go from $100,000
to such a —

Mr. Van Buskirk, of Codington: There is no difficulty in get-
ting that into shape, so it can be done. I drew this somewhat
hurriedly.

Mr. Davies, of Edmunds: I would like you would draw this
amendment.

Mr. Price, of Hyde: Mr. President ; I have never been accused
of being a very able financier, except perhaps in disbursing of the
funds which came into my hands, but I want to say to this Con-
vention that I am in favor "of the old flag and an appropriation",
and am therefore in favor of adopting the report of the Committee.
There would be a great deal of force in the argument of the gentle-
man from Mqpdy if we were assembled here for the express purpose
of framing a Constitution for Moody county, but we are here acting
for the proposed new State, and the gentleman must remember that
Moody county forms but a small portion of that State, and he him-
self is a very small portion of that county! Now then, I apprehend
from what has been said in opposition to this Article as presented
by the Committee, that gentlemen are ready to vote for it, could
they convince themselves that we had a right to do it. In other
words, they seem to think that it would be an infringement upon
the provisions of the Omnibus Bill, and then some of them go so far
as to state that it would be in direct opposition to the Constitution
as adopted by the Convention of 1885. Now, gentlemen, I have
great respect for the Constitution which was adopted in 1885. I
have supreme respect for the Omnibus Bill. Why? Because it
was passed by an American Congress, which will go into history
as admitting three imperial Territories as four States, into the
American Union, and it wras done by a DEMOCRATIC Congress,
and I am somewhat in sympathy, probably, with the Democratic
party! But I don't believe that this Omnibus Bill is such a s cred
document as men would have you believe. I take the same posi-
tion that I did upon the assembling of this Convention, that we
could entirely ignore the Constitution of 1885, and if it were ratified
by the people and the proclamation issued by the President, it
would have been the Constitution of the new State of South Da-
kota, and I Apprehend that gentlemen upon the other side will not
say that the President of the United States, whom they have passed
resolutions endorsing for his friendship. to Dakota, would go back

DEBT LIMIT 51 1

upon the expressed will of the people of the Territory of Dakota,
as decided at the ballot-box. He could not, gentlemen; he is such
an everlasting friend of this Territory'.

It is urged that this amendment ought to prevail
it would be in the interest of economy. I think there is one matter
which has been lost sight of by the members of this Convention.
Now, then, if we increase this debt, or if \se limit it to $500,000
regardless of the nearly $800,000 of a debt which is now hanging
over us, it is necessitated that this $500K000 will be squan<:
that it is unsafe to trust a representative body of men coming
direct from the people, and that they will necessarily squander
this $500,000! Why, g.-ntlemen of the Convention, one party
in this Territory has had control of it ever since it- -.em e

and is there anything upon the statute books or the appropriation
ledgers to show that they have ever abused the authority' When
my Republican friends vote against this proposition, they have
got to say that they cannot trust a Republican Legislatur
we ought to see that a Republican Legislature will be el-
I have more confidence in your party, gentlemen, than you .have
yourselves; I am willing to trust this parts — the represent,
coming direct from the common people of the land, and I !
they will not squander money entrusted to their care. It is n»t
absolutely necessary that $500,000 in bonds should be voted by
the Legislature, it that money is not necessary to carry on the S
and I don't believe they will do it.

Again, gentlemen, do you know what the actual runniiu.
penses of the new State will be? None of us kn«»w that. r.
we make a close estimate of it. It has been estimated and
by gentlemen who have been upon the floor that about S;
would be derived from taxation and other sources, but it ni
remembered, that that is upon a basis of a two-mi:
Do you want to go on record as saddling the full limit of that
taxation on a people who are living on wind and water in the
summer and snow-balls and irieles made into s«>uj». in the winter?
Our crops are poor, our people are paupers, and \\v atv will
let somebody in the future help pay this two-mill I
necessary and can be raised at four or live per

Mr. Hole of Beadle: I want t.»ask s. .me I.uv
a business proposition. We will ha

512 SOUTH DAKOTA DEBATES, 1889

$750,000. I would like to ask this Committee, when does the $750,-
000 fail due?

Mr. Sherwood, of Clark: I am unable to answer the question.

Mr. Kellam, of Brule: I don't think any gentlemen cen give
an accurate answer to that question. Some of these bonds are
option bonds, and I don't know but all of them, and at this time
the bonds are under the option ; that is, they may be called at any
time.

Mr. Hole, of Beadle: What rate of interest are they now
bearing?

Mr. Kellam, of Brule: From four to six per cent. There
are but $710,000 in bonds which South Dakota assumes. The
other is an estimate amount. The amount of bonds assumed is
$710,000.

Mr. Hole of Beadle: I had heard it intimated that this $710,-
000 was drawing a high rate of interest and there was an option
now to pay it off.

Mr. Kellam, of Brule: There are certain six per cent bonds
upon which the option has occurred. They may be retired at
any time by the payment of them now. There is no question but
what bonds could be issued by the newr State, bearing not to ex-
ceed 3 y<> and 4 per cent., and sold, and the money realized upon
these bonds used for the retirement of the six per cent, bonds.

Mr. Hole: And if we adopt the report, or the amendment,
would we have power then to refund any part of the $750,000, or
would \ve have to pay it? If we have no power to refund that, it
wrould not be a business policy to so tie ourselves that we could
not refund that and float it at a lower rate of interest.

Mr. Clough, of Codington: Here is a question that I want to
ask: We have been listening to a great deal of talk about the
solemnity of this Constitution. Here is Section 5: Let's read it.

"Consent is given that Congress may make such provision
for the payment by this State of the existing indebtedness of the
Territory of Dakota as it shall deem just and equitable, and this
State shall assume and pay so much thereof as Congress may
provide."

Now then, Mr. President, after some weeks and months of
careful study of this Constitution, I do not think many of us are
willing to assume that it was loosely drawn or that very many chances
were taken or much liklihood for hiatus. It seems to me if this

DEBT LIMIT 513

Section 2, that declares that $500,000 shall be the aggn
had been meant to cover the indebtedness then outstanding a]
Dakota, that it would have read in this way: "Consent is
that Congress may make such provision for the payment by this
State of the existing indebtedness of the Territory of Dakota as
shall be in conformity with Section 2." Now, I do believe that
if the $500,000 had been meant to cover the then imlebi.
that it would have so read — as I have read it— "in conformity
with Section 2"; because this Constitution is most wonderfully
overlapped and under-lapped. I do not set1, those words being lack-
ing, how it can be otherwise than that the $500,000 was meant to
be outside of the then existing indebtedness. You may reason all
the way along through the line of analogies, and they have pro-
vided this and that all the way through the Constitution. I"
not say "in conformity with Section 2", but it does say "Coi
may make provision", — and then it sticks on the other.

Mr. Caldwell, of Minnehaha: Mr. President; the poin-
by the gentleman from Beadle it seems to me ought to satisfy this
Convention that it not only has not the power to change the sum of
$500,000, but that it would be very bad business policy for it to
make any change in such amount.

Now, as lias been stated by the Chairman of the Committee
that went to Bismarck, there are considerable amounts of this
$710,000 bonds, which are running at a higher rate of i:
than it would be possible for the State of South D,
but when the State of South Dakota, if it shall have the powi-r to
do so, undertakes to declare its bonds open these hi;/i; I
—and undertake to issue new bonds at a lower rate «>f interest, in
their stead, it transfers the amount of that other indebi.
from the Territorial indebtenness inherited, over t» actual
indebtedness directly assumed. NOW. if the limitation 1-
upon the State to such an extent that it shall 1
way of 8100,000 it can't then possibly If <>f the

tunity which would offer for securing of a lowi-r rate of in!
with the $500,000 limitation upon the State ind< pure

and simple. The State will have power to take up
bonds and issue a lower rate of interest b«mds. for :' "i»nt ;

and so, for this convention to reduce the limit.-.:

and simple State indebtedness to a sum l.ssthan |

be merely crippling the State ami ptvvcnting it fr- •

514 SOUTH DAKOTA DEBATES, 1889

itself of the advantage it would otherwise have, — not being able
to trade off Territorial high-rate bonds for State low-rate bonds.
So it seems to me that, whether this question be looked at from
the standpoint of the power which this Convention possesses
under the Enabling Act, or whether it be looked at from the point
of what is best interest of the State, unquestionably that that
limitation of $500,000 should remain precisely as it is.

Mr. Hole, of Beadle: Mr. President; that my position may
not be misunderstood, I wish to say that I am not one of those
who wish to increase the indebtedness. I think the intention of
the framers of the Constitution of 1885 was that the indebtedness,
which should be found due from the Territory, was to be taken
from the $500,000, and that the balance of it should be the lee- way
and my position today is that we should approximate that as nearly
as possible. Our indebtedness today is away beyond the amount
of that indebtedness the Omnibus Bill provides we shall pay, and
that is in the neighborhood of $750,000. Now the indebtedness
which we will start in with is just as much covered by the Omnibus
Bill as the $750,000. We have exceeded that $500,000. Let
us keep inviolate the Constitution as far as the $500,000 is con-
cerned, but make it impossible for us to use any of that $500,000
until this other has been either converted into State debt or paid.
Now, I think it is proper to convert as much of the $750,000 as
possible under the $500,000 limit, into a State debt at a lower
rate of interest, thereby making from $15,000 to $18,000 a year.
That is a business proposition, coming to us as business men; and
that this may be very thoroughly studied and canvassed, I would
think best to refer it back to the Committee. The question,
and the report as adopted here, will effect the negotiability of these
bonds, and I think that that question should be considered by
the Committee — and so report — to give such power to do this,
and so that there will be no question about the bonds when issued
and that they can be floated at the lowest rate.

And I move you that this matter be referred back to the Com-
mittee, with the view of shaping it up to meet the desires of the
Convention that have been expressed here.

Mr. Price, of Hyde: Mr. Hole, do you think this affects the
negotiability of those bonds if it is submitted to the people and
ratified by the people, and we are admitted as a State in the Union,
under it?

DEBT LIMT 515

Mr. Hole, of Beadle: I want this Constitution to be so plain
that they can make it as State debt and get a lower rate of int
||Mr. Corson, of Lawrence: Mr. President; I rise to ma
suggestion in regard to this matter, which has occurred to me from
reading Section 3, as to the construction that has been put upon
this matter of $500,000.

The language of Section 2 is: "The State may contract debts
never to exceed with previous debts in the aggregate $500,000".
Previous debts of what? Of the Territory of Dakota, or of the
State? It seems to me Section 3 throws some light upon this
Section :

"The debt of any county, city, town, school district, or other
subdivision, shall never exceed 5 per centum upon the assessed
value of the taxable property therein."

Now mark ;

"In estimating theamount of indebtedness which a municipal-
ity or subdivision may incur, the amount of indebtedness contr
prior to the adoption of this Constitution shall be included."

It would seem by the care they have taken in Section 3 that
they intended by Section 2 to only include the indebtedness of t he-
State, which the State might contract after it became a State.

