Gc ^- Lj
978.2
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V.12
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1237392
C5E:n^ALOGY COl^LECTI
ON
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Gr. 97B.2 N27p v. 12, Ber. 2, v. 7
Nebraska State Historical.
SOC lETY .
f-'ubl-icatioms cdf the nebraska
State Historical Society
OLIVER PERRY MASON
PATRIOT. PIONEER. JURIST
Horn May 13, 181^9, at Brooktield, New York.
Ou-d Aiiu-ust 17. 1891. at Lincoln, Nebraska. Settled
at Nebraska City in 1855 Member of both Houses of
the I.e<^islature. and President of the Council Provost-
Martial of the District for Nebraska, and Colonel in
I lie State Militia. First Chief Justice, Secretary of
the Hoard of Transportation. Lecturer on Medical
.lurisprudence in the State University. Constitution
maker. 18(511. iSTl.
OKKICIAL REPORT
OF THE
DEBATES AND PKOCBEDINGS
IN THE
NEBRASKA CONSTITUTIONAL CONVENTION
Assembled in Lincoln, June Thirteenth, 1871
VOL. 11
From the original shorthand notes of John T. Bell, John Hall, Dan Erown
and John Gray. Prepared for printer (1871) by Guy A. Brown, Clerk o
the Supreme Court of Nebraska.
Revised, edited and indexed for publication (1907) by
ADDISON E. SHELDON
Director of Field Work, Nebraska vState Historical Society
Published by the Nebraska State Historical Society pursuant to resolution
of the Twenty-ninth Session of the Nebraska Leg-i'^lature.
Volume Twelve, Nebraska Stnte Historical Society Publications
■ (HnrIum^ V5t=?fTf)
)Ljlk
^a
T. E. Sedgwick, York. Nebraska
1237392
NEBRASKA STATE HISTORICAL SOCIETY
, EXECUTIVE BOARD
ELECTED MEMBERS
President — Dr. Georg-e L. Miller Omaha
1st Vice President— Robei-t Harvey. ....... St. Paul
2nd Vice President — Hon. J. E. North Columbus
Secretary — Clarence S. Paine Lincoln
Treasurer — S. L. Geisthardt Lincoln
EX-OFFICIO MEMBERS
Governor of Nebraska Hon. Georg-e L. Sheldon
Chancellor State University E. Benjamin Andrews
Head Department American History, Nebraska State
University Prof. H. W. Caldwell
President State Press Ass'n Henry C. Richmond, Fremont
OFFICE STAFF
Clarence S. Paine Secretary
Addison E. Sheldon
Director of Field Work and Legislative Reference De-
partment.
Wm. E. Hannan Assistant
E. E. Blackman . Archeologist
Minnie P. Knotts . Librarian
STATED MEETINGS
Annual meeting of the Society, Second Tuesday in January.
Meeting of the Executive Board, First Tuesday after Second
Monday in January, April, July, October.
PREKACE TO VOL. II
The first vqlunie of Nebraska Constitutional Conventions is
just from the press and laid upon the desks of the members of the
thirtieth session of the Nebraska legislature. Its reception has been
generous and funds seem assured for the completion of the series.
The prospect now is that four volumes will be required.
It has been found impracticable to send proofs to surviving
members of the convention and await their return before printing
Instead, every living member will be sent a copy of each volume, as
soon as printed, with earnest solicitation for corrections and recol-
lections suggested by its perusal. These will be gathered into notes
in the final volume.
Part of the plan for these volumes is to illustrate them with a
complete set of portraits of the members of the constitutional con-
vention. Besides these, there will be illustrations of the early
Nebraska Capitol and a few other characteristic early pictures.
These are being gathered for use in the volumes which will follow.
The band of survivors of 1871 has grown smaller while proofs
were being read. Since work began upon these volumes there have
gone from our midst James M. Woolworth, and James E. Boyd, of
Douglas county; John Wilson, of Johnson county; Alfred L. Sprague,
of feaunders county; Beach I. Hinman, of Lincoln county. The fol-
lowing is the list of the living members with their present address
Othman A. Abbott, Grand Island.
John C. Campbell, Tabor, Iowa.
John N. Cassell, Aurora.
Pelham S. Gibbs, Tekamah.
Nathan K. Griggs, Lincoln.
Edwin N. Grenell, Ft. Calhoun.
Isaac S. Hascall, Omaha.
J. A. Kenaston, East Chattanooga, Tenn.
PREFACE TO VOL. II
James Kilburn, Lincoln.
George B. Lake, Omaha.
Charles F. Mauderson, Omaha.
James E. Phil pott, Lincoln.
Charles A. Speice, Columbus.
Alexander S. Stewart, Hot Springs, S. D.
George H. Thummel, Omaha.
Edwin S. Towle, Falls City.
Eleazer Wakeley, Omaha.
It is forty years ago today since, the last conditions com-
plied with, the proclamation of President Andrew Johnson made
Nebraska one of the sisterhood of states. What memories are
stirred by the fact! Even as I write comes a delegation from the
legislative halls below to these rooms for material to draft res-
olutions commemorating the event. Four decades! Who dare
forecast Nebraska four centuries hence?
LEGISLATIVE REFERENCE ROOMS ADDISON E. SHELDON.
STATE CAPITOL
March 1, 1907.
NEBRASKA CONSTITUTIONAL
CONVtNIION
OF 187 L
VOL. II
TWENTY-SEVENTH DAY.
The Convention met at nine o'clock
and was called to order by the presi-
dent.
Prayer.
Prayer was offered by the chaplain,
as follows:
God of all grace, permit us still to
look to thee for help, to look to thee
for deliverance from sin, teach us
that we may praise the name that
is most excellent. Bless America
with all the influences that make a
nation strong and great. Win us
from the evil, confirm us in the good,
make all our many millions one band
of loyal souls, we pray. Amen.
Reading of the Journal.
The journal of the previous day
read and approved.
Committee of the Whole.
Mr. SCOFIELD. Mr. President.
I move . that the convention go into
committee of the whole for the pur-
pose of considering the article re-
ported by the special committee, in
reference to public buildings.
The motion was agreed to, so the
Convention went into Committee of
the whole — Mr. Gray in the chair.
The CHAIRMAN. The secretary
will read the report.
Public Buildings.
The secretary read the report as
follows:
"The special committee to whom
was referred the report of the Stand-
ing Committee on State Institutions
and Public Buildings, together with
the several amendments proposed
thereto, respectfully report, that It
has had the subject under consider-
ation and submit the following, and
ask that it be embodied in the con-
stitution.
Sec. 1. A superintendent of
public buildings and a Land Commis-
sioner shall be elected at the first
general election provided for in this
constitution and at the general elec-
tion every two years thereafter, and
these officers together with the Secre-
tary of State, the Treasurer and the
Attorney General shall have the su-
pervision and control of all the pub-
STATE LAND COMMISSIONER
Wednesday]
MAXWELL-HASCALL-SPRAGUE
[July 26
lie buildings, institutions, grounds
and lands of the state subject to such
rules and regulations as may be
prescribed by law. And your com-
mittee further recommends that the
same be mad-^ a part of the Article
on executive.'*
Mr. SCOFIELD. Mr. Chairman.
I move the adoption of the first sec-
tion.
Mr. MAXWELL. Mr. Chairman.
It seems to me the duties ought to
be prescribed if a superintendent of
public buildings is elected, we had
better give him the entire charge of
the public buildings. I propose an
amendment to that effect.
Mr. HASCALL. Mr. Chairman.
The section as presented is objection-
able. You are to create two new of-
ficers and confer upon them no
more duties to perform than are con-
ferred upon the remainder of the
board acting jointly with them.
There should be gome provision that
would allow duties to be conferred
upon these two officers additional to
the duties to be performed by the
board itself. It says, true, that they
shall have control subject to regula-
tions to be made by law; these regu-
lations to be made by law applies to
the whole board collectively. It seems
to me the correct way would be that
we should create two officers, then
leave it to the legislature to confer up-
on these officers such duties as they
may see fit, and at the same time
make other members of the board
to act in conjunction with these
other ofTlcers that are part of the
state officials.
Mr. SPRAGUE. I do not propose
to occupy much time but I must say,
for one, that 1 am decidedly opposed
to mixing up our school matters with
the other officers of state. I think
it is sufficiently important to have a
set of officers for itself. Experience
has proven, that if you pile upon the
other officers of the state the busi-
ness of looking after the educational
interests of the state they will be
neglected.
Now, sir, for one, I believe that the
educational interests of the state
should be fostered and have officers
to have the matter in charge who
are peculiarly adapted for that pur-
pose. I am opposed to mixing up
this with other interests of the state.
I much prefer the provision which
was adopted in the consideration of
the report of the committee on edu-
cation, that we leave it to the state
superintendent and state officers as
may be placed on that board. There
is another reason why I op.pose this
report. It is that this state land
commissioner is to have these duties
imposed upon him. Now, if he at-
tend to the land business alone, he
will have all he can do. Hence, I am
opposed to putting on him the bur-
den of looking after state buildings,
and I think that department should
be kept entirely separate from the
other, and for these reasons I shall
oppose the report made by the com-
mittee.
Mr. WOOLWORTH. As a mem-
ber of the select committee to which
this matter was referred, I feel a de-
sire to say a few words. I think
when the report as made, comes to
be understood by the convention, the
difficulties which have been suggested
by the gentleman from Cass and the
STATE LAND COMMISSIONER
Wednesday]
WOOLWORTH
[July 26
gentleman from Saunders, and per-
haps the gentleman from Douglas
will appear to be obviated. And I
will say at the outset, that the ob-
jection made by the gentleman from
Saunders does not exist at all; be-
c^urc It is not proposed that either
the board, that is provided for in this
report, or either one of the oflBcers
vviio are lo be created by the report
we have sent in shall have the charge
-of the educational interests of the
.state, so far as the management of
the schools are concerned. Now,
there were a great many conflicting
views in the committee when we set
out together to settle upon this plan.
But upon one matter there was no
disagreement: there was no disagree-
ment that there ought to be one
"board, or set of oflicers or officer, as
the convention should finally decide
upon, who should have charge of
schools as institutions of public in-
struction: and that there should be
another board or set of oflacers or
officer, as the convention should fi-
nally agree upon, who should have
charge of the school lands as well
as the other public lands: and that
these two boards or sets of officers or
officer should be entirely separate
and distinct. , On that subject, I say,
there was no disagreement in the
committee. Now, as I understand
the gentleman from Saunders, he
objects to the report because it
brings under the board that is pro-
posed to be created by the proposed
article, the care and management of
the schools as institutions of instruc-
tion. That is not designed at all. So
far as, — and I will say by waj' of
passing, what my view now is al-
though I have had some difficulty in
reaching a conclusion, I am in favor
of incorporating an article that shall
provide that there should be a board
of education, to be composed of tie
superintendent of public instruction,
as its presiding officer, and five, sev-
en or more gentlemen selected from
the state at large; and provide in the
constitution that those gentlemen
shall render their service without
any compensation whatever, except
simply their necessary, actual expen-
ses, and I think the convention has
agreed, measurably at any rate, to
leave this matter to the legislature.
I should prefer to have that provis-
ion incorporated in the constitution.
That is not, however, the matter be-
fore us now. I merely wished to
state my views to show that this re-
port of this committee is not open to
the objections urged by the gentle-
man from Saunders.
Now, sir, it was among other-
things that were considerably debat-
ed in this committee, pretty well
agreed and understood that there
should be one officer, whose sole and
exclusive duty it should be to take
care of the lands of the state. We
disagreed at first, with reference to
putting in his charge all the lands of
the state: that is the lands given for
i public improvement in the state,
such as penitentiary and university:
and at the same time the lands in the
IGth and 3Gth sections. But we
agreed that there ought to be one
man who should have charge of all
the lands of the state. Then the
question was whether this officer
should be left altogether free to man-
age these public lands without super-
10
STATE LAND COMMISSIONER
Wednesday]
WOOLWORTH
[July 26
vision by any other oflacers, or some
other ofiicers to be associated with
him, to have some general care of
the matter along with him. And it
was finally agreed fn the committee
that it was better to select one man
and elect him by name, as a land
commissioner, or agent, or whatever
you may please to call him; one of-
ficer who should be selected and
named to have charge of all these
lands; and that there should be as-
sociated with him the state officers
who would measurably, be charged
with these landed interests. So that
one man would not have this im-
mense domain in his charge to man-
age, dispose of, or account for, with-
out having someone to look after him.
And I think that answers the objec-
tion of my colleague from Douglas.
And I think it shows that the plan
adopted by the committee in respect
to these officers is a fair, and just
and practical one. And right here
let me say that I do not think that
the objection of the gentleman from
Cass is well founded — that these du-
ties of these different officers, and
of the board, should be distinctly laid
dpwn in the constitution. I certainly
do not think it possible to do it,
with all the precautions and checks,
and care that it would be necessary
to explain. I can say to the gentle-
man from Cass that had he been in
that committee and listened to that
discussion, which was greatly pro-
tracted, he would have seen that it
was impossible, in the constitution,
to advance any plan of organization
that should go at all into detail. The
committee thought it was better, in
fact, they thought that the only way
that could be done was to trust the
details to the legislature.
Now this is all I think it is neces-
sary to say with reference to the land
commissioner and the board. There
was much debate and doubt as to the
creation of an officer who should be
called the Superintendent of Public
Buildings. At one time the commit-
tee agreed among themselves to
trust this matter to the state officers;
but upon more mature reflectipn they
thought it was better to create him
and surround him by the same
guards, and leave the prescription of
his duties and the duties of the
board created by this proposed ar-
ticle to the legislature. So I need not
go over that matter.