But I rise more particularly at this time to second the motion
of the gentleman from Beadle, for this reason: I was infor:
few days ago by the Treasurer, that we have quite a large amount
of bonds— $150,000. I think— that are drawing, I believe, 6 per
cent, now, but the parties who hold the bonds won't tak
per cent. Yet if he had the power, he could issue refunding bon«Ls
at a lower rate of interest, negotiate them in New York, and use-
that money to take up the old bonds. It seems to me that this
Convention ought to devise some way by which this $750,000
indebtedness, at all events, can be refunded from time to
I do not believe it is policy for us to attempt to pay it oft", and it
looks to me, upon reading the sections of this Article this morning
as though it will be necessary to amend that before long, 1-
I don't believe it would he best for u- : that m<i.

ness in tin- next ten years. I' would be an injustice to our pi

to ask them to pay <»tT all that indebtedm

subsequent generation not to pay a dollar. It is n-.t '

All we ought to be asked tW the next tv

COffie, is the payment of the inter-

before long we will find it necessary to amend that Section

516 SOUTH DAKOTA DEBATES, 1889

Constitution, and I think it ought to be provided for at the very
next session of the Legislature, striking out that section requiring
us to pay one-tenth of the principal, as well as the interest.
Provide for the interest, but allow the principal to remain. But
if we can make some provision at this time by which the Treas-
urer can refund these bonds, it seems to me a business proposition
and policy to do so.

And, while I have great confidence in the Committee, I would
move as an amendment to the motion of the gentleman from
Beadle, that the gentleman from Beadle and the President of this
Convention be added to the Committee for the purpose of devising
some way by which wre can from time to time refund the $750,000
provided for in the Constitution now — refund it by issuing other
bonds and selling them in the market and getting the money with
which to redeem these option bonds, and, as it is a very important
matter, I think we ought not to hurry over it too much. If we
can provide for the funding of this $750,000 without providing
for this $500,000 limitation, I should be in favor of reducing the
amount to $100,000 or $150,000. I think our Constitution is so
easily amended that it will only take two years at the farthest to '
provide for an indebtedness of that kind; and therefore I would
be in favor of limiting it, if it can be done at this time; but at the
same time I want to be very careful that we provide for the re-
funding of this $750,000, so that there can be no possible question
about that. We know how careful capital will be, and especially
where they advance money upon bonds at a low rate of interest.
They want to feel perfectly secure and they want long-time bonds
too., Now then, if that can be so arranged in our Constitution to
cover our refunding, then I should most certainly be in favor of
reducing the amount of indebtedness which the State can incur
in the future to as low an amount as has been stated — $100,000
or SI 50,000.

I therefore urge this matter be referred and that these two
gentlemen be added to the Committee, to assist them in preparing
some scheme by which this!$7 50,000 can be taken care of.

Mr. Wood, of Pennington: Mr. President; we have got to
dispose of this matter and we ought to do it now. Our time is
very short. The position of the gentleman from Davison is
unquestionably correct, to-wit: The Omnibus Bill, by reason of
the size of the debt we must assume, rendering it necessary, by

DEBT LIMIT 517

that fact, that we must make such amendment as the
of the case requires. I agree with that completely. Tin- amend-
ment is simply increasing the $500,000 to $850,000, in effect, hut
it don't cut off or abridge the power to place that debt in any form
which the Legislature may desire, to-wit: Refund ; issue new l>«>n<ls ;
take up the old ones; as the proposition stands under the amend-
ment. Now, if that is not the case, I surely don't understand any-
thing about the meaning of words. They can refund and take up
that indebtedness if they shall desire to. The debt is pro
for and the refunding is provided for. A re-reference can a;
no useful purpose, and I am sure we have consumed sufficient time
here.

Now, with reference to the adoption of the amendment of
the gentleman from Moody county — the amendment of the gi
man from Codington county is practically the same thing; the
amount is a little larger, and that is all — I don't think v
safely put it in that way with any one with a power to create this
amount of indebtedness, under the circumstances in which our
State will be placed at first. With Iowa it would be dii:
She has the power to contract $250,000 indebtedness. '1
she owes nothing. Iowa today is not paying one cent on out-
standing indebtedness; she has paid off the last dollar. It :
as necessary as it is in the new State. It is not whether v.
safely trust the new Legislature. It is a question. Can the
State, under these circumstances, resist the ' temptation
cessfully to go to the limits of the indebtedness? I don't think
it can be done and therefore I think we ought to make the limit as
low as possible. Now, having the power t<> amend the am« :
indebtedness, of course the power to amend gives us the right
to amend in any manner we may agree upon, and this :
to increase that to $800,000, with the limitation
now stands, seems to me, carries with it the power to n-fund
the whole difficulty is overcome and the amendment is proper
and properly made when we adopt the report as amended

Mr. Davies. of Kdmunds: Mr. President; I rise
of order. There is a motion before the house, and a
neither of which have been dispose. 1 of.

Mr. President, pro tein: The pr«-j- '1't the re-

port of the Committee; to that I
iment by inserting "$P

518 SOUTH DAKOTA DEBATES, 1889

gentleman from Codington moves to change that to "$200,000";
to that the gentleman from Clay raises a point of order, which
the Chair sustains; the gentleman from Beadle moves to refer the
matter back to the Committee ; the gentleman from Lawrence
moves as an amendment, that the gentleman from Beadle and the
•President of the Convention be added to that Committee, which
motion has had no second.

The question now recurs upon the motion to refer this back to
the Committee. Is the Convention ready for the question?

Mr. Edgerton, of Davison: Mr. President; if I remember the
discussion in the early hours of this Convention, in which I argued
that we were restricted in our powers by the Omnibus Bill, some
very eminent gentlemen took the opposite view. It is with great
satisfaction that I find today they are more extreme in their strict
construction of the Omnibus Bill than I am.

My eminent friend from Hyde — and no one admires his elo-
quence more than I do — asks me if I am afraid to trust the Legis-
lature. I answer, with certain limitations, never; but I am less
afraid to trust the people of this commonwealth. I can imagine
a time next winter when there will be very few Democrats in the
Legislature, but there will be a great many of them at the polls!
I want them to all have a chance to vote upon that question;
I want my friend himself to vote upon that question when the
Legislature shall submit the amendment. In all probability he
will have no vote in the Legislature, and I want him to have the
power to vote upon this question!

He asks me if I am afraid to trust the Legislature. All through
this Constitution there are limitations; limitations of the most
extraordinary kind. I call the gentleman's attention to the lim-
itations on the Legislature: It has no power to locate or change
a county seat — and yet the gentleman asks me if I am afraid to
trust the Legislature. It has no power to grant divorces; nor to
change the names of persons or places, or to constitute one person
the heir-at-law of another; or to regulate county and township
affairs; or to incorporate cities, towns and villages, or change or
amend the charter of any town, city or village, or to lay out, open,
vacate or alter town plats, streets, wards, alleys or public ground;
nor to provide for sale or mortgage of real estate belonging to minors
or others under disability ; nor to authorize persons to keep ferries
across streams wholly within the State ; nor to remit fines, penalties

DEBT LIMIT 519

or forfeitures; nor to grant to an individual tian «T cor-

poration any special or exclusive privilege, immunity or franchise

whatever; nor to provide for the management <>f eomn.<

nor to create, increase or decrease i<

of public officers during the term fo which officers an- elect

appointed. And yet the gentleman asks me if I am afraid to

trust the Legislature!

As I said before and have frequently said, there is probably
no other Constitution, with possibly that of the State -.1" Penn-
sylvania excepted, that is so guarded in its limitations and r<
tions of the powers of the Legislature, as the Constituti
South Dakota. And it is because the framers of this chose to re-
strict the Legislature and to say that they should n»t exceed the
limitations except by submitting the question to the people.

Now, as I said the first time I occupied the floor on this ques-
tion, if it is necessary to increase that indebtedness, all \ «u have
to do is to have the Legislature submit the proposition t.. the
people; if it shall have been found necessary to increase that in-
debtedness to $200,000 or $300,000 or $500,000, all you ha
to do is to have the Legislature, by a bare majority, submit the
proposition to the people, and the people, by a bare niajorit
increase the State debt.

Now, I will ask my friend from Hyde, if he is afraid t<> trust
the people of this commonwealth upon that most important ques-
tion?

Mr. Price, of Hyde: Xo, Sir, I am not afraid to trust t;
pie, and I am not afraid to trust the Legislature either, b.
its* members come direct from the people.

Mr. Edgerton, of Davisnn: \o\v. one thing more, outside <>t
this question. So far as the'dignity ami importance of this Omni-
bus Bill is concerned, the gentleman and I
willing to accord more credit than 1 t<> that handful <>f I'
not exceeding twenty in number, who, when it Uvaiiu- ine\
that Beniaman Harrison was to be the President ••! the I
States! VOted in the Senate and the HOUM
for this Omnibus Bill. It was the unanimous VOt
lican party in Congress. ba> ked by abmit twenty l> 'i t lu-

ll ouse of Representatives! 1 Bay this out of no di
Democratic party, but when it is claimed that \v.
admission and that we ha

520 SOUTH DAKOTA DEBATES, 1889

to the magnanimity of the Democratic party, I say we owe it to
the twenty Democrats \vho voted for it in Congress, and to the
unanimous vote of the Republicans in Congress. I will make this
exception, that the Democratic party of South Dakota, with very
few exceptions — here and there one — has been for years the friend
of South Dakota — as much as the Republicans; and upon this
question we have stood shoulder to shoulder up to the present
time.

Mr. Van Buskirk, of Codington: Mr. President; when I drew
this amendment and put $200,000 in there I was not wedded to
the sum of $200,000, but I thought it well to retain $500,000, so
that when we should have disposed of and paid $710,000, or about
$750,000, then this sum named would stand in the Constitution
as adopted in all of its intendments. I should just as soon have it
$100,000 as $200,000, but I want to retain that $500,000 in its
integrity. I want it so that when these other sums were paid,
that this $500,000 would stand there.

Mr. Da vies, of Edmunds: I want to ask if your motion, sent
to the table, refers to that fact?

Mr. Van Buskirk, of Codington: It is possible that the sug-
gestion of my friend, Mr. Hole, who has possibly a little more ac-
quaintance with this matter of bonds than I have, is correct. I
would prefer that there be no change that there will be no question
about the power to refund.

Mr. Wood, of Pennington: I understand that it contains
in its provisions, power to refund. I understand that when that
is paid off the limit will stand $100,000 ; as soon as the debt assumed
by the State from the Territory is paid off, the debt will stand
$100,000. In other words, we simply give a lee-way of $100,000
over the debt assumed.

Mr. Van Buskirk, of Codington: Now, to continue, my idea
was, as I said, to retain this $500,000 provided for here, in its in-
tegrity. I do not think it is any violation of the spirit or terms
of that to provide the limit; say to limit it to the sum of $100,000
or $200,000. When I put the sum of $200,000 in there I did
it for this reason; it occurred to me that South Dakota might
desire to build a capitol, or something of that kind, and that
$100,000 would not be enough; but I am willing $100,000 should
go in, and it may be well to add there something to make it un-

DEBT LIMIT 521

questionable that power to refund is given and that the ret::
shall not be deemed payment.

I am in favor of its being recommitted here. I think JXT-
haps the Committee now may take it up and handle it m.
than we can.

Mr. Stoddard, of Brown: Mr. President; is the ni< •
refer it back to the Committee?

The President, pro tern: Yes, Sir.

Mr. Stoddard, of Brown: Was the amendment of Mr «
to add Mr. Hole and the President of this Convention to that
Committee, allowed?

The President, pro tern: No, Sir; that motion was r

Mr. Stoddard, of Brown: Well, I will second that r
that is, if the President will consent. I will second the nn>ti«>n if
the President will agree to serve on that Committee.

Mr. Edgerton, of Davison: I don't think I would agree t<>
serve on that Committee. My convictions are too w
for that. I think my friend Mr. Price, or the gentleman
Clay, would be better selections. I take knowledge that my
convictions are so clear and well settled upon that, that I
be an improper person to sit upon that Committee. I would much
prefer that Judge Corson or Judge Price, or. some other
should serve.

Mr. Stoddard, of Brown: If Judge Corson will con-
take his place, I will second the motion.

Mr. Corson, of Lawrence: No, I should rath,
am not a good financier. But some way should he provi.:
refund this indebtedness.

Mr. ^Stoddard, of Brown: Well. I am in favor
referred back to the Committie, and then they will >
courtesy to these gentlemen <>f asking their ad\;
think it is no more than prudent that we iv!i r this nut1-
the Committee no\v, and for them r their repor

it in at a later time. We cai
would rather go home having this :
sible. and rertamlv the of this <

unanimously convinced that the r- |
gested.

Mr. Jolley, of Clay: Mr. IV

mittee that te:

522 SOUTH DAKOTA DEBATES, 1889

to go over this whole matter again. It has been clearly demon-
strated that the report of the Committee and the signing of the
rsport of the Committee doesn't bind anyone; after we have
agreed to something, then it is discussed here on the floor of the
Convention and those men who have signed the report go back
2n it and vote some other way. If there is anything in the report
of this Committee that don't agree with the views of any of the
gentlemen, there is certainly a way to amend it and make it sat-
isfactory. This Committee could not agree among themselves;
this is a compromise. The Chairman had serious objection to
signing such a report as this, but owing to the eloquence of certain
gentleman, he finally did so. I represent the same element in the
Republican party that my friend from Hyde does in the Demo-
cratic party, with this difference; I never have any money of my
own to spend; and I also differ from him in this; that r.o one I
ever knew of has ever trusted me to spend any money of theirs!
If necessary, let us go into Committee of the Whole, but don't
allow the spectacle to again occur in this Convention of having
a committee sign a report and then eleven of the twenty-five
members go back on it.

(Cries of "Question, question, question".)

The President, pro tern: The question before the house is
on the motion of the gentleman from Beadle to refer this back to
the Committee. Is the Convention ready for the question?

Mr. Sherwood, of Clark: Mr. President; that Committee
cannot possibly agree on any further report. We did the best we
could to agree on what we have now got before the Convention;
but if it should come back at all, what is the object of referring
that portion of the report drafted by the Committee from North
Dakota? If it should go back at all, I ask the mover of it to refer
only that portion of it to the Committee that has been under dis-
cussion here.

Mr. Hole, of Beadle: The only thing I had in my mind was
the proper wording of this matter with regard to bonds, so there
would be no question as to the negotiation of them.

Mr. Jolley, of Clay. Well, move an amendment to this report.

Mr. Hole, of Beadle: Such things can be done better in
Committee, and I think this Convention is ready to adopt the report
of this Committee when that is made clear.

Mr. Spooner, of Kingsbury: Mr. President; as a member of

DEBT LIMIT

that Committee, I shall oppose the re-referring of this r
All considered it carefully and honestly, and the report was a com-
promise, and if it is re-referred it will come in the same shape that
it did before, and we will have the same ground to go over.
I will give you good warrant for that. Not that we wish t<> make
the limit of the indebtedness far above what it should IK-, but tin-
question of power has come up before this Convention and in our
Committee in such a manner that we have been afraid to touch
those matters; and now you might as well consider the n
here, in Committee of the Whole, if you choose-, or, l>efore tin-
Convention ; but I shall oppose the referring back to the Comr

Mr. Dickinson, of Day: There is one thing that has n<
directly touched upon, and that is the most important. The finan-
cial part is something that has to be carefully drawn, and espec-
ially if we propose to refund out indebtedness, it is better to take
the advice of men who are dealing in bonds, and to have the- prop-
osition put in such terms as in the judgment of such men, the bonds
can be safely and easily negotiated. Mr. Hole says, that as one
who has dealt extensively in bonds, he would not be willing to take
these bonds in the wording this matter is in now. It seems to
me it will be better to refer this back, so as to have the wording
made so clear that there will be no question as to the negotiability
of the bonds. For that reason I am very much in favor of re-
ferring it back.

Mr. Willis, of Aurora: Mr. President ; I am convinced no "w
that we have reached that point in this discussion— in this desul ton-
discussion — where I 'am confident — I am confident
"Question, question"), being unaffected by this little demon-
stration around me — that this Convention is ready on this point.
I sympathize with that Committee on this link- extra work tlu-y
will have to do, but I sympathize more with this Cuim-ntio-
with the significance of the results to accrue to tl t' this

Territory, and I say, in this "rattled" condition, we ..tight I
ready now t<» refer tins back. (Cries 0\ "question, qu,
question" I.

The President, pro u-m: The question is UJM.II tin- motion to
refer back to the Committee. As ma:
that the motion prevail. 88

The Chair is unable to decide.

524 SOUTH DAKOTA DEBATES, 1889

As many as are of the opinion that that motion prevail will
rise till you be counted.

The vote stands 30 and 30, and the motion is therefore lost.

Mr. Corson, of Lawrence: Mr. President; I move to postpone
further consideration of this matter until two o'clock this afternoon.

A Delegate: I second the motion.

The President, pro tern: It has been moved and seconded
that the further consideration of this matter be postponed until
two o'clock this afternoon.

Mr. Wood, of Pennington: Mr. President; I am going to
insist that that motion do not prevail —

Mr. Van Buskirk, of Codington: Mr. President; I rise to the
point of order that this question is not debatable.

The President, pro tern: The Chair will rule that the question
in not debatable.

Mr. Wood, of Pennington: Then I simply advise the Conven-
tion to vote it down.

The President, pro tern: The question is upon the postpone-
ment of the further consideration of this matter until two o'clock.

As many as are of the opinion that the motion prevail, say
aye; opposed no.

The noes seem thave it.

(Division called for.)

Those in favor of the motion will rise and stand to be counted.

Thirty-one in favor of the motion and twenty -eight against.

So the motion prevails.

Mr. Sherwood, of Clark: Mr. President; I move we take a
recess until two o'clock.

A Delegate: I second the motion.

The President, pro tern: It has been moved and seconded that
the Convention do now take a recess until two o'clock.

As many as are of the opinion that the motion prevail, say
aye ; opposed, no.

The Chair is unable to decide. Those in favor of the motion
will rise and stand to be counted.

Mr. Dickinson, of Day: Mr. Chairman; if it be proper, I
would like to ask if there is any business we can transact before
two o'clock?

The President, pro tern: A vote is being taken.

There are 37 aves and 23 noes.

DEBT LIMIT

£.|So the motion carries and the Convention will tal.
until two o'clock.

RECESS.

Two o'clock P. M.

The Convention re-assembled with the President in th,

Mr. Caldwell, of Minnehaha: Mr. President; 1
unanimous consent for the introduction of a very importair
lution at this time. I will read it myself, because the chirogi
is a little questionable:

WHEREAS, There are at present outstanding bonds "t the
Territory of Dakota, aggregating $107,500, of whick $77,500
rive per cent interest, and $30,000 six per cent, interest, which are
payable at the option of the Territory atter May 1 , 1 888 ; and

WHEREAS, The Territorial Treasurer has power under the
Territorial law to declare said option; and,

WHEREAS, It is the judgment of said Treasurer that it
be possible under the present favorable condition ol
market to refund said bonds at a much lower rate of in'
therefore, be it

RESOLVED, By this Convention, that in its judgment, the
public welfare would be subserved by such refunding, and r
hereby requests the Territorial Treasurer to tak-
toward such action; provided, however, that the rate of i: I
Avhich the refunding bonds shall bear shall not exceed foiu
cent, per annum, and that any premiums secured upon such
should inure to the benefit of the general fund of the Territory.

The President of the Convention: The gentlemar
imous consent to consider the resolution, and the Ch;i.
objection.

Mr. Caldwell, of Minnehaha: Mr. President; I wil1,
the Territorial Treasurer feels some little hesitation i:
this option, under the circumstances that piv\ail at
of the division of the Territory, etc., and th:
with his knowledge and advice, in order that thcr<
thing like a warrant to him for declaring the option, and h«
he lias not any question but that he can refund
four per cent, and that such refunding would sa\'i t:
South Dakota at least SJ5.000 of i:
bond was originally .'1 l»»"d and tl

on its face to be the option of the 'IVnv
might be a question with the bond pur
not the State of South Dakota could <;<
was the province of the Territory of D

526 SOUTH DAKOTA DEBATES, 1889

of bonds bearing this rate of six per cent, might stand out and
question the option declared by the State of South Dakota.

A Delegate: I second it.

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

Mr. Dickinson, of Day: Mr. Chairman; I have heard it stated
that those bonds could be refunded at 3 y^ per cent., but we ate
liable to have the outside limit used instead of the inside —

(Cries of "question, question").

The President of the Convention: As many as are in favor of
the adoption of the resolution, say aye ; opposed, no.

The ayes have it and the resolution is adopted.

The question now. before the Convention is on the adoption
of the report of the Committee on State Indebtedness, to which the
gentleman from Moody moves an amendment that "500,000"
be stricken out and that "100,000" be inserted. If I remember
right, that is the condition.

Mr. Jolley, of Clay: Mr. President; the gentleman from
Codington has an amendment striking out "100,000" and in-
serting "200,000".

The President of the Convention: Is the Convention ready
for the question on the striking out of the "500,000", as it occurs
in the original report of the Committee on State Indebtedness,
and inserting the larger sum, "200,000"?

Mr. Neill, of Grant: Mr. President; if I understand the sit-
uation of the question, we have just one amendment to the original
motion.

The President of the Convention: Two.

Mr. Caldwell, of Minnehaha: I believe the other was declared
out of order.

Mr. Williams, of Bon Homme: The amendment by the gentle-
man from Codington county was declared out of order, so that
when we took a recess the question was on the amendment of the
gentleman from Moody county, to insert "100,000" instead of
"500,000".

The President of the Convention: I understand the condition
of things as the gentleman from Clay stated — that the gentleman
from Codington offered an amendment or a substitute, changing
the whole provision and providing that certain bonds should be
taken up and new bonds issued; that someone raised a point o

REFUNDING BONDS 527

order and that the Chair decided the point of order well taken ; ami
then, as I understood it, the gentleman from Codington offere-1 a
new amendment to strike out the words or the figures "500,000"
and insert the figures "200,000".

Mr. Neill, of Grant: I understood that there was only
amendment before the house.

The President of the Convention: If the Clerk will read the
Journal —

Mr. Peck, of Hamlin: Mr. President: I—

Mr. Neill, of Grant: Mr. President, if there is a second am.
ment before the house, I have nothing to offer.

The President of the Convention: The Clerk tolls me that
the Journal is not in the room. I rule this, in the absence of the
Journal — which should be here, Mr. Clerk, at all times when the
Convention is in session — and upon the statement of the tv
man who presided in the Convention at the time, Mr. Williams,
that the order was as he states it and that there is but t:
amendment before the Convention.

Mr. Neill, of Grant: I wish, Mr. President, to offer t!
substitute :

SEC. 3. That the indebtedness of the State of South I)
limited by Section 2, of this Article, shall be in addition to th>
of the Territory of Dakota assumed by and agreed to be paid by
South Dakota; provided, that SS350,000 of said imK-bv
limited by Section 2 be part of said Territorial indebtedness until
the same is fully paid.