Now, as to the necessity for this
officer. We are to remember that,
first there are to be erected very-
considerable public buildings in the
state — a penitentiary, and the dif-
ferent benevolent asylums of the
state; the deaf and dumb asylum,
the insane asylum, and so on. This
building might be called the blind
asylum, but I refer now to the asy-
lum for the blind (laughter). Here
are these buildings to be erected in
the first place, and then they are to
be looked after. The matter of re-
:-dirs, the matter of insurance, the
matter of prevention of fires, by
proper precautions — all these mat-
ters ought to be in the charge of
some person who will be held ac-
countable for them. So the commit-
tee thought, on the whole, it was bet-
ter to create this officer, and put him,
as land commissioner, under the gen-
eral direction of this board and let
the legislature prescribe the duties.
HASCALL'S AMENDMENT
11
Wednesday]
HASCALL— ESTABROOK
[July 26
both of the board ^nd this oflacer. I
am glad to say that no member of the
committee came with any pre-con-
ceived ideas which he was determin-
ed to crowd through, but all seemed
willing to advise with the others,
and the committee are prepared to
accept any amendments which would
improve it; but the committee reach-
ed, at last, the conclusion that this
report, as presented, was about the
best thing they could do. They agreed
however, that it would be desirable,
if the convention saw fit to provide
that these two officers, or one, if only
one is provided for, should be incor-
porated with the state officers, should
give bonds and be subject to the
same responsibilities as the state of-
ficers. The salary should be fixed
and then the article should state this
should be the only officer having to
do with this matter.
Mr. HASCALL. Mr. Chairman. It
is not to the whole section I object.
It is because I think the section is
not enough to carry out the full idea,
I have prepared an amendment which
I would have added to the end of the
section.
The section as drawn, as I under-
stand it, aims at the joint action of
these two officers in connection with
jothers as I understand it, the land
commissioner should have an office
and perform duties independent of
this board. Here is my amendment:
The superintendent of public
buildings, and the land commissioner
'shall each perform such duties ad-
ditional to the duties above described
as shall be provided by law.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas (Mr, Has-
call.)
Mr. ESTABROOK. Mr. Chairman.
The provision in the section as re-
ported provides that all these officers
shall perform these duties. It seems
to me this covers the whole ground.
The CHAIRMAN. If the gentle-
man will wait, I will read a portion
of the section, together with the
amendment of the gentleman from
Douglas (Mr. Hascall.)
A superintendent of public build-
ings and a land commissioner shall
be elected at the first general elec-
tion provided for in this constitution
and at the general election every
two years thereafter, and the secretary
of state, the treasurer and the attor-
ney general, shall have the supervis-
ion and control of all the public
buildings, institutions, grounds and
lands of the state, subject to such
rul-^s and regulations as may be pre-
scribed by law.
The ammendment adds: "The su-
nerintendent of public buildings and
the land commissioner shall each
perform such duties additional to the
duties above prescribed, such duties
as shall be prescribed by law."
Mr. ESTABROOK. It seems to me
that the amendment is entirely need-
less. It is simply to provide that
each of these officers shall perform
those duties which the legislature
shall provide. It seems to me that is
sufficiently reached in the section
reported. We have here three com-
mittees whose duties require them
to consider these subjects or subjects
of like bearing, the committee on
schools, the committee on public
buildings and the committee on
lands, other than school lands.
Each of these committees has
conceived, that a board or some
part of a board was necessary to per-
12 BOARD OF PUBLIC LANDS AND BUILDINGS
Wednesday]
EST A BROOK
I July 26
form those particular duties which
they had in charge. Now when all
of these reports come to be consider-
ed before this convention, it was
thought to be of suflBcient import-
ance for the convention to order a
reconsideration by the committees
of the subject and inquire whether
all these interests had not better be
combined on one board. Now, wheth-
er this is best or not, is not for me to
say. I think it is. Then we should
consider what kind of a board is nec-
essary? I think that the board
should consist of an added member,
so that there should always be a ma-
jority to determine question^. I think
it is best it should consist of as many
as five. I presume it would not be
necessary for a greater number. It
has been suggested with a good deal
of plausibility that there should be
a board consisting, perhaps, of five
members, possibly with the superin-
tendent of public institutions at its
head, possibly the lieut. governor at
the head; one member to be elected
from each judicial district, but if all
these interests be combined, we con-
clude that about 5 is all that is need-
ed and the necessity of electing one
from each judicial district should be
done away with. It seems to me,
speaking for myself, that this fixes the
matter about right, to elect two and
then make up a board with state
officers. The board should have one
of its members to have oversight of
the lands of the state. This is the
most important interest in the state.
I presume it is a more important in-
terest even than that which will be
under the charge of the governor be-
■cause the school lands alone, will
reach the value of many millions of
dollars. Hence there should be one
ofHcer, who, from the name given
him, should be indicated as the of-
ficer who stands at the head of that
bureau, to be responsible for the
manner in which these interests were
cared for. Then too, in looking all :
around and viewing all the interests
involved it seemed to some of the
committee and finally, I think, to all
of them, that there was sufficient
demand for one officer on public
buildings and grounds. You can look
out at that window today and see the
need of such an officer now. Why
those high weeds? Why are not
these grounds kept in decent order?
Are all the public buildings insured?
Have they all got proper out houses?
Are the ashes properly taken care
of and all these guards against fire
seen to? Besides these there are a
thousand and one little things in-j
cidental to the care of the public
buildings; hence we say there should
be two officers elected outside of
the usual number of officers already
provided for. Well, what other in-
terests are involved in the work of
this board? There is a large amount
of money to be handled and it will
be necessary to have a treasurer. It
was thought by the committee that
to give the treasurer elected by the
people these duties and make him
responsible for the care of these mon-
ies would be the best plan. Another
interest to be considered, was the law
questions that should grow out of
the performance of the duties of the
board, then you need a law officer
connected with it, and hence we in-
clude the attorney general, and
MAXWELL'S SUBSTITUTE
13
Wednesday]
ESTABROOK-MAXWELL
[July 26
then you will need an oflScei* to take
charge of the records of their pro-
ceedings and we thought it should
be one who has a vault for the safe
keeping of records. Then it did seem
to me as an individual that when we
had provided for all these we had
all that was necessary to comprise
this board. It may be said that the
time may come when the commis-
sioner of lands would have no par-
ticular duties to perform, but recol-
lect he is a member of the board, and
individual advice will be taken as to
the manner of making sales and giv-
ing in all the business connected with
with the board. Now then if that
board so constituted does not fill the
bill and come up to the ideas of those
■who voted for having this matter
sent back I have to acknowledge that
I am incompetent to devise anything
that will suit. Now, as for myself,
I suggested in the report of the com-
mittee on education, I have suggest-
ed the election of a superintendent of
public instruction, you may have in
this office a man fully competent
for such office, but who is entirely
unfit to have charge of the monetary
interests of the state in any particular;
and, hence, I had no hesitation when
this board was suggested to drop this
officer and leave him in his own de-
partment. Then, too, it had been
suggested that the governor should
be a member of this board. I think
It would be bringing the executive
officer of the state down from the
dignity which properly belongs to
that officer to have him engage in all
these duties. It seems to me that to
leave him to enjoy the dignity of his
position, standing outside of any of
these boards, having general super-
vision of them all, is better. And
now to the question of duties. It
seems to me that the last clause of
this report reaches the entire neces-
sities of the case: They shall per-
form such duties as shall be prescrib-
ed by law. The designation of each
one of the board indicates the duties
they will have to perform.
Mr. MAXWELL. Now, Mr. Chair-
man, I think we are all in favor of
electing a land commissioner to take
exclusive control of the lands of the
state and I think also an officer to take
charge of public buildings. I have
prepared a substitute which I will
offer for the report of the commit-
tee; it reads as follows:
"There shall be elected at the first
election under this constitution a
land commissioner who shall have
charge and dispose of in the manner
provided by law all the lands owned
bv the state, and shall give bond to
the state in the sum of $100,000.00
and shall receive a salary of $1,800.-
00 per annum.
"There shall also be elected at the
first election under this constitution
a superintendent of public buildings
who shall have charge of all public
buildings and grounds owned by the
state and of the erection and repair
of the same in the mode provided by
law; who shall not be interested in
any contract relating to the same
and shall give bonds to the state for
the sum of $100,000.00 and shall re-
ceive a salary of $1,800.00 per an-
num.
Now, Mr. Chairman, we are pro-
posing to create new officers, and if
so why not prescribe their duties as
we do in other departments? If we
are to have a land commissioner
who is to have charge of the public
lands, why associate with him other
L4
COM. PUBLIC LANDS AND BUILDINGS
Wednesday ]
NEWSOM-LAKE
[July 26
Officers who have other duties for
which they are elected? I say elect
a man alone for these duties and give
sufficient salary to secure a compe-
ent man. Now then as to the super-
intendent of public buildings, is not
it better, Mr. Chairman, to trust this
matter in the hands of one mar.
elected for that special purpose?
there is nothing to be gained by as-
pociating with him the attorney gene-
ral, state treasurer or any other of-
ficers. I trust therefore that we will
cf ate but one officer for each of
these duties.
The CHAIRMAN. The question
is on the substitute of the gentle-
man from Cass (Mr. Maxwell.)
Mr. NEWSOM. Mr. Chairman. To
some extent I am in favor of the Idea
of the gentleman from Cass. My ob-
jection to the report of the com-
mittee is that it is a blending of au-
thority. There is no individual re-
sponsibility. This whole board is re-
sponsible for the management. I
like the substitute better, because it
makes individuals responsible, and
I think if he would add to his substi-
tute, that these officers shall consti-
tute a board which shall have a gene-
ral supervision of this matter. I
desire that the land cjmmissioner
shall be independent of all other
officers, but there must be someone
behind him to whom he shall be
responsible for the faithful discharge
of his duties.
Mr. LAKE. Mr. Chairman. I
like the substitute offered by the
gentleman from Cass (Mr. Maxwell)
better than the report of the com-
mittee. It seems to me it would be
strange to elect an officer, for in-
stance, a land commissioner, and re-
quire him to give bonds for the faith-
ful discharge of his duties, make
him answerable to the state for the
manner in which those duties are
performed, and at the same time
make him subservient to the dictation
of two or three other individuals,
who have really no interest such as
he has in the performance of those
duties. The land commissioner is
required to give bond for the sum
of $20,000 for the faithful discharge
of the duties of his office, the people
of the state generally will look to
him as the responsible person, one
who is answerable for the manner
in which duties are performed, and
still through the dictation and con-
trol of these several other officers,
his plans and desires may be injured
in every instance. I think it far. bet-
ter that some responsible person
shall be elected for the purpose of
each one of these several duties, re-
quire him to give ample bonds for the
faithful discharge of the duties which
may be devolved upon him by law,
then there will be no difficulty as to
who should be held responsible for
the way in which the duties of that
office are performed. In case of the
disagreement between these several
officers as to the transaction of any
duty, must not the board be called
together for the purpose of passing
upon every question which may
arise? Can the land commissioner
perform a single duty under this pro-
vision of the constitution without the
approbation of all the other mem-
bers of the board? Will they not
be required to act in conjunction In
COM. PUBLIC LANDS AND BUILDINGS
15
Wednesday]
LAKE-HASCALL
respect to every question which may
arise? Will it not be an unwieldy
board? It seems to me we should
find responsibility shirked from one
to another and finally no responsi-
bility anywhere. We elect a state
treasurer, who has duties to perform,
which are as burdensome, as respon-
sible, as important to the people of
the state as any duty which can be
devolved upon either one of these
new officers which it is proposed to
create, a land coimmissioner, or a
state house commissioner. If it is
not necessary to provide an advisory
hoard with respect to the duties of
treasurer, why with respect to the
land commissioner? I can see no
reason why he should be thus con-
trolled in his every action more
than the treasurer, both are acting
under the authority of law, both are
carrying out the will of the legis-
lature as expressed in legislative en-
actments. The duties of each are
-clear and distinct, and each one of
these officers individually should be
held responsible for the faithful per-
formance of those duties. It seems
to me the farthest we should go
would be to create an advisory board,
not a board of control, one which
could be called upon to advise in
respect to any matter which the leg-
islature in their judgment may see
fit to place within the range "of du-
ties of these several officers, which
may be called upon to act in conjunc-
tion with the land commissioner
or commissioner of public buildings,
but you allow the attorney general,
treasurer and auditor or a majority
of them to have an absolute control
■over another state officer, an officer
elected by the people of the state
at large, and who is required indivi-
dually to give a large bond for the
faithful performance of the duties of
the office to which he is elected. I
say it would be unjust. The indi-
vidual who gives the bond should
control the office, at least where there
is a difference of opinion, the man
who is responsible should control the
matter. I much prefer the substi-
tute to the original proposition. I
think that it will be far better m
practice than the original proposition.
I think it will be far better in prac-
tice. By the scheme which he pro-
poses there will be a head to each
of these departments, an individual
to whom the people will look in all
time for the purpose of ascertain-
ing what has been done. The per-
son to whom they can refer is a re-
sponsible person, and responsibility,
under the plan he proposes, may not
be shirked from the shoulders of one
to the shoulders of the other, render-
ing it impossible to find out who is
responsible for any action which
may be had.
Mr. HASCALL. Mr. Chairman. I
wish to answer a few remarks made
by my colleague (Mr. Estabrook)
with regard to the true meaning
of this section as reported by the
committee. In the first place they go
on and create two officers, a land com-
missioner and superintendent of pub-
lic buildings. The gentleman says,
I refer you to their names. Now I
contend there is nothing in a name,
and I have good authority for it,
we have a celebrated author who said
there was nothing In a name. Sec-
ondly, I refer to it to refute the gen-
1(J
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
HASCALL-WOOLWORTH
[July 26
tlenian's argument. It is time we call
him the land commissioner, but what
does it signify unless you confer
some duties upon him. This section
erects a constitutional barrier to con-
fer any duties upon the land com-
missioner or superintendent of public
buildings. He says they shall be
elected by the people and these offi-
cers together with the attorney gene-
ral, secretary of state and so forth
shall perform duties as prescrib-
ed by law. They have to act in con-
nection with the other officers, and
as was remarked by the gentleman
from Otoe (Mr. Newsom) it is a blen-
ded authority. The constitutional
barrier erected prohibits the legisla-
ture from conferring any duties up-
on these officers, but they may regu-
late the duties of these several of-
ficers when acting together. "Well,
we do not want any such thing as
that. I am in favor of the gentle-
man's argument as to what should
be. The gentleman goes on to say
what should be in the state, but at
the same time wheu he says that he
has erected a constitutional barrier,
which prevents the legislature from
carrying out the thing he says should
exist. Now, when the legislature
goes to work to make laws for the
land commissioner we want them to
have permission to set the land com-
missioner —
Mr. ESTABROOK. Will the gen-
tleman allow me to ask him a ques-
tion? Was not that committee sent
out to provide a board? Can you
provide a board for the management
of these things without giving them
joint control?
Mr. HASCALL. That is all right.
The substitute offered by the gentle-
man from Cass can be made avail-
able to carry out the ideas this con-
vention should adopt. It may be
made an advisory board, but you
must have separate duties to be per-
formed , by the superintendent of
public instruction and land commis-
sioner. And it is only by confer-
ing, by act of legislature, that these
officers do these duties singly, that
you carry out the object. Now, let
us see what my colleague, who has
just sat down says. He says the in-
tention of the committee was as I
stated. Well, then, if that was the
wish of the committee they made a
mistake in phraseology. Because
they tied up the legislature. The
gentleman says my amendment, if
adopted, would be the thing. Now
that is a very nice way to slick it
over with mud.
Mr. WOOLWORTH. Will the gen-
tleman allow me a word? I do not
think the committee disagrees upon
this subject at all. The repdrt of
the committee was that these of-
ficers should be incorporated in the
executive article. If you will turn
to the first section of that article you
will find it provides there that the
officers of the executive department
should perform such duties as pre-
scribed by law. The committee did
not think it necessary to insert a pro-
vision in respect to these two officers
because if their recommendation was
accepted that these two officers
should be made branches of the exe-
cutive department, then [by] this pro-
vision of the executive article, would
relate to and control them. The
COM. PUBLIC LANDS AND BUILDINGS
17
Wednesday]
HASCALL— THOMAS
[July 26
committee did not disagree with the
general views expressed by this gen-
tleman, but they thought they cover-
ed them by the provision which was
made; and I do not really see any
necessity for
Mr. HASCALL. If the gentleman
has made the explanation, he can
make his comments afterwards. My
colleague said this section, as re-
ported, contained several things. Now
I contend that it does not read the
way the gentleman indicates. We
agree fully about what should be,
but upon what the section says will
be, we differ. If there is any por-
tion of the executive article which
would carry out the idea covered by
the proposed amendment, of course I
am satisfied with regard to that.
But it would be disastrous to say
that certain things should be done
by a board.
Now, let me answer the objections
made by my colleague who has just
risen to explain. I contend that
these duties are centered in the
board, and consequently where you
confer upon a board certain duties
by a constitution, and they are to be
regulated by law, you cannot confer
those duties upon any single officer.
He says they may perform such oth-
er duties as may be prescribed by
law. But that is stated with a
qualification. I think it is right to
have a board for the general super-
intendence of affairs pertaining to
these branches, but when you attempt
through a board, and particularly
when it is composed of state officers,
when you undertake to perform all
these minute actions by this board
then, I say the whole thing is a fail-
Mr. THOMAS. Mr. Chairman. I
would be in favor of the amendment
offered by the gentleman who spoke
last, if I agreed with him upon the
law. I do not believe because this
section imposed certain duties up-
on a board that the legislature can-
not impose additional duties upon a
certain member of that board. I do
not understand that it makes it nec-
essary that they should all have
equal charge. If such was the case,
I would be in favor of the amend-
ment offered by the gentleman from
Douglas. But it seemed to the com-
mittee that the legislature had suf-
ficient authority under the section as
it now reads. The question with us
was whether we should have a single
officer to exercise the duties of land
commissioner without the control of
any other officer, and whether we
should have a commissioner of pub-
lic buildings, who should have the
supervision of the public buildings,
without any one to control. I do not
think there is anything in the section
as it now reads, that would prevent
the legislature from imposing the du-
ties upon these officers. It seems to
me they should have the superinten-
dents of these buildings under such
restrictions that the legislature may
see fit to provide. Now, is it better
that we should create the office of
land commissioner and commissioner
of public buildings and let any other
officer have any supervision or control
over them? This seems to be the in-
tention of thesubstituteoffered by the
gentleman from Cass. When this
matter was up the other day before
the committee of the whole, It seem-
18
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
THOMAS— MASON
[July 26
ed to be thought best that the duties
be imposed upon the state officers,
and we thought that was the desire of
the convention. What state officers
should we elect? We thought we
should elect certain officers, who
should have control of the details of
these matters; and that there should
be a certain board, composed of those
two officers and of certain state offi-
cers to have general supervision and
control of all those matters. It seems
to me it has been carried out. And if
I agree with the gentleman upon the
construction, I would agree that his
amendment should be adopted. But
it did not seem to say that such
would be the construction that would
be placed upon it. Now, with regard
to the requiring of bonds. That mat-
ter is left with the legislature. They
may require such bonds, and just in
such a mount, as they think proper.
The conditions of the bond would be
that they properly perform the du-
ties of their office. Suppose that
such a bond was given and the du-
ties of their office should be under
the control of this board, which has
control and supervision of other mat-
ters. Now it seems to me it would
not be wrong to require these officers
who should have supervision of these
matters to give bonds. They would
not forfeit their bonds so long as
they act under the direction of those
advisory boards. I think there is a
provision in the constitution of the
state of New York which provides
for cases similar to the one in ques-
tion, and which requires officers who
work in connection with others, as
a board to give bonds. This section
provides that the legislature may
impose certain duties upon that
board. Now if there be anything to
prevent the legislature from impos-
ing certain duties upon certain offi-
cers, it must be there is a defect in
the constitution. The gentleman
from Douglas who last spoke (Mr.
Hascall) does not differ in the slight-
est particular from the committee.
The only question is whether it is
requisite to add the amendment to
make this section full. I admit that
the substitute offered by the gentle-
man from Cass (Mr. Maxwell) is
very different. If it is the desire of
the convention that the land com-
missioner should be a separate officer
then the section proposed is defici-
ent, if it is desired that he shall act
in connection with other members of
a board, then this section secures
that end.
Mr. MASON. Mr. Chairman. It
seems to me that something like this
will accomplish the result sought:
"There shall be a land department
which shall be in charge of a general
land commissioner who shall be elect-
ed by the people whose duties and
salary shall be as prescribed by law
and whose term of office shall be
two years. There shall be elected a
superintendent of public buildings
whose duties and salary shall be as
prescribed by law and whose term of
office shall be two years. The land
commissioner and superintendent of
public buildings together with the
secretary of state, treasurer, and at-
torney general shall constitute an
advisory board for the land depart-
ment and the superintendence of
public buildings and the powers and
duties of that board shall be as pre-
scribed by law."
This it seems to me, states
clearly what the committee had
in view, but I am not In faror
COM. PUBLIC LANDS AND BUILDINGS
19
Wednesday]
MASON
[July 26
of that, altogether, and I will
briefly state my reasons. I am in
favor of striking out the whole sec-
tion and the substitute and inserting
about three lines, as follows:
"There shall be a land department,
which shall be in charge of a general
land commissioner who shall be
elected by the people and whose du-
ties and salary shall be as prescrib-
ed by law."
Now sir, why should we re-
ject the report so far as it relates to
the superintendent of public build-
ings? There is danger of creating
too many officers and the people may
think that, like the frogs in Egypt,
they will eat out their substance. I
think the public grounds and the pub-
lic matters should be in charge of
the legislature. These departments
and officers we create in the consti-
tution are constitutional depart-
ments and cannot be wiped out or
•changed at the pleasure or will of
the people. It seems to me it is not
necessary to create now this office of
superintendent of public buildings,
but we should leave it to the legis-
lature to do. Many things which
would be wise for them to do, are
very unwise for us to do. The du-
ties of these various departments
must be left somewhat to legisla-
tive control. The salary of this offi-
cer should be established by the leg-
islature for his duties decrease each
year. The first year, I have not the
slightest doubt if he does his whole
duty the pay should not be less than
$3,000; the next year it will be
less; the next less, and finally the
duties would wind up entirely.
Hence I don't agree with the substi-
tute of the gentleman from Cass (Mr.
Maxwell) because I think, for the
first year, $1,800 is too little. Per-
haps the next year it would be too
much. I would be opposed to fixing
the salary, but in order to make pro-
gress in this matter, I wish the con-
vention to determined whether we
shall have a superintendent of pub-
lic buildings or not. For my own
part, I should be opposed to create
such an officer in the constitution, I
[have learned from experience that it
is not well to create these officers
so that they cannot be wiped out.
If it should be the sense of the conven-
tion that this office of superintendent
of public buildings is to be created,
then I shall offer a substitute, but,
sir, I am not in favor individually of
a superintendent of public buildings
at this time for the reasons I have
previously suggested. I would leave
this in the hands of the legislature.
The people might elect such an of-
ficer under this provision who knew
nothing about the duties of this of-
fice, and who would be a dead weight
upon the state. I think it would be
the best plan to leave it in the hands
of the legislature to create this of-
ficer if necessary, but if we should
leave the land department in this
condition that might occur which
would greatly damage the interests
of the state, as in the past, for the
need of some person to faithfully fol-
low up this matter and for these reas-
ons I send up the substitute which I
have just read. With one word, sir,
and I am done. With a population of
from 150,000 to 175.000, with a
state badly swamped in debt, It seems
to me it is not necessary to create any
more offices than are absolutely nee-
20
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
MAXWELL-MASON
[July 2&
essary to navigate the ship of state
through the rough sea on which she
now is riding.
The CHAIRMAN. Does the gen-
tleman from Otoe (Mr. Mason)
think his proposed substitute is in
order?
Mr. MASON. I don't know, Mr.
Chairman, when it is in order I will
offer it.
The CHAIRMAN. The question is
still upon the substitute offered by
the gentleman from Cass (Mr. Max-
well.)
Mr. MAXWELL. Mr. Chairman. I
think there is sufficient reason why
we should have a land commissioner,
and the argument offered by the gen-
tleman from Otoe (Mr. Mason) sus-
tains my position. My substitute
provides for the performance of cer-
tain duties and requires the giving
of such bonds as are necessary, while
that proposed by the gentleman
from Otoe (Mr. Mason) leaves it to
the legislature to fix the amount of
the bonds. The election takes place
this fall and the person elected will
take charge of his office at the same
time of the meeting, and at that time
there would be no law requiring him
to give bond, and if the legislature
should fail to provide such a law
during their session, you will fail to
have the proper bonds given. The
gentleman complains of cheats in of-
fice and the way to guard against
this is to require the officers to give
sufficient bonds, and this is required
by the substitute I have offered here
for this report.
Mr. MASON. Let me inquire of
the gentleman if we have not provid-
ed in the executive article a general
provision that all officers shall give-
bonds for double the amount coming:
into his hands.
Mr. MAXWELL. But how are you
going to find out how much money is^
coming into his hands.?
Now as to the superintendent of
public buildings I think for the next
five years at least we will need suck
an officer. I am as much in favor of
economy as any gentleman on this-
floor, but would it be economy Mr.
Chairman to do without these of-
ficers at the present time. Their
salary will not be equal to the loss-
that we may have for the want of
these officers. It is paying a very
poor compliment to the people of this,
state to say that they will elect in-
competent officers. That argument
would hold just as good against any
other officer. Now as to trusting ta
the legislature, every man who has
been in a legislature knows the pres-
sure brought to bear on these bodies
to create new officers, here is a good
fellow out of business is the usual
argument used to get him into office
and give him a good salary. Now,
there is no such argument or in-
fluence used here, we are acting now
for the people of the state, and it
seems to me that it would be better
now for us to create these offices and
prescribe what the duties shall be.
Mr. ESTABROOK. Mr. Chairman.
I presume it will be recollected that
the reports of three committees were
kept in abeyance for the purpose of
fixing up this teport. The various
propositions are of such a character
as to set us again all afloat, and I
will not object to the motions if
BOARD PUBLIC LANDS AND BUILDINGS
21
Wednesday]
WAKELEY
[July 26
«,ny good can be accomplished, but
after listening to all the objections
I feel entirely confident that not one
objection has been urged that is ten-
able. I think the language and read-
ing of this report have not been duly
and properly observed. I undertake
to say that the legislature can pass
an enactment and limit the duties of
the treasurer of that board. It gives
them the right to regulate and con-
"trol, reconstruct and limit the pow-
ers of the board; they can declare
that the attorney general shall have
Tio other occasion with this board
than simply give advice; there is
•complete and ample power to pre-
-scribe. The suggestions that we have
an advisory board seems to me ridi-
culous. I believe in leaving it as
it is so that the legislature can de-
clare what duty each individual
member of the board shall perform.
You say that the attorney general
or treasurer are not elected for such
31 purpose. Who told you so? Our
constitution thus far simply creates
the office. Tell me what provision
■declares what duty the treasurer
«hall perform? We are simply pre-
scribing the duties of these officers
and it is not superadding anything
to their duties, because their duties
have not been prescribed. As a
member of this board the treasurer
shall perform the duty of keeping
safely the treasury; as a member of
the board shall keep safely the rec-
ord, books and accunts; and
as a member of the board the
attorney general shall have no
other connection with it than simply
^ve legal advice. It seems to me
that every single argument urged
against this board has been fully an-
swered by the terms and language
of the report itself. It says the du-
ties shall be discharged under such
rules and regulations as shall be
prescribed by law. One of the rules
is, if you please, that the treasurer
shall do nothing but simply hold the
funds. I would not make him a
member of an advisory board but
leave him to the duty that pertains
to his office, and the land commis-
sioner shall do the duties especially
pertaining to his office. What is to
be done with the funds? Supposing
you provide simply a land commis-
sioner, he sells the land and what
does he do with the funds? It is nec-
essary he shall have a treasurer, it is
necessary he shall have some law
officer with whom to advise, but says
the gentleman, that is his duty now.