Mr. Jolle'y, of Clay: Does that relate to the same -
matter, Mr. President?

The President of the Convention. I think it is of t;
order as that passed upon by Judge Williams before dinner. It
was then ruled out of order and 1 am not <lis;
ruling of the chair.

The question is upon the n

"500,000" and insert "100,000". All th.-sr of the >
the motion prevail, say aye; those opposed, n<>.

The ayes appear to have it. The a\ vs ha
(Division called for).

All those in favor of the motion that ' 5i)i),000" be s1
out and "100,000" inserted, will rise ami stand t" ;

The ayes are 42 ami t : ' -^

So the motion ptv .

528 SOUTH DAKOTA DEBATES, 1889

The question now recurs upon the adoption of the report of
the Committee, as amended.

Mr. Neill, of Grant: Mr. Chairman; I wish to present the
amendment I offered before. I think it is in order now, and I
will move its adoption.

SEC. 3. That the indebtedness of the State of South Dakota,
limited by Section 2, of this Article, shall be in addition io the debt
of the Territory of Dakota assumed by and agreed to be paid by
South Dakota; provided, that $350,000 of said indebtedness limited
by Section 2 be part of said Territorial indebtedness until the same
is'fully paid.

Mr. President, I just wish to explain the intent of that amend-
ment. The effect of this amendment will be to make the limit
$150,000. The amendment of the gentleman from Moody makes
the limit $100,000. So far as that is concerned, I care nothing
about that; but the point I wish to preserve is this — I don't wisrf
to attack that limiting clause of the Constitution of 1885, making
the limit $500,000. To save attacking that provision of the Con-
stitution of 1885, I make this provision, by authority of the Omni-
bus Bill in regulating the Territorial indebtedness, and simply
reserve $350,000 out of that $500,000, to apply on this Territorial
indebtedness, and it is to apply on it continuously until all that
Territorial indebtedness is paid. So that there is no chance of
exceeding this $150,000 limit at all until that Territorial indebted-
ness is cleared off. Then of course the $500,000 limit will be in
force and will maintain the integrity of the Constitution of 1885.
Our people are economical enough to take fifteen or twenty years
before that $500,000 clause will come into effect. They will
pay off that debt, and they are perfectly safe to trust in the future
not to incur more of that $500,000 than is necessary. It obviates
the difficulty found in that provision of the Constitution of 1885.
( Mr. Humphrey, of Faulk: What part of $100,000 is $350,000?
That has been changed now by the adoption of the amendment,
from $500,000 to $100,000. How do you amend it by your reso-
lution?

Mr. Neill, of Grant: Coming in as a substitute to the amend-
ment.

Mr. Van Buskirk, of Codington: Mr. President; I would like
to inquire —

The President of the Convention: (Not observing Mr. Van
Buskirk).

DEBT LIMIT 529

As many as are in fav.,r of the adoption i.f the amendment,
will say aye —

Mr. Van Buskirk, of Codington: One- moment, Mr. President.
I just came in, and have not heard the resolution.

Mr. Xeill's amendment \vas read by the Clerk.

Mr. Jolley, of Clay: Mr. President; we cvrtainly can':
that amendment. It is Section 3, I think, in the n-]...rt.
Section 2 is amended so that $100,000 is all that is put in
instead of $500,000. The amendment says that $350,00(1 ,
$100,000 shall be, so and so!

The President of the Convention: As many as are ir.
of the adoption of the amendment, will say aye. (No <!<
voted in the affirmative.) Those opposed say no. (The del
voted unanimously against the adoption of the amend:
(Great laughter).

The motion is lost!

The question now recurs upon the adoption of the report of
the Committee.

Mr. Xeill, of Grant: I would like to hear the report read now.
Mr. President.

The President of the Convention: The Clerk will read tin-
re port.

(The Clerk announced that the report had been taken
Committee from his desk.)

Mr. Van Buskirk, of Codington: Then, Mr. •
would offer as a substitute, to strike out Seniors 2 an
report of the Committee and substitute in pla> •
sections the following:

For the purpose of defraying extraordma:
making public improvements, or t., meet causal d
in revenue, the State may contract debts, never ; In the

aggregate, live hundred thousand dollars, exclusive of tin- in-
debtedness to be assumed by the Stale of South Dakota upon the
division of the Territory of Dakota, and n<> greater i;
shall be incurred except for the purpose of repelling in\.
suppressing insurrection or defending the State or ;
States in war; and provision shall be made by law for ti :•
of the interest annually and the principal when di:<
for the purpose, or from other sour. :uie; which lav.

viding for the payment of such interest and principal \>\
tax or otherwise shall be irrej- h debt i*-

vided, that until tin- present d<

530 SOUTH DAKOTA DEBATES, 1889

the division of North and South Dakota, shall have been paid,
South Dakota shall not incur any indebtedness in excess of the sum
of one hundred and fifty thousand dollars, but the Legislature
may refund the indebtedness assumed and to be paid by South
Dakota upon such division, and may use any part of the said sum of
five hundred thousand dollars in excess of the said sum of one
hundred and fifty thousand dollars to refund said indebtedness,
and for no other purpose, but such refunding shall not be deemed
a payment of such present indebtedness.

The idea of this is, as you will readily see, that in no event
can the State of South Dakota become indebted over and above
the debt which we have to assume under the Omnibus Bill, $150,-
000 added. That is the extent to which it can go, by any possibility .
This provision allows the State to refund that debt and to use the
sum of $350,000 of the $500,000 to refund, but as long as you simply
change one obligation for another that is not payment, and it con-
fers upon the Legislature power to refund, at a less rate of interest,
if possbile ; and I offer that as a substitute for the report of the
Committee.

The President of the Convention: You have heard the sub-
stitute as offered. As many as are in favor of the substitute-
Mr. Cal dwell, of Minnehaha: Mr. President; it appears to
me that this substitute settles a great many difficulties that have
occurred to the members of the Convention. It seems to me to
meet the emergency, as it provides for something which the report
does not provide for. I have just been talking with the Ter-
ritorial Treasurer, and he says that is a matter which he feels is
of wonderful importance, and if this provides for these difficulties,
it is an excellent thing. I will call" for the reading of this sub-
stitute again. I would like to have it read slower, so that we can
take it all in.

The President of the Convention: The Clerk will read it.
(The substitute of Mr. Van Buskirk was read by the Clerk.)
Mr. Jolley, of Clay: Mr. President; I have just been informed
by the Territorial Treasurer that $150,000 -will not be sufficient
to carry us until February, and $350,000 will not be enough to
amount to anything in the refunding, and his idea is that the
$100,000 ought to be raised to $250,000 and the $350,000 lowered
to $250,000.

Mr. Wood, of Pennington: Mr. President; I am opposed to
giving this State the right to contract that much indebtedness

DEBT LIMT 531

over what we assume. There is no necessity for it, and I know
by past experiences that the tendency is to run up as far B
can go. Of course as soon as the present debt is paid off they can
run it up to half-a-million . There is a constant teni:
all sorts of schemes, for appropriations and the like, and
that indebtedness as low as we can.

The President of the Convention: As many as are in f;t
the adoption of the substitute, will say aye; those opposed, no.

The noes appear to have it. The noes have it and the sub-
stitute is lost.

The question now recurs upon the adoption tof the re:
the Committee, as amended.

As many as are of the opinion that the report be adopted, say
aye ; those opposed, no.

The ayes have it and the report of the Committee, as amended,
is adopted.

Mr. Wood, of Pennington: Mr. President; I move that the
action of the Convention in adopting the report of the Committee,
be reconsidered and that the motion be laid upon the table.

A Delegate: I second the motion.

The President of the Convention: It has been moved that the
action of the Convention in adopting the report of the Comr.
as amended, be reconsidered and that the motion to rec<>;
be laid upon the table. Is the Convention ready for the quc

As many as are of opinion that the motion prevail, sa
those opposed, no.

The ayes appear to have it. The ayes have it.

(Division called for).

Those of the opinion that the- motion be tabled ri-
to be counted.

Those of a contrary opinion, rise and stand to be e«»u:

The ayes are 30 and the noes 2 7 .

So the motion prevails.

What is the further ] ntion' I \\-n\\'

for the information of tin- Convention, that \\v have n«»\v i
an hour, if we accept the imitation of the Burlington I
to Spirit Lake.

I am not advised as to whether this completes the Constitu-
tion, so that it can vjo into the hands of the enrollu

Mr. Caldv.ell. Of Minnehaha: Mr. President; I would ask if

532 SOUTH DAKOTA DEBATES, 1889

the Article reported by the Commission has not been turned over
to the Enrolling Committee?

Mr. Hartley, of Hand: I think not.

The President of the Convention: I am informed by the Clerk
of the Convention that it has been.

What is the further pleasure of the Convention?

Mr. Humphrey, of Faulk: Mr. President; I send up the report
of the Committee on Printing, and I move its adoption.
(The report was read, as follows:)

Sioux Falls, August 3, 1889.
MR. PRESIDENT: —

Your Committee on Printing, having had under consideration
the advisiability of printing blank certificates of indebtedness,
relative to the expenses of this Convention, direct me to report,
recommending that this Convention do provide for the printing
of one hundred and fifty (ISO) blank Certificates of Indebtenness,
to comply in form to Rule 46, with the addition thereto in the
beginning of said for the words, "This is to certify". All of which
is respectfully submitted.

H. A. Humphrey,
Chairman of Committee.

The President of the Convention: The gentleman from
Faulk moves the adoption of the report of the Committee on
Printing.

As ma-ny as are in favor of the adoption of the report, will say
aye ; those of a contrary opinion, say no. The noes appear to have
it; the ayes have it and the report is adopted.

A Delegate: Mr. President; I move we adjourn until two
o' lock next Monday.

Mr. Corson, of Lawrence: Mr. President; it seems to me we
could adjourn to an hour earlier than two -o'clock. Many of us
wish to get away on the evening train and an adjournment until
that hour may prevent the final adjournment until the next day.

The President of the Convention: I will say, for the informa-
tion of the Convention, that Mr. Brown informed us here, probably
before you all came in, that those wrho went to Spirit Lake could
not be back here until 11:30 o'clock in the forenoon.

.Mr. Hole, of Beadle: I suggest that we adjourn until one
o'clock, and I make that as a motion.

A Delegate: I second the motion.

The President of the Convention: It has been moved that
the Convention do now adjourn until one o'clock Monday afternoon.

ADJOURNED 533

As many as are of opinion that the motion prevail, sa
opposed, no.

The ayes have it and the Convention stands adjourned until
Monday afternoon next, at one o'clock.
ADJOURNED.

THIRTY-THIRD DAY.

Monday, August 5th, 1889.

The Convention re-assembled at one o'clock P. M., with
President Edgerton in the chair.

Prayer by Rev. S. F. Huntley, a member of the Convention:

Infinite Father, we recognize Thee as the source of all wisdom
and of all power, and we look unto thee as we are now assembled
for the last time in this Convention, for Thy benediction :
upon us.

We pray Thee that Thou wilt guide, that this work now U-ing
accomplished shall go unto the people of this State, meeting their
approval, laying the foundations of the prospective State and under
the smile and approval of Heaven.

Bless us, each and everyone, as we go to our homes. 1'
us in the labor Thou callest us to do. Direct our minds ami our
hearts and let Thy blessings rest upon our homes and upon all the
homes here represented — all the homes of our State.
perity. Give that peace and happiness which comes from trust-
ing in God. Let Thy blessing rest upon all the departmc-
government. Give energy and strength. Help us in th«
of every dutv.

And when we shall have accomplished the duties of :
ended our days of probation, receive us to Thyself, u

We ask it in the name of Christ Jesus, our Redeemer.
AMEN.

Mr. Price, of Hyde called to the chair.

Mr. Edgerton, of Davismi: Mr. President; wh:
say that 1 have any apprehension that our b< >nds eannot '
into new bonds without affecting that provision of Siou.ouo limita-
tion, there are some men who fear that the otVuvrs ^'ho shall
tiate the bonds will have some apprehension that •••
tlu Constitution, and for the purpose of obviating tin
of objection under that, I ask unanimous consent to int:
as an additional provision; and the enrolling Clerk has said that

536 SOUTH DAKOTA DEBATES, 1889

putting this on will not delay the completion of the work fifteen
minutes.

The President, pro tern: The Clerk will read the resolution.

The resolution was read as follows:

In order to facilitate action in accordance with resolution
adopted August 3d, 1889, I ask unanimous consent to offer the
following:

SECTION 8. The Territorial Treasurer is hereby authorized
and empowered to issue refunding bonds to the amount of $107,-
500.00, bearing interest not to exceed the rate of four per cent, per
annum, for the purpose of refunding the following described in-
debtedness of the Territory of Dakota, to-wit:

$77,500.00 five per cent, bonds, dated May 1st, 1883., issued
for the construction of the west wing of the Insane Hospital at
Yankton and $30,000.00 six per cent, bonds, dated May 1st, 1883,
issued for permanent improvements of Dakota Penitentiary at
Sioux Falls, such refunding bonds, if issued, to run for not more
than twenty years, and shall be executed by the Governor and
Treasurer of the Territory, and shall be attested by the Secre-
tary under the great seal of the Territory.

In case such bonds are issued by the Territorial Treasurer as
hereinbefore set forth, before the first day of October, 1889, then
upon admission of South Dakota as a State it shall assume and
pay said bonds in lieu of the aforesaid Territorial indebtedness.

Mr. Edgerton, of Davison: Mr. President; I move the adop-
tion of the resolution.

A Delegate: I second the motion.

The President, pro tern: Gentlemen of the Convention, it
is moved that the resolution just read be adopted. Those who are
of the opinion that the resolution be adopted, say aye ; contrary, say
no. The ayes have it and the motion prevails.

The President resumed the chair.

The President of the Convention: Reading of the Journal.

Mr. Price, of Hyde: Mr. President; I move that the reading
of the Journal be dispensed with.

The President of the Convention: In the absence of objec-
tion, it will be so ordered.

Mr. Price, of Hyde: Mr. President; I have here a resolution
which I ask the unanimous consent of this Convention to intro-
duce at this time, and, as it is a matter in which the President of
this Convention may have some delicacy in putting the question
to the Convention, I will put it myself:

RESOLVED, That for the conspicuously able and impartial

EDGERTON COMPLIMKNTEII

manner in which he has preside.! over the de!ib< -rations ,,f this
Constitutional Convention and for his uniformly hon
courteous treatment of the members and ortuci :ng lt

the Hon. A. J. Edgerton has the sincere thanks of this Convention;
that the conspicuous part borne bv him in securing th,- admi
of South Dakota into the Union of States and the invaluabfc
vices rendered by him in framing the fundamental law of th
State, has inseparably linked his name with the hist
new commonwealth of South Dakota, and as a testimonial
regard for him, he is hereby presented with the gavel wh;
has wielded with such dignity and fairness during the H
of this Convention, and we cherish the hope that he ma
years to enjoy the rights and privileges of a citi/en 'of t!
State of South Dakota.

Mr. Clough, of Codington: I move its adoption.

Chorus of Delegates: "Second the motion — second tt
lution".

Mr. Price of Hyde: It is moved and supported gen'
that the resolution just read be adopted. All those in fa
the adoption of the resolution will rise.

Mr. Price, of Hyde: It is unanimously adopted.

The President of the Convention: I cannot ex;
delegates of this Convention upon the present n, the

profound gratitude that I feel at this renewed expression of the
members of this Constitutional Convention, for my effort on '
of South Dakota.

If anything has been accomplished, gentlemen, to merit the
approbation of the people, it is due to you, more than to r
do believe that we can present to the people of South Dakota
we go home, the best Constitution that was ever subm:1. •
people. I believe that they will In- satisfied with our \v..rk.
every single particular, from the Preamble to the
of the Schedule, the rights and inter, sts of the p.
sacredly guarded. We have guarded their school tu:
in the years to come that mos; :.t fur.d will edi;

poor man's child, throughout tin- length and !>:>
Dakota. \\V have guarded : ature

cannot encroach upon them, aid it lias :
every member of the Const i1

Constitution that the poorest man in the commonwealth v
equal to the ricbesl
the Courts is c< I

538 SOUTH DAKOTA DEBATES, 1889

in the least, in the presentation to the people of this common-
wealth of this organic law, I am grateful for it.

I shall long remember — as long as I live— this Constitutional
Convention. While sometimes we have had closely contested
questions, while issues may have been well denned, the members
of this Convention have been so far removed from those passions
that sometimes actuate bodies of this kind that after the issue has
been settled things have proceeded in an orderly and intelligent
manner, without leaving, so far as has been apparent, and so far
as I believe, any rancor in the breast of any man.

I thank you; I thank you sincerely, gentlemen, for this ex-
pression of your confidence. (Great applause.)

I would say to the members of the Convention that unless it
is otherwise ordered, I shall in a short time direct the Clerk to
read the Constitution ; that is, by the titles of separate articles
simply, and then ask that a vote of the ayes and noes be taken
upon its final adoption. After that has been done, we will sign it
in the order the roll will be called, the members coming forward, as
their names are called, to the Clerk's desk, and signing the Con-
stitution. I say, unless it is otherwise ordered by the Convention,
that will be considered by me as the will of the Convention. It
may take half-an-hour to complete the enrolling of the Consti-
tution. If there is any other business before the Convention,
now is the time to bring it up.

Mr. Da vies, of Edmunds: Mr. Chairman ; I will make a report
on behalf of the Committee appointed to secure the publication
and distribution of the Constitution, and will state that the Com-
mittee has been at work as expeditiously as circumstances would
warrant, and that the work will be pushed to completion as fast
as the circumstances will permit.

The President of the Convention: .Possibly someone in the
Convention may be able to give the delegates some information
with reference to a very important question — settlement of our
accounts with the Secretary.

Mr. Huntley, of Jerauld: Mr. President; by arrangement,
the Secretary is to be here this afternoon, in the room adjoining,
where he will meet with the members and settle their accounts.

In regard to the amount of money in the "treasury", the Com-
mittee is not informed fully with regard to the expenses that have
been made, but covering all other matters, by the reckoning of

OFFICERS THANKED 539

the Committee, and lumping the incidental expenses at $1000.,
there is $18,821.20 to come out of the Congressional appropriation.
This does not include the expense for clerks, and othrr n
not mentioned in the Omnibus Bill.

The President of the Convention: What is the further j.
of the Convention?

Mr. Hole, of Beadle: Mr. Presdent; it has been, I think,
universally conceded that there was an omission in S
the report of the Committee on Public Indebtedness, and I ask
unanimous consent to have a provision added. The repor
vides that the debt shall be $100,000, but it makes no pr« •
for funding the Territorial indebtedness; and I would ask unan-
imous consent to add this, at the end of Section 2.

"Provided, however; the state of South Dakota shall have the
power to refund the Territorial debt by the State of South D
assumed, in bonds of the state of South Dakota."

Of course if there is an objection to this, it falls. It seems to
be absolutely necessary to put it there, in order to give us power
to fund the debt as it matures.

The President of the Convention: Is there any objection?

Is the Convention ready for the question?

As many as are in favor of its adoption, will say Aye; those of
a contrary opinion, will say no.

The ayes have it and the resolution is adopted.

Mr. Price, of Hyde: Mr. President; I have a resolution
I send up and ask that it be read.

The resolution was read as follows:

"Resolved, That the thanks of this Convention
tendered to Rev. F. A. Burick, Chief Clerk; Dr. A. W. 1
rolling and Engrossing Clerk; J. A Wakefield, Chaplain; J
ney, Sergeant-at-Arms; E. C. Warner, Watchman: F. Hi'ppir.
senger; Col. I. W. Goodncr and T.(i. Brown. Strno^ra;
Albert Keith, Charley Walts and Frank Clougl:
ful and able manner in which they have disrhari;rd the «lut
their respective positions."

Mr. Price, of Hyde; Mr. Pn-sident. I n
the resolution.

A Delegate: I second tin- motion.

The President of tlu- C«m\vnti..n: You < .
Arc you rradv fur tin- (|iu-sti«>n r

As many as are in favor i.f h
opposed, no.

540 SOUTH DAKOTA DEBATES, 1889

The ayes have it and the resolution is adopted.

Mr. Young, of Lake: Mr. Chairman ; I have a resolution which
I send to the Clerk's desk to be read.

The resolution, which provides for the allowance of mileage to
certain clerks and the watchman and messenger, was read by the
Clerk, but, on account of some slight confusion in the hall, the
reading was inaudible to the reporter.

The President of the Convention: Is that to come from the
United States, or the State ?

Mr. Young, of Lake: From the State.

The President of the Convention: If it comes from the State,
our rules provide just how to reach it. The rules provide that all
such accounts must be presented to the Committee on Expenses
and be by that Committee audited and then go to the Convention.
If it is desirable, however, I will put the motion.

As many as are of opinion that the motion prevail, will say
aye, those of a contrary opinion, say no.

The ayes appear to have it.

(Division called for.)

The President of the Convention: As many as are of opinion
that the motion prevail, will rise and stand to be counted. Be
seated. As many as are of the contrary opinion, will rise and
stand to be counted. Be seated.

The motion is lost.

Mr. Caldwell, of- Minnehaha : Mr. President; I desire to state
to the members of the Convention that arrangements are being
made for holding a reception in this room this evening, by the
citizens of Sioux Falls, to the members of the Convention, officers,
and so forth, and their ladies, and a formal invitation will.be dis-
tributed sono, but I make this announcement now in order that if
any should miss an invitation, they will understand that it is ex-
tended, nevertheless.

Mr. Willis, of Aorora: Gentlemen of the Convention, we
have finished our work as a . Constitutional Convention — as a
body — and we have a matter now of a personal nature that we
wish to perform before we leave. Will Brother Jolley please come
forward? It is the unanimous desire of the Convention that Mr.
Jolley perform this agreeable work and duty and pleasure, in the
name and on the behalf of the Convention.