Where did you learn that fact. I
propose he shall be placed in a posi-
tion, and that we shall now prescribe
and declare a portion of his duties;
as a law officer he shall act as at-
torney of the board.
Mr. WAKELEY. Mr. Chairman. I
do not propose to discuss the several
propositions that have been made.
The gentleman from Otoe (Mr. Ma-
son) in expressing his own senti-
ments upon this subject expressed
mine fully and almost exactly. I be-
lieve it is necessary that there should
be a land commissioner elected. I
think the public lands are of such
extent and value pecuniarily and the
interest connected with them so vast
that it would justify us in creating
the office of land commissioner, but I
am opposed to electing an additional
officer as a building commissioner. I
22
COM. PUBLIC LANDS AND BUILDINGS
' Wednesday]
WOOLWORTH
[July 26
think with the gentleman from Otoe,
we ought to be particularly careful
about multiplying officers. At best
we are obliged to increase the officers
of the state very considerably, we
are obliged to enlarge the judiciary,
provide for the election of four ad-
ditional judges, and are creating a
land commissioner in addition to all
these. I do not believe it necessary
to have an additional officer to per-
form the special duty of taking care
of the public buildings. I believe in
doing one of two things, either elect-
ing a state officer who shall be the
land and building commissioner and
who shall have supervision of the
public lands and buildings-, and per-
form such duties in regard to the
sale of the land and preservation of
the public buildings as the legislature
may confer upon him. I believe we
can safely do that. The business of a
constitutional convention is to pro-
vide for electing the officers, and leave
all matters of detail to the legislature
as far as possible. I think also with
the gentleman from Otoe, even the
continuance of the office of land com-
missioner ought to be left to the leg-
islature. I have drawn a section em-
bodying substantially my own ideas
on this subject which I will read.
"There shall be elected at the same
time as other ^tate officers are elected
1 land and building commissioner who
shall have general supervision of the
lands and buildings belonging to the
state: and shall perform such duties
and have such powers in respect to
the same and to the sale of the lands
as the legislature may provide. He
shall receive a salary to be .fixed by
law; and the office may be abolished
whenever the legislature shall deter-
mine, .that it has -become unneces-
sary."
i do not offer it as an amendment,
but for the purpose of arriving at a
vote in regard to the necessity of a
building commissioner. I move to
amend the substitute offered by the
gentleman from Cass (Mr. Maxwell)
by striking out all that relates to a
building commissioner.
Mr. WOOLWORTH. Mr. Chair-
man it is not my desire to say any-
thing more with reference to the mer-
its of these propositions made to the
committee. I felt as if I had dis-
charged my duty. But some views
have been presented to the commit-
tee this morning from which I am
bound to dissent, and that dissent I
beg to express in the most emphatic
manner. I am opposed unqualifiedly
and from beginning to the end to
leaving to the legislature the power
to create officers at liberty. I am
opposed to submitting this constitu-
tion to the people of this state with-
out an expressed provision limiting
the .number of officers. Now I went
over the subject the other day and I
do not think it necessary for me to
repeat what I have said. I think
what I said met the concurrence of a
very decided majority of the con-
vention, but I will say, that I am op-
posed to leaving to the legislature
the power of doing what former leg-
islatures have been doing, creating
three inspectors of state's prison,
and giving to those inspectors two
thousand dollars each per annum.
There is one thing I am opposed to,
I am opposed to repeat it in respect
tp every public institution in this
statei, so that we should have twenty
men under, the pay^ of the state, in
care of state institutnions, that I am
COM. PUBLIC LANDS AND BUILDINGS
23
Wednesday]
WOOLWORTH
[July 26
emphatically opposed to. So much
I desire to say with reference to the
remarks made by the gentleman from
Otoe, the Chief Justice of the state,
and concurred in, tacitly at least,
by my colleague, Judge Wakeley.
That proposition I shall stand by, and
contend for from first to last.
Now there are two or three plans
it is worth while for us to compare
together and see where we are com-
ing out. Shall we have a superinten-
dent of public buildings as such.
For my own part I do not care wheth-
er you create the office as a separate
office, or make the land commissioner
take charge of the public buildings.
The suggestion made by my colleague
last upon the floor, that the super-
intendent of public lands might also
be the_ superintendent of public
buildings, has many considerations
to commend it. Perhaps the duties
of the two officers are not incom-
patible and may be discharged by one
officer. Perhaps sp. Upon that sub-
ject I have no debate with anybody.
Now as to the matter of this board,
I think that the officers that are
mentioned in the proposed article
and the composition'^ of this board
are misconceived by the- committee.
Or by some of the gentlemen who
have been upon the floor; altogether
so. It is said — "prescribe the du-
ty of these officers." Well, sir, the
committee of the whole has reported
an executive article in which it has
created the office, of Governor,' of
Secretary of state, of Auditor of
Public accounts, of Treasurer, and
of Attorney General. Are the du-
ties of any of these officers prescrib-'
ed in that article? In one single one
of them? Gentlemen say "But their
duties are referred to sufficiently by
the title that is given them." Well,
is not that just as true of the land
commissioner or the superintendent
of public instruction? It seems to
me it is just as true with respect to
one officer as to the other. It is im-
possible for the constitution to go
into detail on this matter. Why, gen-
tlemen, you never can harmonize the
differences of this committee.
As was said by my colleague last
upon the floor, the business of the
constitution is to establish the offices
and let the duties and details be
regulated by the legislature. You
have done that in respect to the six
already created. Why not do so in
respect to other officers.
Now, as to the board. The ar-
ticle says that the supervision of
lands, etc., shall be under the gene-
ral supervision of this board. The
executive officer of the board; the
man that shall sell the lands, etc.,
shall be the land commissioner, but
the general matter of the care of
these lands shall be in the charge of
these state officers. That is all that
is done. That seemed to be — it cer-
tainly was — the view of the com-
mittee when it had this matter before
it the other day. And it seems to me
how to have a great many considera-
tions to commend it to our attention.
Not that I am particularly strenuous
about it; but I do not think the peo-
ple of the state, knowing how the
great body of the lands of the state
are said to have been administered
upon heretofore; I do not believe
the people of this state will be grati-
fied at all with the proposition giv-
24:
BOARD PUBLIC LANDS AND BUILDINGS
Wednesday]
WOOLWORTH
[July 26
ing the care of the great body of the
public lands into one man's hands.
A board, not to have the charge of
the details, but to have general su-
pervision of the management of the
lands, seems to be necessary; seems
to be a wise measure. Their duties,
what the general disposition shall be,
that they shall make of the lands, is
in the charge of the legislature where
it ought to be. They are directed by
the legislature — the commissioner is
directed by the legislature. They
cannot have charge of the details.
Now as to the propriety of having
certain state officers associated with
the land commissioner in the man-
agement of these matters. The pro-
priety of having the treasurer con-
nected with the land commissioner is
evident from the fact that it never
will answer at all to let the land
commissioner receive the money and
pay it to the treasurer. Why, if you
do so there is no check on the land
commissioner; and he may run riot
with the proceeds of the sales. So
there is a manifest propriety, as sug-
gested by my friend on the left to
have state officers connected. So
again in respect to the Attorney
General. Here are securities that
will be in the hands of the land com-
missioner, which must be in the
hands of some officer to enforce.
Now, here is a question whether these
securities shall be enforced in a par-
ticular case, or a certain class of ca-
ses. There is manifest propriety in
having state officers connected to-
gether to consider the matter and act
upon consultation, and act discreetly.
These are the considerations in fa-
vor of creating this board. Not a
simple advisory board, as suggested
by the gentleman from Otoe — the
board having a general supervision.
I might go on and elaborate these
views at greater length. For my-
self, while I am perfectly willing
that the office of superintendent of
public buildings shall be dispensed
with and the land commissioner
have charge also of the public build-
ings, I am in favor of retaining the
board just precisely as the commit-
tee reported, having the general
supervision and charge of these pub-
lic lands.
And then, above all things, I am
in favor of providing that the legisla-
ture shall not go on and create offi-
ces, more for tht, sake of their be-
ing occupied and the salary appor-
tioned to them being drawn by the
appointees, than to have the duties of
those offices faithfully discharged.
Agents to discharge temporary du-
ties may still be created, may upon
certain exigencies be demanded, but
offices, permanent offices, ought all to
be provided for in the constitution,
and nothing whatever left to the leg-
islature. If so it will not be five
years; it will not be one year be-
fore you will have the 20 officers
charged with the care of the state in-
stitutions spoken of the other day
by the gentleman from Lancaster.
"This army of office holders will not
only administer upon the bankrupt
estate of the people, but you will
have them squandering the public
funds altogether."
Mr. MYERS. Mr. Chairman. So
many propositions have been stated
here and so many amendments of-
fered, that an ordinary man like my-
COM PUBLIC LANDS AND BUILDINGS
25
"Wednesday
MYERS
[July 26
self can hardly see his way through
the wilderness; and if an error of
judgment is committed I am certain
lie will have sufficient excuse to ac-
quit him of blame in the premises.
Now, sir, I am opposed to the in-
crease of public oflBcers, as a republi-
can, not in a party sense. That we
should not increase those state of-
fices to such an extent as to become
a burden to the state, to eat out the
substance of the people without ren-
dering adequate return for those ser-
vices, Or for creating offices without
having duties to perform. But if
there is one question more than an-
other that requires the parental care
of the people of this state, that re-
quires their eternal vigilance, their
unsleeping attention, it is the land-
ed interests of this commonwealth —
and in none has there been more ap-
parent criminal negligence than in
this department of the public wealth.
And, now, sir, if we must create an
officer to have control of this vast
wealth that has been given to the
people of this commonwealth by the
general government; if we must have
an officer of this kind, let us have
one that will be acting on the respon-
sibilities of his office, under oath, and
under obligations such as the legis-
lature may require. Let him, and
him alone, be responsible for the dis-
charge of the duties of that office, un-
der the restraints as shall be made
by the sovereign power — the legisla-
ture.
I, for one. am not in favor of di-
viding the responsibility among a half
dozen or three individuals, but I want
one man, who has the confidence of
the people to be the custodian of all
this property. I do not want, Mr.
Chairman, any dodging of the officer
who has charge of this department,
by shifting from his shoulders the
mis-management that may occur
through the negligence of others. I
believe that the individual who has
been commissioned to a certain du-
ty shall be held to the discharge of
that duty, and if he fails to perform
his duty, let him be impeached and
removed from office. Let him have
no escape by throwing the responsi-
bility upon the shoulders of others.
I oppose, as a principle, this increas-
ing of public officers, but when there
is one required as essentially as this,
I am in favor of having him appoint-
ed, or elected by the people, if you
please, who will be responsible for
everything connected with the of-
fice. This is the custom in the man-
agement of affairs at Washington.
The Secretary of State, for instance,
is responsible for millions of dollars
worth of public property. He has no
advisory board and I would advise
that the land commissioner be made
a separate and distinct office, and
that this office be an office of record.
Let an office of record be there in
that department of the government,
so that a full and complete record of
everything connected with the state
lands may be kept, and I am sure
there will be system and a sense of
responsibility that will secure stabili-
ty and safety. This office I believe to
be necessary. It ought to have been
established originally as a part of the
state government in order that we
might have had a starting point. I
am sure that much of this public
plundering and land grabbing would
26
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
ESTABROOK— MYERS— MAXWELL,
[July 2&
not now be upon the records.
Mr. ESTABROOK. (To Mr. My-
ers) Let me ask a question.
Mr. MYERS. Certainly.
Mr. ESTABROOK. You say that
the secretary of the United States is
an independent agent. Does he not
act as one of a board — does he not
get advice from the cabinet?
Mr. MYERS. He is secretary to
the board, but he acts under the law.
The president or no one else has no
control over him. I would have the
land commissioner under the control
of nothing but the legislature. Such
an officer I would have; such an offi-
cer I believe would answer the pur-
pose better than to fritter away your
responsibility from one officer to an-
other like a homeopathic dose of
medicine scattered out over a great
deal of ground.
Mr. MAXWELL. Mr. Chairman. I
would like to say a few words about
striking out section two. I am in
favor of leaving it to the legislature
to say what offices shall be created.
I was a member of the legislature at
the time our present constitution was
provided. Many offices were not cre-
ated at the time, which have
been found necessary since. We
found after we became a state that
we must have an auditor and other
officers. These have been created
by the legislature, but if it is propos-
ed to allow the legislature to create
offices just as they see fit, there is
no use of our making a constitution
at all,, so far as these points are con-
cerned. JB it not better to create all
the offices that are absolutely neces-
sary to carry on the government of
this state, and so far as possible, pre-
scribe their duties. The gentleman
from Douglas (Mr. Estabrook) seeks
to have the attorney general made a
member of the board, because his
advice will be needed. Why. is not
that a part of his duties. I read from
the laws of 1869.
"It shall be the duty of the attor-
ney general, at the request of the
governor, the secretary of state, the
treasurer or the auditor to prosecute
any official bond, or any contract in
which the state is interested, deposit-
ed with either of them, upon a breach
thereof; and prosecute or defend
for the state all actions, civil or
criminal, relating to any matter con-
nected with either of their depart-
ments."
That is what the law now provides,
so that nothing is gained by making
him a member of the board. The ob-
jections of the gentleman from Otoe
(Mr. Mason) may be obviated by a
section like this:
"Resolved, that the legislature may
provide that the duties of superinten-
dent of public buildings shall be per-
formed by the land commissioner."
Now if there should be no duties
to perform the legislature might
provide that the land commissioner
should do. the duties of both offices.
It seems to me that if we don't pro-
vide this office, that the state will sus-
tain great loss and it seems to me
that this part, sought to be struck
out, ought to be retained. Suppose
the pay of this officer is fixed at $2,-
000 per year, In five years this would
amount to $10,000. Now the state
m^y lose twice that sum in a single
large contract. I say it is 'necessary
that there should be some one to take
charge of the duties of this office.