Mr. Jolley, of Clay: Mr. President; the closing hours of this

JOLLEY'S FAREWELL 541

Convention have almost arrivi-,1. .Nearly five week
assembled here in this hall, many of us str,
and here we have met and worked together during thi
We are just as other men are throughout this whole Terntor
throughout this whole Western country men of sti
victions, decided opinions, but having charity fur I
differ from us. During the heat and excitement that 1 .
prevailed here in this Convention, men have stood by their opinions
as firmly as men ever stood; they maintained their opini"-
the logic of reason, by argument and appealing to the symp..
of the members of the Convention; but, during the whole Conven-
tion, no matter how warm our feelings, no matter how hot t:
bate ran, there has been no unkind word said. We will have this
hall with no unkind feelings in our breasts. We met
we part as friends. And as the years go by, when t a that

have been enacted in this chamber shall be brought 1
memories, we will remember each person who took part
fought us the hardest we will respect the most; those wi.
us we will respect as men who entertained tin- same
ourselves; but, one and all. of both parties, look upon •
af friends, and when we meet in the future years, we wiK
perhaps as brothers.

It is true, Sir, when this Convention met there' was s«>me feeling
about who should preside over its deliberations. We- all
office", in our way, and he who says that he has no r the

endorsement of his fellow-men, obtained in a fair manner, without
resorting to tricks or subterfuge's, but in a fair, opt n fight
man without heart of feelings; he is a man that th
eountry knows not of. Hypm-rites may rant and tl want

office may smile their spurnings and sav "we don't wa; I
in man's heart of hearts there is a satisfaction in the en
of our fellow eitixens that brings gratification t<> <>uv
to our friends. A life well-spent is a ivble thing, and to !
by one's friends is a man's pride. Coming here in this r.
prompted by such feelings as th- se wlm i
who have assembled here, after the little e!'<
wiped away, when you. Sir, \\vre •
eorded with tin- heart and the wi
Convention: and now while you have w. >n

542 SOUTH DAKOTA DEBATES, 1889

yourself and credit to the State, but Sir, at the close of this Con-
vention we cannot only say that you have won our respect and
our regard, but that you have won our hearts, too.

Then, Sir, in behalf of the members of this Convention, I pre-
sent to you this protrait of each member of this Convention. Take
it home ; and when you look at the features remember that each
is a friend; as you look upon their features remember that you met
many of them as strangers, but that so long as life shall last, you
shall be, as you are now, their friend. In the heat of a political
fight friendships are sometimes wrecked, — friends are separated
who have been linked together for many years; but remember,
Sir, that up to this time and for your acts in this Convention, no
matter, I say, what may happen in the future, you part with us
now with our respect and sincere wishes and earnest prayers for
your future health and prosperity. (Great applause).

The President of the Convention: Surprises come thick and
fast. Four years ago I met in this hall the delegates who were
sent up from the different constituencies of South Dakota to frame
a Constitution. We met strangers. When I was then selected,
without any solicitation on my part, to be the presiding officer of
that Convention, it is with pride, perhaps with egotism, that I
say I received the unanimous vote of that Convention, Demorcat
and Republican alike. Four years have succeeded, and with them
a battle and struggle such as I have never witnessed in civil life
before, for the division and admission of Dakota. We met again
and by the same vote, the unanimous vote of the Democrats and
Republicans alike, I was selected as your presiding officer — the
highest I have ever filled, the highest office I ever expect to fill. To
be a delegate in a Constitutional Convention establishing the
fundamental law of the State of South Dakota, ought to fill the
ambition of any reasonable man's heart; to be twice made the
presiding officer of such a body, is an honor which is greater than
that of any other office I ever have or ever will be called upon to
fill. If I have succeeded in doing my duty here amid the active
struggles of the Convention, so as to meet the approbation alike
of all men, I have done more than I expected. I only expected,
and I only assured you when I took that chair, that as far as in
me lay, that I would discharge these duties impartially and to the
best of my ability. If I have succeeded so that at the closing hours
of this Convention you say to me you are satisfied that I have

MINUTES OP JOINT COM

endeavored to perform these duties w'l, t say it more than fills
the measure of my ambition.

I thuuk you! I shall long remember the persons \vlv-- |
traits are engraved upon this picture. I shall consider it t,
price and I hope to transmit it to my children with the sail.-
and Section for each and every member of this Convention that
I entertain for it. I sincerely thank you for this renev
sion of your kindneai and affection. (Great nj.pl.v

Mr. Caldwell ot Minnehaha: Mr. President: I hold h-
official copy of the proceedings of the Joint Comniis-
marck, and I suppose of course that the proper thing will
include this record with the records of this Convention. I had
hoped that Major Kellam, the Chairman of the South I)
Committee would be here, but he is not at present, and I
on behalf of the Committee to turn this over to the
the Convention.

The President of the Convention: What will the '
do with the records of the Joint Commission.

Mr. Wescott, of Deuel: Mr. Chairman ; I move it be de;
with the President of the Convention, by him to be deposited with
the Secretary of State upon the admission of South Dakota into
the Union.

A Delegate: I second the motion.

The President of the Convention: Is the Convention
for the question? You have heard the motion. As many .
of opinion that the motion prevail, say aye; those of
opinion, say no.

The ayes have it.

So the motion prevails.

Mr. Caldwell, of Minnehaha: I «!

connection that with these minutes there is also inrluded a
the books at this time in the Territorial library. \\
precaution to take that list, in order that then- might ;
tion arise as to whether we got all the books we bought, n.
any of us felt any apprehension there would U- any "t tin-
taken away, but it would certainly U- doeunu-ir.
any person who might in the future think any siu-h tl
suppose this will go over also with that n

Mr. Hole, of Beadle: Mr. President;]!' I ur.'iiT-t.ir.'i tl
dition of the business, it will pmbabh

544 SOUTH DAKOTA DEBATES, 1889

Constitution now, as a whole, if we have reached that stage, and
I think we have.

The President of the Convention: Judge Corson can better
inform the Convention as to that than I can. It was not ready a
few moments ago.

I will state to the delegates that I have asked the Clerk of the
Secretary (of the Territory) if he can come into the Committee
room to settle with the delegates, and if he can, it will be more
convenient for you and for him.

Possibly someone can inform us when the bound volume of
the Constitution will be present — about how long before it will
be ready.

Mr. Corson, of Lawrence: It will be here, Mr. President, in
about five minutes.

The President of the Convention: The Convention may be
informally at recess until called to order at the sound of the gavel.
RECESS.

The Convention came to order at 4 o'clock P. M., President
Edgerton in the Chair.

The enrolled copy of the Constitution having been received
from the Committee, the same was read by the Clerk, by title.

Mr. Kellam, of Brule: Mr. President; I offer the following
resolution:

(Reading) RESOLVED, That the Constitution having been
considered and acted upon Article by Article, the same be now
passed, adopted and confirmed as a whole.

The resolution being put to vote, and there being 72 ayes and
no noes, the same was declared adopted.

Thereupon, the roll being called, each member, as his name
was called, came forward and signed the Constitution.

On the motion of Mr. Kellam, of Brule, it was ordered that
the four stars, representing the States of North Dakota, South
Dakota, Montana and Washington, upon the walls of the Convention
hall, be left with Mr. Caldwell to be placed in the hall of the future
State house.

A recess was taken until 4:30 o'clock P. M.
RECESS.

Four-thirty o'clock P. M.

Convention called to order with President Edgerton in the
chair.

Mi 1. 1-:. M;K OF MKMHKRS 545

Mr. Fellows, of Aurora: Mr. President; L understand tlu- dis-
bursing officer, the rcprcsentathe of Secretary Richardson, is
raising a question as to the mileage of the members of tli:
vention. Now, the Committee on Kxpenses of this Convention
have figured up the mileage of all the members, and that :
I understand he is not willing to accept, and now, to bring the mat-
ter to his attention in a proper way, I move you that the Chair
appoint a committee of three members of this Convention to visit
the officer disbursing the funds and try to get him to accept the
report of the Committee.

A Delegate: I second the motion.

Mr. Peck, of Hamlin: Make it the action of this Convention,
and then send it to him by a committee of three.

Mr. Fellows, of Aurora: And in that connection, Mr
dent, I move you that we adopt the report of tin- Commit'
Mileage.

The President of the Convention: We can't adopt it until
we have it here.

As many as are of opinion that the resolotion be adopted,
say aye ; opp sed, no.

T c ayes have it.

So t e resolution is adopted.

I will appoin' on that Committee, Mr. Caldwell, Mr. Van Bus-
kirk and Mr. Price.

Mr. Fellows, of Aurora: Mr. President ; I think we will Iw
able to report that mileage matter to tin- Convention in .
moments, and I think the Convention ought to adopt it.

Mr. Van Tassel, of Sanborn: Mr. Chairman; I offer tin- fol-
lowing resolution and move its adoption:

RESOLVED, That the thanks of this Convention
to Assistant Secretary llubbard, for his kind attention to the mem
bers of this Convention.

The President of the Convention: Well, he is n
Secretary.

Mr. Van Tassel, of Sanborn: VVell. repres- •
Secretary.

. The President of the Convention: It is moved thai tl i
of the Convent. on be extended to Mr. llubbard •
and attention to the members of this Conventioi

546 SOUTH DAKOTA DEBATES, 1889

vention convened. As many as are of the opinion that the motion
prevail, say aye ; those of a contrary 'opinion, say no.

The ayes have it.

So the resolution is adopted.

Mr. Anderson, of Hand, called to the chair.

Mr. Edgerton, of Davison: Mr. President; I offer the follow-
ing resolution and move its adoption:

RESOLVED, That the Committee authorized by the Conven-
tion to publish the debates, secure the publication of the same
at the earliest possible time when the funds can be secured, either
from the United States or the State, and that the published de-
bates be distributed the same as the Journals.

A Delegate: I second the motion.

The President, pro tern: The gentleman from Davison offers
the resolution read in your hearing and moves its adoption. Are
you ready for the question ?

As many as are in favor of the motion will say aye ; those op-
posed, say no.

The motion prevails and the resolution is adopted.

President Edgerton resumed the chair.

Mr. Van Tassel, of Sanborn: Mr. President; I move a recon-
sideration of the motion that when the Convention adjourn today
it adjourn sine die.

The President of the Convention: I presume this motion is
made with the thought that in case some other obstacle should
arise to prevent our being paid today, we may need to have a
session tomorrow.

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

The President of the Convention: As many as are in favor
of the motion will say aye ; those of a contrary opinion will say
no.

The ayes have it and the motion is reconsidered.

Mr. Van Tassel, of Sanborn: Mr. President; I move you that
the further consideration of the motion pending, which is that
when this Convention adjourn it adjourn sine die, be postponed
until seven o'clock this evening.

A Delegate: I second the motion.

The President of the Convention: It has been moved that
the further consideration of this motion be postponed until seven
o'clock this evening. As many as are of the opinion that the

KM-KXSES 547

motion prevail, will say aye; those of a contrary opinion, will say
no.

The ayes have it.

So the motion prevails.

Mr. Price of Hyde: Mr. President; I desire to state that the
Committee appointed to confer with the disbursing officer, has
seen him, or a majority of the Committee has seen him, and we
have this to report:

ta That there are some discrepancies in the amount .of mileage
for the delegates, and he is now engaged in preparing a pay-roll
and refiguring the mileage of the different members, and he an-
nounces to us that he will not get the pay-roll ready before six
o'clock, and we have requested him to compare that with the one
prepared by the Expense Committee, and then check where there
is any difference, and at that time we will go over them with him.

Mr. Van Eps, of Minnehaha: Mr. President; I move that
when this Convention adjourns until seven o'clock they meet in
the rooms below, in order that the citizens may have the oppor-
tunity to prepare this room for the banquet this evening.

A Voice: Second the motion.