1 believe there are already too many
COM. PUBLIC LANDS AND BUILDINGS
27
Wednesday]
CASSELL— MYERS— BOYD
[July 26
officers of a certain kind, but this
office will abolish some of these of-
ficers. I trust that the section wiill
not be stricken out.
Mr. CASSELL. Mr. Chairman. I
will state that the committee had
the question of economy in view when
they made this report. It has been
said, and truly, that we have a great
many small offices which can be sav-
ed by the establishment of this office.
The amount of the salary should not
be made an important consideration,
as the sum can be saved by doing
away with a number of smaller offi-
ces.
The CHAIRMAN. The question is
upon the motion to strike out that
portion of the substitute which re-
lates to the superintendent of public
buildings. The substitute reads as
follows:
"There shall be elected under the
first election under this constitution,
a land commissioner, who shall have
charge and dispose of, in the man-
ner provided by law, all the lands
owned by the state', and shall give
bond to the state in the sum of $100,-
000 and shall receive a salary of
$1,800 per annum.
There shall also be elected at the
first election under this constitution,
a superintendent of public buildings,
who shall have charge of all public
buildings and grounds owned by the
state and of the erection and repair
of the same in the mode provided by
law; who shall not be interested in
any contract relating to the same,
and shall give bond to the state for
the sum of $100,000 and shall receive
•a salary of $1,800 per annum.
,, i The CHAIRMAN. The question is
■•pn- striking out that portion of the
.substitute -which relates to the su-
perintendent of public buildings.
The motion was not agreed to.
The CHAIRMAN. The question
now is upon the adoption of the sub-
stitute offered by the gentleman
from Cass (Mr. Maxwell).
Mr. MYERS, Mr. Chairman. Is
that open for amendment now?
The CHAIRMAN. I suppose it is.
Mr. MYERS. Then, Mr. Chair-
man, I move to strike out that part
relating to bonds and salaries, and
leave that for the legislature to fix,
to insert "shall give bond and receive
such salary as the legislature shall
prescribe."
The CHAIRMAN. The question is
on the amendment of the gentleman
from Douglas (Mr. Myers.)
The amendment was not agreed to.
The CHAIRMAN. The question is
now upon the adoption of the sub-
stitute offered by the gentleman from
Cass (Mr. Maxwell.)
The substitute was not adopted.
The CHAIRMAN. The question
is on the amendment of the gentle-
man from Douglas (Mr. Hascall.)
Mr. BOYD. Mr. Chairman. If
the gentleman will allow me I have
an amendment which I wish to offer
to be added to the end of the section.
The CHAIRMAN. Read the amend-
ment as follows:
"And shall receive such compensa-
tion and perform such duties and be
subject to such rules and regulations
as may be prescribed by law: Provid-
ed/, the office of land commissioner
and superintendent of public build-
ings may be abolished whenever the
legislature think them no longer nec-
essary."
Mr. HASCALL. Mr. Chairman. I
28
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
HASCALL— MAXWELL— WAKELEY
[July 86
•will accept the amendment.
Mr. MYERS. Now, Mr. Chairman,
I am opposed to the last clause of the
amendment as offered by the gen-
tleman from Douglas (Mr. Boyd) for
I want to have these offices estab-
lished by the constitution. I am
not in favor of establishing a consti-
tutional office and then placing it in
the power of the legislature to abol-
ish it whenever they please. I hope,
sir, that my friend will take that part
out of his amendment.
Mr. HASCALL. Mr. Chairman. As
it stands now, I notice that the land
commissioner and superintendent of
public buildings are not mention^^d
in the section. I would ask my col-
league to insert those names at the
beginning of the amendment.
Mr. BOYD. I will agree to that.
1 thought it was inserted before in
the section.
Mr. ROBINSON. Mr. Chairman.
There was a substitute sent up by
Judge Mason during the discussion.
I move its adoption in the place of
the whole section. I call for the
reading of the substitute.
The CHAIRMAN read the substi-
tute as follows:
"There shall be a land department
which shall be in charge of a general
land commissioner, who shall be
elected by the people for three years
and whose duties and salary shall be
prescribed by law."
Mr. NEWSOM. Mr. Chairman. I
move to strike out the words "by the
people'.'
Mr. ROBINSON,
amendment.
I accept the
The CHAIRMAN. The question is
on the adoption of the substitute
just read.
The substitute was not adopted.
The CHAIRMAN. The question now
arises on the amendment offered by
the gentleman from Douglas (Mr.
Hascall) to the original section.
The committee was divided and the
amendment was agreed to.
Mr. MAXWELL. Mr. Chairman.
I move to strike out all of the ori-
ginal report after and including the
words "together with the auditor."
The motion was not agreed to.
Mr. WAKELEY. Mr. Chairman.
For the purpose of testing the sense
of the committee as to whether there
should be elected one officer or two
I move that the section be referred to
the committee with instructions to
provide for electing only one officer
to be called Land and Building Com-
missioner.
Mr. KIRKPATRICK. Mr. Chair-
man I move the committee rise, re-
port progress, and ask leave to sit
again.
The motion was not agreed to.
The CHAIRMAN. The question is
on the motion of Mr. Wakeley.
The committee divided and the
motion was agreed to.
Mr. BOYD. Mr. Chairman. I
move that the committee rise, re-
port progress and ask leave to sit
agaii^, and recommend the re-com-
mitment of the report.
The motion was agreed to.
Report of Committee of the Whole.
Mr. GRAY. Mr. President. The
committee of the whole have had un-
der consideration the report of the
FUTURE AMENDMENTS
29
Wednesday]
RE Y NOLDS— L AKE
[July 26
special committee on the subject of
land commissioner and report the
same back with the recommendation
that the same be referred to the
special committee with instructions
to report a section providing for but
one officer to be denominated Land
and Building Commissioner.
The report was adopted nem.con.
Adjournment.
Mr. MYERS. I move we adjourn.
The motion was agreed to, so the
convention adjourned at twelve
o'clock and eight minutes.
AFTERNOON SESSION.
The convention met at two o'clock
and was called to order by the presi-
dent.
Engrossment.
Mr. REYNOLDS. Your commit-
teen beg leave to report the Bill on
Future Amendments and find it pro-
perly engrossed, and recommend it
be read a th. d time and put on its
passage.
Future Amendments.
Mr. LAKE. Mr. President. I would
like to enquire if there is not a
special order for two o'clock today.
The PRESIDENT. Yes, the Ex-
ecutive Bill. But this bill just re-
ported is on its passage. All bills on
their passage are always in order.
The Secretary read the bill on j
Future Amendments, as follows: i
ARTICLE-
Future Amendments.
Sec. 1. Any amendment or
amendments to thi-j constitution may
be proposed in the senate or house of
representatives, and if the same
shall be agreed to by a majority of
the members elected to each house,
such proposed amendment or amend-
ments shall be entered upon their
journals, with the yeas and nays ta-
ken thereon, and the secretary of
the state shall cause the same to be
published weekly for three months
immediately preceding the next
election, in at least one newspaper
in every county in which a newspa-
per shall be published; and if in the
legislature next afterwards chosen,
such proposed amendment or amend-
ments shall be agreed to by a
majority of the members elected to
each house, the secretary of state
shall cause the same again to be pub-
lished for the time, and in the man-
ner aforesaid, and such proposed
amendment or amendments, shall be
submitted to the electors of this state
for adoption or rejection, at the next
election of members of the legisla-
ture, in such manner as may be pre-
scribed by law; and if the people
shall approve and ratify such amend-
ment, or amendments, by a majority
of the qualified voters of this state
voting thereon, such amendment or
amendments shall become a part of
the constitution; provided, that If
more than one amendment be sub-
mitted, they shall be submitted in
such manner and form that the peo-
ple may vote for or against each
amendment separately and distinct-
ly.
Sec. 2. Whenever two-thirds of
the members elected to each house
of the legislature shall, by a vote
entered upon the journals thereof,
concur that a convention is necessary
to revise, alter, or amend the consti-
tution, the question shall be submit-
ted to the electors at the next general
election. If a majority voting thereon
30
EXECUTIVE DEPARTMENT
Wednesday]
WOOL WORTH— PRESIDENT
[July 36
at the election vote for a convention,
the legislature shall, at the next ses-
sion provide for a convention, and
shall in the act calling the convention
designate the day, hour and place of
its meeting, fix the pay of its mem-
bers and officers, and provide for
the payment of the same, together
with the expenses necessarily incur-
red by the convention in the perfor-
mance of its duties.
The law submitting the question
shall be published for the time, and
in the manner provided in the pre-
ceding section, as to proposed amend-
ments.
The PRESIDENT. This is the
third reading of the proposition.
It is now on its passage, and only
subject to amendments by unani-
mous consent. Secretary, call the
roll.
The vote was taken and the re-
sult was announced as follows: —
Ayes, 44; Noes
Abbott,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
Eaton,
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Mr.
Mason,
Manderson,
Maxwell,
Myers,
Neligh,
Newsom,
Philpott,
Price,
Reynolds,
ShafC,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,
President. — 44.
Absent and Not Voting.
Grenell,
Moore,
Parchin,
Parker,
Robinson,
Scofield,
Speice.
So the article was adopted.
The PRESIDENT. The question
is upon referring to the Committee
on Revision and Adjustment.
The bill was so referred.
Executive.
The PRESIDENT. The special or-
der of the hour is the Executive pro-
position.
Mr. WOOLWORTH. If, as the se-
lect committee on the state buildings,
etc., proposed, in its report, which
was under consideration this morn-
ing, the officer or officers therein
named be made branches of the ex-
ecutive department, the executive ar-
ticle will need to be somewhat modi-
fied, I would suggest that we let the
executive article await on action up-
on the other matter.
The PRESIDENT. The bill has
not been reported back and so cannot
be acted upon.
Mr. WOOLWORTH. I do not see
the necessity of engrossing until it
has been perfected by the convention.
The PRESIDENT. It was sent to
that committee by the convention.
Committee of the Whole.
Mr. WOOLWORTH. I move, Mr.
President, that the convention go in-
to the committee of the whole for
the purpose of considering the ju-
diciary article.
The motion was agreed to, and the
convention went into committee of
the whole — Mr. McCann in the chair
JUDICIAL DEPARTMENT
31
Wednesday]
LAKE— HASCALL— WAKP:LEY
[July 26
— for the consideration of the ju-
diciary article.
Judiciary.
The CHAIRMAN. Gentlemen, you
have for consideration, the article,
the report of the Judiciary Commit-
tee. I will read the first section:
Judicial Department.
Sec. I. The judicial powers of this
state shall be vested in one supreme
•court, district courts, county courts,
justices of the peace, police magis-
trates, and in such other courts in-
ferior to the district courts as may be
created by law for cities and incor-
porated towns.
The CHAIRMAN. Section one is
before the committee.
Mr. LAKE. There is one provis-
ion here that I desire to call the at-
tention of the committee to. I think
that the section should be amended.
It is provided that the judicial pow-
er "shall be vested in one supreme
court, district courts', county courts,
Justices of the peace , police magis-
trates, and in such other courts in-
ferior to the district courts." I am
inclined to the opinion that the limi-
tation should only be extended to
making them inferior to the Supreme
Court. Now it might be the desire to
create a court in the city that should
have a jurisdiction equal at least, to
that of the district courts; and if
this provision remains as it is in this
section it could not be done, and I
have heard it frequently expressed
in public that it might be necessary
for the best interests of certain
communities, hereafter, at some time,
to create a court for cities that should
have a jurisdiction, at least, equal
to that of the district courts; per-
haps not so extensive in some re-
spects but in respect to crime
that should have a jurisdiction as
great as that of the district court.
And for the purpose of testing the
sense of the committee, I move that
the words "district courts," in the
second line, be struck out, and the
words "supreme court" inserted.
Mr. HASCALL. Mr. Chairman. I
shall vote against the proposed
amendment. I like this section as re-
ported by the committee. The re-
port provides for district courts to
try not only civil, but criminal cases;
as this is the case now, our laws as
now passed, mention district courts,
now if you amend this, the laws will
have to be revised and the Supreme
Court referred to instead.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas.
Mr. WAKELEY. Mr. Chairman.
If it was intended by the law to con-
fer upon municipal courts a jurisdic-
tion equal to that of district courts.
I suggest to the Chairman of the
committee that it would be better to
change the section by saying "not
exceeding the jurisdiction of the dis-
trict courts," than to say "inferior to
the district courts." I think it would
not be proper to confine the jurisdic-
tion of any other court by reference
to the jurisdiction of the Supreme
Court. I agree with the opinion of
my colleague last up; (Mr. Hascall)
the section is right as it stands. The
section as drawn, meets my views
and I am opposed to any amendment-
32
TEEMS OF SUPREME COURT
Wednesday]
LAKE— WOOL WORTH
[July 26.
Mr. LAKE. I have no feeling on
this subject at all, I brought it to
the attention of the committee in
order that it might be considered
before the section was adopted. The
section, as reported by the committee
meets my favor, but for the purpose
of bringing the matter before the
committee which has been spoken of,
I mention it now.
The CHAIRMAN. The question is
upon the amendment.
The amendment was not agreed to.
The CHAIRMAN. The question is
upon the adoption of the section.
The first section was adopted.
The Chairman read the next sec-
tion as follows:
Sec. 2. The Supreme Court shall
consist of three judges, a majority
of whom shall be necessary to form a
quorum, or to pronounce a decision.
It shall have original jurisdiction
in cases relating to the revenue, man-
damus, quo warranto and habeas cor-
pus, and such appellate jurisdiction
as may be provided by law.
The second section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 3. At least two terms of the
Supreme Court shall be held in each
year, at the seat of government, at
such times as the legislature may
provide.
Mr. WOOLWORTH. Mr. Chair-
man. The time of holding the courts
in the different counties should be
regulated. The holding of these
courts is done very much at haphaz-
ard. I am not so familiar with the
course of doing business in the first
district as in the second district, and
any gentleman who has conducted
business in that district will agree
with me that it is the cause of great
diflaculty in doing business in the
courts of that district. Sometimes the
terms in two counties are brought
so close together that the business
in one county could not be transacted
before the business in another coun-
ty commences. I have known it to
occur that there were three courts
in session at the same time and I had
engagements in each. My engage-
ments are not so numerous as those
of other members of the bar. I shall
move the committee strike out of
this section^ the last clause, begin-
ing at the word "government." I
wish to have it fixed by the judges
of these courts instead of the legis-
lature.
Mr. LAKE. Mr. Chairman. I
agree with all the gentleman has said
in respect to the difficulties of doing
business in the courts, not only in
the second district, but throughout
the state. I believe there has been
no time, since I have had the honor
of presiding in the second district,
but there has been a law upon the
statute books requiring courts to be
held in two counties at the same
time in that district. The first law
we had after we became a state re-
quired that the fall term should he
held in the counties of Seward and
Saunders at the same time. The
last legislature had their attention
called to that fact and were asked
to fix the time of holding the terms
of court in the second district so
that there should be no clashing. A
bill was prepared, which, it was sup-
posed would fix that ,but by an
amendment which was afterwards
tacked on, the time of holding courts
ELECTION OF SUPREME COURT
33
Wednesday]
GRIGGS— MANDERSON— WEAVER
[July 26
in Seward and Butler came on the
same day, so that we have been com-
pelled to leave a large amount of
business unfinished in various coun-
ties of the districts from time to time
on account of the peculiar provisions
of the law fixing the time of the terms.
Now if there could be a remedy ap-
plied there it would secure a good re-
sult, not only to the people of the
district, but also to the people of
the entire state. The diflBculty is
that most of the counties desire to
have their courts held about the same
time of the year in a season not to
interfere with the farming interests,
and whoever shall have the fixing
of the time of holding courts, should
fix them with reference to those times
as near as possible, so as to make
them as little burden to the people
as possible. If that is left to the
legislature that would perhaps be
fixed to work as harmoniously as they
do now. I am sure they could be
no worse than they have been for the
past four years. I think the amend-
ment should prevail.
The CHAIRMAN. The question is
on the amendment by the gentleman
from Douglas.
The amendment was not agreed to.
The CHAIRMAN. The question is
on the adoption of section three.
Section three was adopted.
The Chairman read the next sec-
tion as follows:
Section 4. The judges of the
supreme court shall be elected by the
electors of the state at large, and
their terms of office shall be six
years, except at the first election, as
hereinafter provided.
Mr. GRIGGS. Mr. Chairman. I
move to strike out section four and
substitute the following:
The Chairman read the substitute
as follows:
"The state shall be divided into
three grand divisions to be denomi-
nated the Southern, Central and
Northern, until otherwise provided
by law, and there shall be elected
from each of said grand divisions
one judge of the supreme court who
shall be elected by the electors of the
state at large and whose term of office
shall be six years except at the first
election as herein provided."
Mr. GRIGGS. Mr. Chairman. I
don't wish to say anything particular
upon this motion, except that I be-
lieve that it woufd suit the people
of the state to have one of the Su-
preme judges come from each one of
these divisions.
The CHAIRMAN. The question is
on the adoption of the substitute of-
fered by the gentleman from Gage
(Mr. Griggs.)
The substitute was not adopted.
Mr. MANDERSON. Mr. Chair-
man, I move to strike out in the sec-
ond line the word "six" and insert
"nine."
The motion was not agreed to.
Mr. WEAVER. Mr. Chairman. I
move to strike out all in the first
line after the word "elected" down
to the word "six" in the second line,
and insert the word for, so that it
will read: "The judges of the su-
preme court shall be elected for six
years, except at the first election as
hereinafter provided."
Mr. MYERS. Mr. Chairman. I
move to strike out the word "six"
in the amendment and insert "flf-
34:
TERM OF SUPREME JUDGES
Wednesday J
MYKRS— WEAVER-STRICKLAND
[July 26
teen." On this I propose to say
only a few words. The judges of our
courts are set apart for the perfor-
mance of a special, distinct and more
important duty than any department
of our civil government. We ought
to elect men of ability in whom
the people have confidence and
when we secure such we should not
readily dismiss them. In the old
times, Mr. Chairman, our judges kept
their high positions for life, or dur-
ing £';ood behavior, and we had judg-
es in that day whose names are still
household words throughout our
land.
Mr. STEVENSON. Mr. Chairman.
I rise lo a point of order. What is
the question before the house?
The 'CHAIRMAN. The question is
on the amendment offered by the
gentleman from Douglas (Mr. My-
ers). The Chair understands the
gentleman is in order.
Mr. WEAVER. Mr. Chairman. I
rise to a point of order. The gentle-
man's amendment was to strike out
my amendment and insert "fifteen,"
My amendment had not been acted
upon. I don't see how we could
strike it out until we got it in.
Mr. MYERS. I do not desire to
proceed out of order, but desire to
state my reasons.
Mr. STRICKLAND. Mr. Chair-
man. I am opposed to the motion
my colleague, but make the motion
to strike out "six" in the section and
insert "fifteen" to give him an op-
portunity of explaining his views.
The CHAIRMAN. T'^e gentleman
from Douglas (Mr. My^ '^ has the
floor.
Mr. MYERS. It is not very ma-
terial to me in what position my
amendment stands but it is strictly
in order. Mr. Chairman. I have
formed attachments for able judges
who have ornamented the bench and
if a judge is elected by the people, and
of course they will elect judges in
whom they repose full confidence, it
is an injury to the public service that
they should be dismissed. In olden
times judges were appointed for life,
in older states for ten or fifteen
years and I do not see why we can-
not adopt the same principle in the
state of Nebraska. Let us elect the
foremost men at the bar as our
judges, set them apart from the or-
dinary pursuits of life and dedicate
them to the public service. They
become separated in their associa-
tions from the rest of their fellow
citizens. When a member of the
bar becomes thus situated and is
dismissed from the public service at
the end of six years he has to begin
life anew, his business is broken
off, his associations are gone in a
measure, and he is at sea, almost
without a rudder and compass, and
then in another point of view, we
elect a judge fresh from the bar, it
takes him six years until he becomes
habituated to the practice of the
court. It is necessary for him to
change his mode of thinking, to get
rid of hisexparte ideas he entertained
as a member of the bar. It is for
these reasons that I shall vote for the
longest time, and I venture to make
a prediction that as the state grows
older it will give the judges fifteen
years of public service. I hold that a
judge is set apart by his fellow citi-
SUPREME COURT
35
Wednesday]
KIRKPATRICK— TOWLE
[July 26
zens to serve his country as a judge,
and as a judge he must be separated
from religious and political disputes
"which agitate the country. How is
it our judges in the old states have
"become immortal, because they have
been in office and have served their
•country faithfully and well.
Mr. KIRKPATRICK. Mr. Chair-
man. I think the gentleman is mis-
taken. He claims that formerly
judges were elected for a long period,
I believe those judges who rose to
eminence were really always ap-
pointed. I think some of the judges
of the supreme . court have been
elected. I hope the amndment
"Will be voted down.
The amendment was not agreed
to.
The CHAIRMAN. The question is
on the amendment of the gentleman
from Richardson.
The committee divided and the
motion was not agreed to.
The CHAIRMAN. The question is
on the adoption of the section.
The section was agreed to.
Mr. TOWLE. Mr. Chairman. 1
liave a section which I wish inserted
between sections four and five.
The chairman read the section as
follows:
"At the first election of judges of
the supreme court, each elector may
cast as many votes for one candidate
as there are supreme judges to be
■elected, or may distribute the same
or equal parts thereof among the
candidates as he shall see fit, and
the candidates highest in votes shall
be declared elected."
Mr. HASCALL. Mr. Chairman. I
move that be postponed until we
reach the report of the committee on
electoral and representative reform. I
think it can be disposed of at that
time.
Mr. TOWLE. I will withdraw my
amendment.
The Chairman read the fifth sec-
tion as follows:
Sec. 5. The judges of the supreme
court shall, immediately after the
first election under this constitution,
be classified by lot, so that one shall
hold his office for the term of two
years, one for the term of four years
and one for the term of six years;
and at subsequent elections the term
of each of said judges shall be six
years.
The fifth section was adopted.
The Chairman read the sixth sec-
tion as follows:
Sec. G. The judge of the supreme
court having the shortest term to
serve, not holding his office by ap-
pointment, or election to fill vacancy,
shall be the chief justice and as
such shall preside at all terms of the
supreme court, and in case of his
absence the judge having in like
manner the next shortest term to
serve shall preside in his stead.
The sixth section was adopted.
The Chairman read the seventh
section, as follows:
Sec. 7. No person shall be eli-
gible to the office of judge of the
supreme court unless he shall be
at least thirty years of age, and a
citizen of the United States: nor un-
less he shall have resided in this state
at least three years next preceding
his election.
The seventh section was adopted.
The Chairman read the eighth
section as follows:
Sec. 8. The supreme court shall
appoint a reporter and clerk of said
court, who shall have their offices
36
JUDICIAL DISTRICTS OF STATE
Wednesday"
GRIGGS— HINMAN-HASC ALL
[July 26.
respectively for the term of three
years, subject to removal by the
court, and whose duties shall be pre-
scribed by law.
Mr. KIRKPATRICK. I would
suggest that there might be a better
word substituted for the word
"have."
Mr. LAKE. The word "hold" was
intended to be inserted . I suggest
that it be inserted.
The section was adopted with the
amendment.
Mr. MANDERSON. There is
nothing said about compensation for
the reporters.
Mr. WAKELEY. I would suggest
to the committee whether it would
not be better to provide that their
compensation should be prescribed
by law. I move to insert the
words "and compensation," after the
word "duties" in the second line
Mr. LAKE. That is unnecessary, I
would inform the gentleman, Mr.
Chairman, because we have a provis-
ion subsequently here which pro-
vides for the compensation of all of-
ficers not provided for in the article
itself.
Mr. WAKELEY. I will withdraw
the amendment. I see it is unneces-
sary.
The eighth section was adopted.
The Chairman read the ninth sec-
tion, as follows:
Sec. 9. The district courts shall
have original jurisdiction in all cases
of law and equity, and such appel-
late jurisdiction as is or may be pro-
vid<^d hy law.
The ninth section was adopted.
The Chairman read the tenth sec-
tion, as follows:
Sec. 10. The state shall be divid-
ed into four judicial districts, in each
of which shall be elected one judge,
who shall be judge of the district
court therein, and whose term of
office shall be four years, and un-
til otherwise provided by law said
districts shall be as follows:
Mr. GRIGGS. Mr. Chairman. I
move the adoption of that part of
the section.
The CHAIRMAN. I will read the
whole section through first:
First District — The counties of
Nemaha, Richardson, Johnson, Paw-
nee, Gage, Jefferson, Saline, Fill-
more, Clay, Franklin and all the
counties west thereof lying entirely
south of the Platte river.
Second District — Otoe, Cass, Lan-
caster, Seward, York, Polk, Hamil-
ton, Hall Buffalo, Dawson and Lin-
coln.
Third District — Douglas, Sarpy,.
Saunders and Butler.
Fourth District. — -Washington,
Dodge, Colfax, Platte, Burt, Cuming,
Stanton, Madison, Wayne, Pierce,-
Dakota, Dixon, Cedar, L'Eau-qui-
Court and the counties lying west
thereof.
Mr. HINMAN. Mr. Chairman. I
wish to offer an amendment. To
strike out the word "four," in the
first line, and insert the word "five;"
also to divide the district, as submit-
ted by me.
Mr. HASCALL. Suppose we vote
on each separate proposition first.
The CHAIRMAN. The Chair will
read the proposed amendment:
First District. — Nemaha, Richard-
son, Johnsoni, Pawnee, Gage and
Jefferson.
Second District. — Otoe, Cass, Lan-
caster, Saline, Seward, Saunders, and'
Butler.
Third District. — Douglas and Sar-
py-
JUDICIAL DISTRICTS OF STATE
37
Wednesday]
STRICKLAND— LAKE
[July 26
Fourth District. — Washington,
Dodge, Colfax, and all counties
north of the fifth standard parallel.
Fifth District. — Platte, Boone, and
all counties west of the sixth princi-
pal meridian and south of the fifth
standard parallel.
Mr. STRICKLAND, I would sug-
gest that the section had probably
be better sent back to the committee
so that the districts could be re-ar-
ranged. I would like this question
decided so that we can see what will
be done with the proposition. I call
for a division of the question.
The CHAIRMAN. The question
will be then, upon striking out the
word "four" in the first line, and in-
serting the word "five."
The Convention divided and the
motion was agreed to.
Mr. STRICKLAND. Unless the
gentleman from Lincoln, who offered
those amendments, desires to have
them considered now, I will make a
motion.
Mr. HINMAN. I would like to
hear the discussion.
Mr. LAKE. I hardly think it
would be proper to attempt to form
these districts at the present time.
The house is not quite full now, and
the question might be left until the
article has been gone through with.
It is not altogether certain yet that a
majority of this body will be for the
creation of five districts. There has
been no discussion; and, for one, I
am just as well satisfied you might
as well call for five wheels to a wag-
on as for five districts in this state.
I am informed that this matter has
been canvassed, and certain members
pledged to support it. If that is so
there is not much use of discussing
it. And we had better wait till we
get into the house. All know that
even when the business of the su-
preme court and district courts was
done by three judges that, with the
exception of perhaps the second dis-
trict, they were not overworked. And
in that district the judge has not
been overworked, although he has
not been able to do all the business.
Now, it is proposed to have four
additional judges; and it seems to me
that, as a tax payer and a member
of this convention representing the
j best interests of the people, and pro-
j viding a judiciary which shall meet
all the requirements of the business
and of their wants, that the increase
1 to four judges was ample for that
purpose. But if members of this con-
vention think otherwise, why just
let them put themselves on record.
It was discussed in the judiciary
committee at length, and we came
to a conclusion there that only four
were necessary. In regard to the
dividing of the state into districts
we are not, perhaps, required, at
this time, to arrange them satisfac-
torily. It would perhaps be better
to refer that to some committee to
arrange the districts after the num-
ber is determined upon by the con-
vention. And I move. Mr. Chairman,
that the arrangement of the districts
be deferred for the time being, and
that we proceed to the consideration
of the subsequent sections of this ar-
ticle.