The President of the Convention: It has been moved that
the Convention reassemble this evening, when we meet at seven
o'clock, in the rooms below. Is the Convention ready for the
question?

As many as are of the opinion that the motion prevail, will
say aye* opposed, no.

The ayes have it.

So the motion prevails.

Mr. Huntley, of Jerauld: Mr. President; your Committee on
Expenses make the following report:

It is suggested by a member of the Committee that we request
the privilege of receiving this report again, that we- may make a
correct copy, free from these marginal notations made for the
benefit of members merely.

The President of the Convention: What will the Convention
do with the report?

A Voice: Move it be adopted.

Mr. Van Tassel, of Sanborn: 1 m«>\v y..u. Sir. that in the
matter of C. A. Anderson, Clerk of the Committee Ml A
ment, the amount be changed from SI 10 to $1JS. H.

548 SOUTH DAKOTA DEBATES, 1889

$125 by the Secretary — three days more than is allowed by the
Committee.

The President of the Convention: If he has been paid, why
is it brought in here?

Mr. Huntley, of Jerauld: Mr. President; I will say that Mr.
Hubbard appeared before the Committee .and gave an explanation.
It appears that he paid some of these clerks before he knew that
he had not authority to do so. He came before the Committee
and asked that the Committee recommend to the Convention that
he receive vouchers for the amount that he paid to these men
and that the balance be paid to them. The Committee were
willing enough to make such recommendation. If it has not been
inserted there — if I remember rightly some action %was taken
by the Committee, but it was all done in a hurry and it has escaped
the record, but the Committee did recommend that Mr. Hubbard
receive vouchers for the amount that he paid, and the memorandum
of it is in the hands of the Committee.

The President of the Convention: The Committee report
$110 in the case of Mr. Anderson?

Mr. Huntley, of Jerauld: And that is the amount that Mr.
Hubbard paid Mr. Anderson.

Mr. Van Tassel, of Sanborn: Then I withdraw my motion.
I thought he paid him $125.

The President of the Convention: Does the Committee recom-
mend that these vouchers shall be paid to Mr. Hubbard?

Mr. Huntley, of Jerauld: Yes, Sir; vouchers of $11*0. paid to
Mr. Anderson; and that $95. out of the $140 for Mr. Hannett, and
$75 out of the $140 for Mr. Deitz,'be paid to Mr. Hubbard, and the
balance go to these parites.

The President of the Convention: Then the recommendation
of the Committee is that those accounts be divided and separate
vouchers be issued?

Mr. Huntley, of Jerauld: Yes, Sir; and I would ask leave to
add to our report this bill handed in by Mr. Hubbard for the amounts
he paid these clerks. We designed to incorporate it, but in our
haste in writing it up we omitted to do so.

The bill of Mr. Hubbard referred to, was here sent to the desk
and read.

The President of the Convention: Do I understand the Com-

ADJOURNED SINE DIE 449

mittee to recommend that this voucher to Mr. Anderson be delivered
to Mr. Hubbard?

Mr. Huntley, of Jerauld: That is the request, and that the
amounts named in the bill of Mr. Hubbard there — that these
vouchers be issued to go to him, and the balance of tlu- amounts
to Mr. Deitz and Mr. Hannett.

The President of the Convention: I think it would be a little
better, and it would not involve the two officers that sign these
vouchers, if the Committee themselves had recommended this in
their report.

Mr. Huntley, of Jerauld: Motion was made in the Committee
to do so, but in writing up the work after action had been taken,
it was inadvertently omitted.

The President of the Convention^ Correct the inadvertence
then, so that the President of the Convention and the Chief Clerk
will have no difficulty in determining just what the exact will
of the Convention is.

Those of the opinion that the report of the Committee be ad-
opted, say aye; those of a contrary opinion, say no.

The ayes have it and the report is adopted, with the under-
standing that the Chairman of the Committee may make cor-
rections.

A Delegate: I move we take a recess until seven o'clock this
evening.

A Voice: I second the motion.

The President of the Convention: It is moved that the Con-
vention take a recess until seven o'clock this evening. Those of
the opinion that the motion prevail, say aye; contrary, no.

The ayes have it and the Convention will stand in recess until
seven o'clock, when we will meet in the rooms below.
RECESS.

Seven o'clock, P. M.

The Convention was called to order in tlu- luwrr r«u>ins

President Edgt-rton presiding.

There being no further business before the Conventioi
the settlement of acvmmts of members, a r« '^" untl1

nine o'clock.

RECESS

Nine o'clock, P. M.

.550 SOUTH DAKOTA DEBATES, 1889

The Convention was called to order, President Edgerton,
presiding.

On motion of Mr. Jolley, of Clay, the Constitutional Conven-
tion of South Dakota, adjourned, sine die.
ADJOURNED.

INDKX

Absentees

Additional Resolution, Kdireitnn
Adoptions. Schedule Kepoit
Aniei ican Sabbath Union
Amount Indebtedne.-s. EkJgerton,
Announces Mr. .Inlley. Wiiii-
Appieeiat ion and 'l'i ibute
Appropi iat ion. Pi ice
Auditor's Resolution by Cluuiih
Adjourn. I)avie>

Fellows

Han-is

Hnniplncy li;{

Jolley

Kiin ball

X<-ill

I'lice

Sherwood

Sterling

Van Tassel

Whitlnck

Williamson

Willis

Young

Stka

Han i-

••

Van liuskirk
•

.111 Mcial Ci:'
Atkin.-on I..
Conin

554 SOUTH DAKOTA DEBATES, 1889.

Stenographers 59

Avery, H. M.

Administration Oath of Office 11

Australian Ballot 297, SCO

Anderson 331

Hole 303

Lee : 315

Van Buskirk 302,313

Ballot, Forni of 4C6

Banvard, John, Seal of State 56

Beadle County, Communication From : 192

Bonds—

Kellam 512

Boucher, Lymaii T.,

Religious Worship 104

Time of Office 485

Revenue and Ominbus Bill 499

Boundaries —

Price 25,32

Sherwood 25

Brott, S. F. ..

Excused 491

Brown, Theron G., Stenographer 30

Brown, T. H. Letter From 419

Burdick, A. C., Rev. ..

Elected Chief Clerk ... 17

Prayer 387

Caldwell, E. W.

. Election 473

Joint Commission at Bismarck 543

Joint Commission 450

Journals 15,36,38,48

Limitations 503, 504

Maps of Territory 44

Printing 39

Proclamation of Governor 4

Reception to Convention by Sioux Falls 540

Resolutions - 535

School Lands 97

Temporary Chairman of Court 7

Tenure of Office 434

Territorial Library 543

Called to Chair

-Price 535

Williams ? 495

Campbell, Hugh J.

Privileges of Floor 36

INU 5SS

Carney. James

Sergeant at Anns 17

Chair,

Bpooner Galled 70

Chairman,

Sterling

Coats. Clark ('..

Takes Oath

Compact, With ['. S.
Couchman,

Called to Chair
Judicial Circuit ....

Capitol Lands

Corson

Dickinson

Hole

Humphrey

Sherwood

Woods

Young

Chaplain.

1 'rayer 18,28,43,61,61,87,107,111,112,115,151, •

Clerk. Chief.

Burdick 17

Engrossing, Hyde 17

Constitution 544

Roll Call
Clerk of Courts

Jolley

Sherwoi >d

Sterling

Van Huskirk
Williams
Wood

dough. Kdward K.
Enanlinir Act
Kxplains
(MM ilotric Suney
Journals
Oath of OHiee

Prayer

IW-iMMii.- !•>• Coi
Rule

Commission. Joint .

Humphrey

Kellam

Neil

556 SOUTH DAKOTA DEBATES, 1889.

Spooner 25

Wood 24,40

Communications.

American Sabbath Union 155

Beadle County 192

Conventions of Xoith Dakota and Washington 8

Montana Convention 29

North Dakota 14

Washingt on 14

Committees,

American Sabbath Union 248

Apportionment 547

Arrangement and Phraseology 3M

Banking and Currency 179

Bill of Rights 131, 134

Compensation of Public Officers 125

Conference 8

Ci ingress and Lejrisl-itive Apportionment 246

Corporations 12S, 129

Correction of Constitution ^5

County and Township Organization ls7

Education and School Lands 250

Election and Plights of Sufirage ' 141. 171. 2

Executive and Adminsitrative 116. 1S1. is 4

Exemptions 178

Federal Relation 172. 173

Impeachment and Removal 1G6, 107

Indebtedness .. 539

Joint Commission 44

Judiciary 120. 14(1. 157, 104, 244. 260

Legislative 244

Manufuctme IN 5

Military Afia its ]S6

Miscellaneous 181

Municipal Corporations 134

Name and Boundary 105.-JOO

Ordinance and Schedule 391. 894

Poweis , 1(;3

Printing 248. 582

Public Accounts and Expenditurea

Ref ere nee

Revenue and Finance

Revision of Constitution

Rights of Mariied Women

Rules. 7

Jolley 33

Repoit 62, 192

Schedule

Schedule lit" Ordinance

Submission

School Laiiil-
S-iil and Coal of Anna

Slate In-titutions . 177

Subjects Referred 77

Constitution,

Aiticles Referred to Commit! c. -

Caldwell 17 66 7d.71.71 B

son

Da vies
Dickinson
Kd-eiton.
HaHley

Hole ' 74,81

Lee

Jolley

M:,tson

Neill

Peck

Referred to Committee-

Report,

Amendment

Re.-olution on

Sterling

Stnddard

Williamson

Willis

Young

Zitka

-,.,
Enabling Ad

Jud.cial Circuit
School Land-

. Diuhton

Act - a- I'le-ident

Called Convent ion to 0

Ca|»it«.l Lands

Chairman

I-'.lections

I'ost polled

Re-olutioii on I'ulili<- Accounts
Day of Convention.

l-'ir-t

Second

Third
Filth

111

558 SOUTH DAKOTA DEBATES, 1889.

Sixth : 51

Seventh 61

Eighth ; 87

Ninth 107

Tenth Ill

Twelfth 112

Thirteenth 115

Fourteenth 119

Fifteenth 125

Sixteenth ; 139

Seventeenth 149

Nineteenth 151

Twentieth 155

Twenty-first 191

Twenty-third .' 265

Twenty-fourth 377

Twenty-sixth , 379

Twenty-seventh 381

Twenty-eighth 383

Twenty- ninth 387

Davies, J. G. ..

Adjournment 137

Constitution 75,76,83

Enabling Act 315,358

Geological Survey 176

Journals 37

Judicial Circuits 197,209

Takes Oath of Office 11

Publication and Distribution of Constitution 538

School Lands 92

Tenure of Office 432, 434

Dickinson, W. (!.

Capitol Lands : 258

Constitution 81

Election 474,476

Enabling Act 332, 338, 352

Journals 40

Judicial Circuits 199,201,212

Tenure of Office 425,428,440

Debates, Published and Distributed 546

Delegate, absent 11

Deposited With President 543

Dispense With Reading of Journal 493

Edgerton, Alonzo J.

Additional Resolution 535

Amount of Expenditures 495, 6, 7, 498

Constitution 70, 73, 75

Elected President .. 5

INDEX. 559

Election

Enabling Act

Explains Vote

Judicial Circuit

-

Nominates Hurdick

14

Resolution to Harrison

Speech mi H«-inir Elected Preaidenl

Elections,

Ca Id we 11

Co! SOU

Dickinson

Edircit on. E. Ci.

Humphiev

l'..-~ident of Convention

Rule- ....

»:••.. ;

Van Bnskirk ..

Williams

Wooda

Enal>liim Act .

Cloimh

Cooper

Daviea

Dickinson

Kdirei t on

Fellows

Hum ulr eV

um pnif j

Hiir 1

uni ie\

•

<},,., ,,.,„„ 1

>nei w ooi i
ling

Stroupe

Van Hnskirk

Wiili
Willis

Qg

ni<t r:.t ive 1 .'

: .11. F.

Adjounii;
l-'.nal)linLr \< t
Judicial < iM-uit

, IJelations

' . •'•

560 SOUTH DAKOTA DEBATES, 1889.

Floor,

Privileges 36

Geological Survey

Clough 176

Da vies 176

Memorial 175

Governor,

Proclamation of 4

Goddard, W. H.

Nominated Chief Clerk 17

Goodner, Ivan W., Official Stenographer 36

Hall, David

Judicial Circuit 216

Hand, Called to the Chair 540

Harris, C. J. B.

Amendment on Journals 38

Adjourn 147

Harrison, Benjamin, President 389

Hartley, C. G.

Constitution 169

Judicial Circuits 223,226

Tenure of Office 403

Hole, L. H.

Australian Ballot 303

Call for Adoption of Constitution 544

Capitol Lands 254

Commissioner of Public Instruction 539

Committee on Schedule 493

Constitution 74,81, 168, 169

Elections 468

Judicial Circuit 214,216

Schedule and Ordinance 261, 273

Tenure of Office 399, 401, 442, 443, 444

Hoppin, Frank

Messenger 18

Humphrey,H. A.

Adjournment 113

Capitol Lands 257

Constitution 84

Elections 483

Enabling Act 322

Incorporations 493

Joint Commission 25, 40

Judicial Circuit 227,232,233

Printing 532

Public Lands .253

Rights of Married Women 135, 136

Rules 8

IN 561

Ul >,89,96

tenure

Huntl.-y. >. I .

I)i-l>ui>in<: Comn.iu re

Prayer
Rules

Scho.,1 I.:, ;

Hyde, A. W,

' : 17

Incorporations ......................

Irrigation

Herman.
Joint

Kcilain
HepoM

Hi-solution .......

Jolley, John L.

Adjournment P,|

Clerk of Coin t
Constitution .....................

Knal)lin<4 Act
Federal Hclations
Journals

I'u-M-ntation of Poitiait- ; (j

Hiilhts of Married \Voinen

Hiilo 7._'d

Tenure ..f otli.-.-
Journal

dough

Da\i«'-

Dickinsota

Kt-llain
Jolli-y ....

Xril

Peck

I'lirr

Judicial Circuit
Anderson

Coiirhinan

Cooper

Dickinson
Bdgerton

Fellows

562 SOUTH DAKOTA DEBATES, 1889.

Hall 216

Hartley 223,226

Hole 214,216

Humphrey 227. 232

Matson 206,209

Sherwood 210,212,235,237

Spooner 194

Sterling 194,233,235

Stoddard 237,.239

Van Buskirk 201,206,216

AVood 232

Judiciary Committee Report 146

Kellam, A. G.

Bonds .512

Communication of Greetings 8

Commission 9

Joint Commission 30, 53, 408, 417, 456, 488, 490

Journals 4 37,39

Pic-serration of Four Stars for Future State House .".44

Pi esident pro tern 11

Resolution to Adopt 544

Kanouse, Theo. D 119

Keith, Albeit J 45

Kingsbury 17

Kirby, Joe 28

Lee,T. AV. P. ..

Adjourn 376

Australian Ballot 315

Constitution 75

Enabling Act

Majority Rule ,.

Prayer

Rules 22

Speech 58

Wood 517

Legislature Hand Book

Cahhvell ' 44

Limitations

Calchvell 503,504

AVilliamson 506, 507, 508, 5C9

Letter

Brown, T. H 419

Ford,C. J 189

Pruven, O. L 420

Ruger, Brig. Gen. T. H 394

McCusick, William 115

McGillicuddy. Valentine T 56

Majority Rule 500

INDEX.

563

Memorial on

School Lands

Mennonite, Petition

Mellett<

Mileaize and Other K>
I-Vllov

Youim .

Mineral CtulD -

Montana
Moody, G.C

M tson, W. H

Const it ct ion

St:r\' y

Judicial Circuit 9
Xeill, Henry

Adjournment
Clerks of Ci.uit

Delegates

Journals

Rules

Standing Committee ..

Stenographer

Substitute

Tenure of Office .
Xo:th Dakota. Connnunicat i(
Oath Office

Kirliy

Tripi). Haiileit
Omnibus- Hill

Peck
Price
Xo -

Australian Hallot Sy-t
Conunitt'

• '

Journals

Omnilnis Hill

Pra;.

Burdick

Chap]

Qough

HUI:I;. • 8. i
Lee

17."»

11

.

564 SOUTH DAKOTA DEBATES, 1889.

Matson

139, 155

Stratton

3

Wakefield

28

Willis ....

191,377,379,383

President,

Adoption Re port

495

Appreciation and Tribute

542,543

Corrections in Report

549

Corson

111

Debates

546

Four Stars for Future State House

544

Hand Called to Chair

540

Mot ion

529

Portrait s

542

Recess

544, 549

Sett ling Account s

538

Price, Chas. H.

.Adjourn

50

Appropriat ions

510,511

Boundaries

: 25,32

Called to Chair

535

Committees

103

Joint Comni ission

32

Journals

54

Omnibus

42

Resolution

536,539

Rules

23

School Lands

89

Seating

17

Pages

45

Petitions

53

Printing

39,243

Proclamations

4

Pruven, O. L

420

Public Accounts

57

Public Lands

253

Publication of Debates

423

Publication and Distribution of Constitution

538

Reports

American Sabbath Union

246

Arrangement and Phraseology

384

Banking and Crurency

179

Bill of Rights

131,134

Boundary and Seat of Government

266

Compensation of Public Officers

125

County and Township Organization

187

Disbursing Committee

547

Education and School Lands

250

I \ ;
Bteotionand K, ,,, ,., ,_.,

Executive and Admini>tiati\e
K.xeinpt ions

Federal Kehtions !_., '.,

Kol II I of

' it in ional An endn Hit.-
Corporal i«ms Other Than Banking

Impeachment ,-,/,-.

Judiciary l'M,\-,7.\i

Lative Appoitionmenl

l:tti\e Coll lliittee

Manufacture and Ajiiicnlnne js-

Military Afl'aiis
Minority

Miscellaneo: g ^^

Municipal Corporations

6 and Boundary
I'liMic Accounts

Rights of Married Women l_'l ].

Rules

Scliednle and Ordinance
S<-hednle and Suluni-sion

S-al and Coat of Aims \^n

St ate In>t it i.t ions j--

Resolutiona

Ai t( siaii System
Australia n System ..

Auditor

Clerks of Conn

Coin | liment ary t o l^Lei t on

Constitution

(iiant> liy Connies.-

Joint Coinn i-sion

Minei: 1 ('lain s

Public A'-c, unt -

Publication

lifliiiious \\'oi>hip

Rules

School Lands

nth Stalidaid I'alallel
te In-titut i.
Thanks

Reception to Convention by Sious I

•.ihiis Bill
Koll Call

566 SOUTH DAKOTA DEBATES, 1889.

Ruger, Brig. Gen. T. H 394

Rules

Clough 35

Committee on 7

Election 367,370

Huntley 34,35

Repoit of Committee on 20

Rights of Committee 8

Wescott 24

Wood ! 33

Sergeant at Aims

Buchanan 17

Carney, James • 17

Schedule and Ordinance

Hole 261,273

Seal of State, 56

Seats,

Caldwell 15, 19

Lee 16,19

Settling Accounts 538

State, County and Municipal Indebtedness 495

State Institutions 64

Stenographers

Brown, T. G., Goodner, I. W 36

Stenographer,

Atkinson 58

Neill 58,59

School Lands

Caldwell 97

Committee Report 87

Cooper 95

Davies 92

Hole 94

Humphrey , • 89,96

Huntley 92,94

. Price 89

Sherwood 91 ; 107

Sterling 63

Wood 90,91, 93

Young 96

Sherwood, Carl G.,

Adjournment 109

Boundaries 26

Capitol Lands 257

Clerks of Court 294

Constitution 18

Enabling Act 325

Judicial Report 210, 212, 235

INDEX .

567

P!esident of Convention

School Land-

Si^nin^ of Con<t it ntioii

Tenure of ( Miice

State, County and Municipal Ind«-l>te<
Spooner, I. R..

Atte.-ian System

Called to Chair

Joint Commission

Judicial Repoit

President

Privileges of Floor
Sterling. Thomas

Adjournment

Called to (.'hair ....

Clerk of Couit s

Const it ut i< in

Elections

F.nabliuir Act

Judicial Circuits

School Lands

Tenure of Office
Stewait. William M.. I'. S. S- nut or

Irrigation
Stoddard, William

Brott 's Name on Const r

Constitution

Judicial Circuits
StroujK-. M. 1'..

Enabling Ac;
Tenure of Office

Boucher

Caldwell
Da\ t

Dickinson
Edgerton

Hartley

H..i.

Humphrey

.).,lley

Neill

Sherwood

Sterling
Van Buskirk
Williams

Willis

\V .Is

19

\(\(,

Ml

568 SOUTH DAKOTA DEBATES, 1889.

Territ 01 ial Library

Caldwell 543

Thanks Extended

Hubbard and Van Tassel 545

Tripp, Hon. Bait let t

Oath of Office 5

Van Buskirk, S. B

Amendment to Indebt edness : 502

Am e ndm e n t 529,530

Australian Ballot 302,313

Clerks of Court 280,283

Enabling Act 342,345

Election 485,486

Judicial Circuits 201,206,216

President of Convention 5

Tenure of Office '. 440

Van Eps, William 17

View <if Committee 500

Voting 104

Van Tassel

Adjournment...' 11"; 546

Appoitionment • 547

Conference Committee 8

Thanks Extended 545

Wakeiield, J. A 18

Watts. Chas. C 45

Warner. E. C 18

Wa shingl on 1 4

Wat chin a n 18

Whit lock, John F., . 189

Wescott, C. R.

Am endm e nt 76

Rules 34

Temporary Chaiiman 7

Williams. William T..

Called to Chair 495

Clerk of Couits 277,279.283.284

Constitution ICO, 101

Election 4S8

Enabling Act 309.311,312.359

Mennonite Petition t 53

Tenure of Office *'-• >™~ , 449> 453

Williamson. H. M.

Amendment

Limit of Legislature 505,506,507,508

Willis, J. V.

Adjourn 242

'

Announces Joli, •.
Appropriation for Klection

Constitution

KnablinL
Prayer

Tenure of < Mlice
Wood. Chaunccy I...
Capitol Lands

Clerk
Election

Joint Coimi>K-;ion
.Judicial Circuit
Rules

School Lands
TeiUMe of Oflicc
Younii. F. <'>..

Adjournment

C;i])itol I.aiuis

Constitution

Knablinii Act
Mil.

Omnibus Bill
School Lands
Zitka. Joseph

Adjournn .cut
Australian Ballot
Constitution
Mnablinj: Act
Reference to Con

II.-.

ni

w.t. \-\

«B

JW
JAl

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