Mr. WOOLWORTH. I did not vote
on the question whether there should
be four or five districts at all. I did
not know enough about the matter to
38
JUDICIAL DISTRICTS OF STATE
Wednesday]
WOOL WORTH— MASON
[July 26
reach a conclusion that was satisfac-
tory to myself, and so I left it. I
thought that when we came to con-
sider how the state should be dis-
tricted I would then hear from per-
sons from different parts of the state
as to their ideas on that matter; and
from that discussion I would hear
something that would aid me in
reaching a conclusion upon that sub-
ject; so that when I came to vote in
the convention I should vote intelli-
gently as far as I am concerned.
Now I am not content with what
my colleague upon the other side of
the house has said — that gentlemen
should place themselves upon the
record. For that matter I don't care
much for the record myself, nor how
anybody else stands upon it, I would,
however, like to hear from the gen-
tleman who are in favor of the five
districts, how they propose to redis-
trict the state. I cannot see that, in
the western part of the state, there is
really any necessity for another
judge. I am in favor of going back
to the four judges, leaving it to the
legislature to increase the number.
Mr. MASON. Mr. Chairman. I
desire to say here, that the present
time judges can do all the work in
this state, and not work to exceed
six months in the year. Now if it be
the purpose of this convention to
create a supernumerary, a judge who
is to be an ornamental instead of
useful. I have nought to do, ex-
cept to enter my protest against it.
At present, of the commencement
fees from the various districts a
large majority were received from
the second district, and the smallest
amount is received from the third
district. I may say here that the
dockets in the First district are
free; and yet the supreme court
business has been attended to and I
have not been busy more than 8
months in the year. Why if the four
districts should double in population
during the next five years, your dis-
trict judges, not having the supreme
court business to attend to, can do
it and keep the docket clean; and
I undertake to say that the business
will be better done, if it is done by
four judges instead of five, and they
should receive the pay of the five.
The judges will then be employed
most of the time, and will come to
the work with a brain trained to
work and decide points rapidly. I
must say, I was overwhelmed with
astonishment when this vote for
five district judges was announced.
I believe this is the only time I have
been on my feet this afternoon. I
am constrained to say this much un-
der great difiiculties. I must say
it is creating a supernumerary with-
out reason, and taxing the people
without cause. I undertake to say
that three judges can do all the busi-
ness of this state for the next four
years. In view of this fact, of in-
crease in the districts the commit-
tee agreed upon the fourth judge.
For these reasons, Mr. Chairman, I
shall make what battle I make in
respect to this matter against the five
judges, because I think it wrong. I
think it is against the best interests
of the state. Another thing, the leg-
islature can be given power to note
the increase of business in the differ-
ent districts, it will take the nee-
JUDICIAL DISTRICTS OF STATE
39
Wednesday]
HINM AN— MASON
[July 26
essary steps to let the fountains of
justice down upon the people,
through a greater stream. Where is
the man whose business is left un-
done in the courts, and I hold that
the judges are not employed more
than six months in the year.
Mr. HIXMAN. Mr. Chairman. The
gentlemen who live in the section of
country that is thickly populated
along the Missouri river, if they
would get out in the sparsely set-
tled country, they would, perhaps,
form a different opinion, as to
whether business is done or not. Now
let us look over the matter: Chey-
enne, Madison, Sherman, Howard,
Valley, Greeley and many other
western counties have no courts, but
are attached to other counties for
judicial and revenue purposes. There
never was a term of court in Lincoln
county that did all the business in
the county. The terms of court are
so arranged generally throughout
the state that there is only a week
allowed for each of the different
counties, and in that week, they
rush through everything, be the
amount large or small. In Lincoln
county, we had a murder case which
'was rushed through in one day and
night, and why? Because the judge
was anxious to get through the busi-
ness of the court in a week when the
case should have taken at least a
week. The witnesses were scattered
over the county, and it was impossi-
ble for the sheriff to get them to-
gether in the short time allowed him.
There are reasons why we should
have more courts; the business is
not done in our county; it is not
done in other counties; because the
judge does not see fit to call court
in our counties. These eastern judg-
es do not care much for us western
fellows. We are not down here very
often. The 2Gth district, which I
represent, includes an area of a large
portion of the state. Lines five hun-
dred miles long are drawn from east
to west and the state is divided into
three districts; and if the people have
a mind to come the entire length of
the state to have their business done,
they can, otherwise the busi-
ness is not attended to. The result
is in many in.stances we have to re-
sort to mob law in order to have any-
thing like law in our part of the
country.
Mr. Chairman, I think it is neces-
sary to have a western man who is
identified w^ith our interests, who
travels around our country and
knows something about the people.
These are my reasons for asking for
a fifth district. We are willing to
take all of that portion of the state
lying west of the sixth principal me-
ridian. We have in the western
part of the state a vast country
rapidly filling up, they have no rep-
resentative in the legislature and no
judge. If you will give us that you
may cut up your little triangular
handkerchief piece as you please. If
you refuse to graLt it we will soon
have a population there which will
speak in tones that will make you
listen.
Mr. MASON. Mr. Chairman. I
believe in giving to every part of the
state sufficient courts to attend to
their business; but when gentlemen
assume to speak for posterity I am
40
JUDICIAL DISTRICTS OF STATE
Wednesday]
ABBOTT— HINMAN
LJuly 26
inclined to think posterity will do
for itself.
Now I can speak for the dis-
trict lying south of the north line of
Otoe county, that no county commis-
sioners have ever asked for a court in
any county in that district but what
it has been had within a short time
after the publication in the paper,
and the business has been done and
dockets kept clean, the labor re-
quired not exceeding more than six-
months in the year. Now this being
the case with three districts and you
add the' fourth district, where I ask,
is the necessity of the fifth? I stand
here to say that I do know that three
judges can do the whole business of
the state and then not labor more
than six or seven moths in the year.
I am in favor of four but I am not in
favor of five districts, but I would
give to the legislature the power to
increase the number whenever they
find any judge over-worked, or any
portion of the people without a court.
Mr. ABBOTT. How long would it
take you to go from Otoe county to
Cheyenne county?
Mr. MASON. By railroad sir, I
think it would take about thirty-six
hours.
Mr. HINMAN. Mr. Chairman. I
wish to call the attention of the com-
mittee to the fact that Cheyenne
county and many other counties, and
much territory in the northwestern
portion of the state is attached no-
where for judicial purposes, it is
left out of this report entirely. In
reply to the gentleman's remarks
about the fostering care of the east,
I will tell you something about what
Lincoln county has done. They have
grappled with that monster corpo-
ration, the U. P. R. R. Co. and beat
them in a suit, and we collected the
taxes of 1869, amounting to about
$36,000.00, a portion of which is now
deposited in the bank at Omaha, to-
wit: about $23,000.00, ready for de-
positing in the state treasury when-
ever settlement is made with the
county commissioners, and the pro-
per time arrives. The R. R. Compa-
ny's attorney, Andrew J. Poppleton,
asked our county commissioners to
wait on the company for the taxes
of 1870 until July 10th. The com-
missioners feeling pretty good and
flush with money consented to wait.
What was the result of that wait-
ing?
On the sixth day of June, 1871, in
the legislature of this state a bill was
introduced by one Gerrard of Platte
county who lives 200 miles from Lin-
coln county, and 350 miles from
Cheyenne county. He introduced a
bill into the senate creating an or-
ganization in the county of Cheyenne,
giving them the right to collect and
receive taxes which had been levied
by Lincoln county for the year 1870,
to the tune of $32,000.00, out of'
$34,000.00 levied, thereby virtually ii
robbing this state of $22,000.00 and '
Lincoln county of $12,000.00 which
had become delinquent.
The U. P. railroad never will pay
Cheyenne county a dollar of that $32, -
000.00, nor do they intend to pay it.
Do you suppose they can keep that
county organized? Its officers have
to file bonds and oaths and they have
to elect officers without which they
cannot keep up their organization.
JUDICIAL DISTRICTS OF STATE
41
Wednesday'
HASCALL
IJuly 26
and I will engage that a man could
go there with a thousand dollars
and burst up the pretended organi-
zation of that county and then where
is your $32,000.00? If this man Ger-
rard had lived in Lincoln county and
•came back with that load on his
shoulders, I am afraid he would have
stretched hemp. The bill was pre-
sented the rules suspended, and it
was rushed through both houses in
one day and approved by the acting
governor. There was no one on
the floor from this county, containing
a belt of territory 300 by 400 miles,
to say anything for us and prevent
this steal. If this is all of the fos-
tering care which is to be extended
over us by the eastern portion of the
state, please to count my constitu-
ency out.
Mr. HASCALL. Mr. Chairman. I
am sorry it becomes my duty to cor-
rect the gentleman from Lincoln
(Mr. Hinman) on several matters. I
am with him on the main proposition
and believe they ought to have a
judicial district out west, still some
propositions he has presented here
are certainly erroneous and calculat-
ed to mislead the minds of gentlemen
present. In the first place the gentle-
man says that the last legislature
created the county of Cheyenne. I
I ask him when he read his statutes
last? If he will read the session
laws of 1867, he will find the county
■of Cheyenne was created at that time.
Now the facts of the case are these.
This county was attached to Lincoln
county for revenue and judicial pur-
poses, that is the reason why they
have been transacting the legal busi-
ness and levying the taxes of Cheyenne
county. I fail to see wherein Lincoln
county has any right to taxes collect-
ed in Cheyenne county. I wish to
say a word for Mr. Gerrard who is
absent. He did not deprive the
state of any of its taxes, nor deprive
Lincoln county of any rights in tax-
es to be collected, but merely ap-
portioning the money to be received
from these taxes equitably between
Cheyenne and Lincoln counties. He
talks about busting, I think it would
be just as easy to crack the Rocky
mountains as burst Cheyenne county.
This same gentleman, he speaks of,
introduced a bill into the legislature
by which Lincoln county was enabled
to pay an attorney they employed to
collect these taxes. If I recollect
right, after the law was passed there
was a little ring formed in Lincoln
county that put its hand deep
into the treasury and took out to the
tune of about $5,000. With regard
to these judicial districts, we want to
enquire in the first place is it unusu-
al or unreasonable. I am prepared
to say the proposition of five districts
is neither unusual nor unreasonable.
The state of Kansas formed a con-
stitution in 1859 which said the state
shall be divided into five judicial dis-
tricts in which judges shall be elect-
ed and hold court. Their population
at that time was less than 100,000.
Here we have, according to the cen-
sus 126,000, and gentlemen will not
deny that we have increased 40,000
since. There are important interests
in connection with Lincoln, Cheyen-
ne and other counties tliat requires
the presence of a judge in that locali-
ty, and I think the interests of the
western portion of the state demand
4^
STATK .irDICIAI. DISTKK TS
Wr<ln<>«il*>
H.\>l AlJ.
[July S6-
lhn( re hhuultl mnki' n dletrlrt out
IhtTf Wr hnvo nl IcnHt rtfty ornn-
nlwHl rounltes. and Jf you dlvld«' them
by nvp. that would make nt least
ten counties for each Judge to attend
to. A term of court should be held
In «'ach county at least once a year
and oftener If necessary. If they
do that their time Is occupied. We
are not makinK a constitution for
this present moment. It must nec-
ewMirlly be ratified this fall. The
Df^reKsltles of the state will certainly
require nil that Is claimed for these
judicial districts, we are looking
ahead to the next spring. This state
has heon very little tinderstood. and I
beli»'vp when It Is fully understood,
when wc bring all the modern ap-
pliances to bear, the western part
of the state Is going to be filled up
with the eastern part. A few^ years
ago It was thought that we required
lhre»' JudgcK to transact our business,
now the population of the settlements
west <if the sixth principal meridian
arc more important than the whole
■tatr was at the time when they
thought three judges could transact
this business. It is an advantage to
have judicial districts well defined.
Iheir limits well understood, courts
e««inli||Hhi>d within thos'' limits and
tboM- judgt'K and jourts getting in
MKtiHMfiil operation transacting biisi-
n«-HM They might be one year in ad-
Tance. kIIII I claim the state Is the
KBlner by It. Hy looking right along
Mils southern line you propose to at-
tach to Hlchnrdson. and Nemaha
rountleH. NuckoIlH, Franklin. Web-
ster and Harlan, and other counties.
And whnt do you prr>pose further?
Vou propone to attach to Otoe and
Cass counties that of Cheyenne,
which is 100 miles away. Now, in
the first district there is no railroad
to gel to distant towns, and in the
second district, if you connect by
railroads, you put the judges to great
expense to reach them, and make the
expense of litigants very great too. I
say it Is necessary to have a western
district, that the people may have a
judge residing among them and'
whom they may reach without great
expense: and that the judge may-
know the different counties in which
to hold court, when to hold it, and
hf)w to hold it. An impartial trial
is a consideration that citizens should
look well to. When we take into
consideration that a state with a
much less population than ours
adopts the five district system, and
this constitution gave power to the
legislature to increase it to as many
, more as they saw fit, and they have
since done so; showing their wisdom
in adopting it. and the necessity of
the increase. There are counties in
the north standard, such as Madison,
Pierce, Wayne and others which
'ought to have courts and it is im-
portant for their material prosperity
that they should have them. I live-
in a river town and represent a river
county, and I believe they would not
object. I do not believe that these-
new counties need any fostering. Let
them do as the older counties did"
before them.
For that reason I hope we will
adopt a fifth district system, and I
think the convention will adopt it.
At any rale, nienihers of this conven-
tion have no right to suppose the con-
vention will do otherwise. The pro-
UNION PACIFIC TAX SUIT
43
Wednesdaj-]
HASCALL— HINMAN
[July 26
position of the friends of the five
district scheme is here, and we can
build from it just as well as to refer
it to a committee. The gentleman
from Otoe, Mr. Scofield, I believe,
submitted a proposition to divide
the state into five districts, and those
counties were well grouped together.
And if that propostion is not satisfac-
tory then we can build on the one of-
fered by the gentleman from Lincoln.
Mr. Hinman. And in the fore part of
the consideration of this article it
was mentioned about establishing
courts in cities. I believe it would
be found, in practice to work bad,
and if the district court in Douglas
county is so crowded with business,
and it is necessary to have another
court then let us have another court
that can dobusiness without hav-
ing one with strange names, and
made for politicians to occupy fat po-
sitions.
Mr. KIRKPATRICK. I rise to
make a motion. I understand there
is no question before the commit-
tee —
The CHAIRMAN. There is. Up-
on the motion of the -gentleman from
Douglas to defer the formation of
the districts.
Mr. HINMAN. Mr. Chairman. I
did not intend to occupy the floor
as long as I have today during the
session of this convention; but there
are some things that need explaining,
with regard to the little ring in Lin-
coln county, spoken of by the gentle-
man from Douglas —
Mr. HASCALL- I did not allude
to the gentleman from Lincoln at
all. I believe he was outside the
ring.
Mr. HINMAN. I am not here
representing B. I. Hinman. I am
representing my constituents and de-
fending them froni foul aspersions;
and among them are the inhabitants
of Cheyenne, Buffalo, Dawson, Lin-
coln and various other counties that
need not be mentioned here. I live
in Lincoln county and I know those
officers are above reproach. Charles
McDonald has been known for years
in this state; longer, perhaps, than
the gentleman from Douglas ever
thought of being known and is a man
of known integrity and responsibili-
ty. M. C. Keith, with his partner,
is probably worth $100,000 and is a
man of integrity. M. H. Brown is
worth from $10,000 to $20,000 and
a most respectable and worthy man;
and these are the commissioners that
he accuses.
To show the plausibility of this
story about a ring let us see what
this attorney hired in the tax case
had to do. The U. P. R. R. Co., has
about 500 miles of railroad in this
state. They own equal to twenty
miles breadth of land the entire
length of the state and that through
the best and longest valley in the
state. This road extends about 700
miles beyond the state with the same
strip of land joining, or connecting
with the Central Pacific in Salt Lake
valley and is worth many millions
of dollars. She is an immense com-
pany. It was necessary for some
county to grapple with this pow-
er, and fight on this tax busi-
ness, and collect it. Lincoln coun-
ty did not wait like other counties
for some one to collect these taxes
for her, but took hold of the matter
-44
UNION PACIFIC TAX SUIT
Wednesday]
HINMAN— HASCALL,
[July 26
and sued them for the taxes. While
she was doing so, Cheyenne county,
to the west, and Dawson, Buffalo,
Hall, Merrick, Colfax, Platte and
TDodge counties on the east, and all
the counties along that line of road
with all their wealth, did not compel
the payment of taxes, but waited
tor us to do it.
Mr. GRAY. Except Dodge county.
She got her money.
Mr. HINMAN. It determined the
■ question whether Lincoln county got
$36,000 a year for years to come
and the state about $24,000 of that
..amount per year in taxes and wheth-
-er that company should or not pay
her taxes for the entire length of her
road in this state. Lincoln county
considered that her best course was
to employ an attorney that was worth
the money, and who could meet the
■company on their own terms and re-
cover the tax. How could she get
such an attorney? Could she pick
up a country pettifogger and pay him
five dollars? She employed an attor-
ney without any agreement as to fees.
When the suit was determined $5,000
was asked. There was some hesita-
tion at first unless the matter should
be followed to the supreme court by
the attorney; but relying on the hon-
or and liberality of their attorney
they paid him the amount asked. I
ask any respectable lawyer in the
state if that fee was too much, consid-
•ering the circumstances? There was
no ring about it. I will vouch for
that and I think that I am good for
the amount. I am astonished to see
the gentleman from Douglas (Mr.
Hascall) squirm, I never have intend-
'«d to cast any suspicion on any gen-
Jeman in this hall and have always
considered all members of that leg-
islature who are on this floor as per-
fectly honorable gentlemen; but I
was astonished to see him rise and
i cast aspersions at random without
knowing what he was talking about.
I am sure that I have not accused
j anyone of selling out to the U. P, R.
! R. Co. The gentleman knows
about as much about Cheyenne coun-
ty as he does of other matters of
which he has spoken and he does not
know much about either of them. He
says Cheyenne county was created,
probably before Lincoln county. I
do not know when the territory call-
ed Cheyenne county was marked out
on the maps, or embodied in the laws
of this state, but I ask him Why he
got in that little article in that law,
stating "that Cheyenne county is
hereby declared to be a duly organiz-
ed county, for judicial and revenue
purposes," and then declare that she
might go on and collect taxes levied
by another county over a year previ-
ous to that organization?
Mr. HASCALL. I did it because
the representatives of that district
said it was necessary.
Mr. HINMAN. Is that the reason?
He voted for it because the represen-
tative told him to do so. I fear that
too many of our senators voted in
that way.
Now, Mr. Chairman, about Cheyen-
ne being entitled to the taxes. This!
tax was levied in July 1870 —
The CHAIRMAN. The gentlemanj
will confine himself to the question.
Mr. HINMAN. This is in reply to
the gentleman from Otoe (Mr. Ma-
NUMBER JUDICIAL DISTRICTS
4:i>
Wednesday]
ROBINSON- LAKE
[July 26
son) concerning their protecting care
of the west and to show that there
was no ring formed in Lincoln coun-
ty and how the legislature
whilst impeaching David Butler for
$15,000 or $20,000 could reach their
long arms 360 miles and steal of
the state and Lincoln county $34,000
and that Lincoln county desired to
be excused from that fostering care.
Mr. ROBINSON. Mr. Chairman. I
want to say a word or two before this
motion is put. I am opposed to de-
ferrnig this matter. I am in favor of
five judicial districts, because three
have been found miserably deficient.
Now, sir, if three districts have an-
swered so well, why is it there is so
much complaint. Here in Lancaster,
we have had, until this year, but one
term of court. Jurors have been in
attendance, witnesses summoned and
most of the expense of having a term
of court was gone through with. It
may be different in the first judicial
district, but in the second judicial
district we certainly have cause to
complain. I undertake to say that,
in another three years, that even with
the wonderful industry and agility
of my friend from Otoe, Judge Ma-
son, one judge cannot do the business
of this district. Perhaps the gentle-
man from Otoe (Judge Mason) was
able to satisfy the people of his dis-
trict where only one term of court
per year was required but when more
terms are required we cannot get on
as we have done. I hope Mr. Chair-
man this motion will not prevail but
the mater will be fixed here and now.
If the gentlemen want to vote in the
convention, vote upon the record we
can have them.
Mr. LAKE. Mr. Chairman. The
Gentleman from Lancaster who was
just upon the floor has made certain
inquiries. I desire to answer them.
He wants to know why they have had
but one court each year in Lancaster
county. On the occasion of two
terms of court here, the members of
the bar of this county — among them
the gentleman himself — requested
me in writing that the court be not
held. The paper was also signed by
the county commissioners. The first
year court was held in this county,
but one term was provided for by
law, and that was held. Other years,
business was not properly attended
to perhaps, but it was caused by the
bad arrangement of the courts, as
provided for by the legislature. On
two occasions, adjourned terms have
been held in order to keep up with the
business, as there was only one week
allowed us to do work which requir-
ed at least two weeks. It seems to
me the responsibility should be plac-
ed where it belongs — upon the legis-
lature. Upon one occasion, the next
week after the Lancaster county
court a term was to be held in Sew-
ard county. It began on Monday and
the gentleman himself, with myself
and others was compelled to go over
to Seward on Sunday. I state right
here, that if the business of this dis-
trict had been properly arranged, it
could have been done by a single
judge. If the terms had been arrang-
ed so that when business commenc-
ed in any one county, it could have
been finished up before going to an-
other county it would have been all
right. There has never been a time
when a term of more than a week
^
46
VOLUME OF COURT BUSINESS
Wednesday]
LAKE-HINMAN
[July 36
could be held in Lancaster county;
it has always been necessary for
court to be held in some other coun-
ty the next week. It is impossible,
of course, for the judge to be at the
county seat of both counties in a sin-
gle day. The courts of Seward and
Saunders counties for 2 years past
have been filed for the same day, by
the legislature. In regard to this
postponement, I am satisfied that no
judicial district can be formed in
committee of the whole in any reas-
onable time. The different proposi-
tions that gentlemen are disposed to
make can be referred to a special
committee appointed to make this
district. When the matter can be re-
ferred again to the committee of the
whole house to consider after the
special committee makes a report.
Now, for the purpose of showing the
amount of business done by the dis-
trict of country represented by the
gentleman from Lincoln, I will refer
to a communication from the audi-
tor. The chief justice has told us he
has been able to perform all the busi-
ness of the first district without dif-
ficulty at all, only laboring about six
or seven months in the year. Now
referring to this report of the audi-
tor, I find that the number of cases
in the single county of Otoe, over
which the chief justice presides has
been five hundred and thirty eight
civil cases, in which commencement
fees have been paid. To this must
be added a great number of cases
wliere commencement fees were not
paid, and also the criminal business,
administrators sales, etc. Referring
to the district presided over by Mr.
Justice Crounse in which is the section
the gentlemen from Lincoln repre-
sents upon this floor, and we find that
the whole number of civil cases com-
menced in that entire district falls far
short of the number of cases in Otoe
county alone. They amount to only
448 cases against 538 in Otoe coun-
ty alone. Now what is the number
of cases in the region of country rep-
resented by the gentleman from Lin-
coln and Platte county 47, Lincoln
county G5, Hall county 16.
Mr. HINMAN. Will the gentle-
man allow me to state that there are
a number of criminal cases in which
there are no fees paid, and not includ-
ed in that number.
Mr. LAKE. The number is pro-
portionate with the rest of the coun-
ties of the state. I refer to these fig-
ures to show the business of these
counties. Mr. Justice Crounse has in-
formed me that he could perform all
the duties of that district in five
months. We have a law providing
for the county commissioners to re-
quest the holding of a term of court.
Justice Mason has said that he al-
ways called them in his district when
requested. I have done the same
in my district, with but one excep-
tion.
The county commissioners of these
back counties are sometimes very
ioath to ask for terms of court. This
was the case in Butler county, and
when the attorneys did prevail on the
commissioners to call a term to try
those Indians the rest of the term
was only the trial of one case, a lit-
tle civil case where seventy-five cents
was involved for ferrying a man
across the steamferry. With the en-
VOLUME OF COURT BUSINESS
47
Wednesday]
LAKE— ROBINSON— MASON
[July 26
larged jurisdiction that we propose
to give the countj- courts there will be
hut little business left them except
a few equity cases. Of course I ex-
pect in the county of Lincoln, they
ought to have their courts there held
promptly. I think they ought to be
held promptly in every county.
The business of Lancaster coun-
ty has increased very rapidly for the
past two rears and now it requires
at least two weeks for the trial of ca-
ses here. The legislature provided
that we could have only one week of
court and it is on account of this mis-
management or illmanagement by
the legislature of the terms of court,
that have deprived these counties of
the necessary times of court, but sir,
had the terms of court been arranged
as I could have arranged them or any
judge of the court would have done,
I think the business might have been
properlj- and well transacted. I have
made these remarks for the purpose
of calling the attention of the com-
mittee to some difficulties which have
arisen in the second district, and per-
haps the same has occurred n other
■districts.
Mr. ROBINSON. Mr. Chairman. I
am glad to hear from the gentleman
the fact th?-t some counties have not
had sufficient time for holding of
their courts. Now, sir, I would like
to hear what county has had suffici-
ent time allotted to it. There is not
sufficient time. I do not think
the gentleman from Douglas (Mr.
Lake) acting as judge of the district
cv)urt of the second judicial district
has ever been idle. It seems to me
he has had too much to do. I merely
wish to state a fact not for flattery as
to my signing papers I wish to make
a little explanation. I am charged
with signing a paper asking that the
term of court be adjourned. A couple
of attorneys had got into a bad pre-
dicament and brought me a paper to
sign. I refused, they came around
several times with it and finally I
i signed it but wrote under my name
I that I was opposed to the petition,
I they scratched out the note and sent
! it with my name without any re-
mark.
Mr. LAKE. I only said the gen-
tleman's name was there.
Mr. MASON. Mr. Chairman. I
I desire to add one single word. Gen-
1 tlemen of the committee will find
i this to be the fact that agricultural
I districts furnish but very little busi-
ness, very little litigation. For in-
stance, the county represented by my
friend Mr. Hinman (Lincoln) with a
population of 5,000 or 6,000 inhabi-
tants, rich in agricultural resources,
had only thirty cases in a year, there
i is very little litigation and no crime
at all to speak of. Get into Douglas,
Otoe, or Lancaster counties where
commerce is transacted, there you
find litigation, and I make this re-
mark to show that these agricultuarl
districts where you have no railroads,
where there are no commercial cities,
it will be found uniformly that the
business is very small indeed. It
speaks well for this class of counties.
I There is no necessity for this fifth dis-
trict, if there was the slightest need
j for it I should certainly favor it, but
j I do not believe there is. It seems to
i me that the desire for the fifth dis-
trict comes more from the plan in
respect to the present apportionment
48
STATE JUDICIAL DISTRICTS
Wednesday]
WOOL WORTH— LAKE
[July 26-
Of the state or districting the state,
than the necessity of a fifth judge.
I may say gentlemen, that I suggest-
ed the present mode of districting.
It strikes my mind favorably as rail-
roads run through every district. I
am not particular about the man-
ner in which it is districted, but to
use a very homely phrase, I do not
desire at this present time to load
down this instrument so that it may
die a premature death, fall still-
born.
Mr. WOOLWORTH. Mr. Chair-
man. I have listened to this discus-
sion with a great deal of interest
but there are two or three matters
upon which I desire to be informed.
I think there is a great deal of truth
in what has been said by the gentle-
man from Lincoln in the discussion,
I mean remarks he made pertaining
to this question. There is a good
deal in what he says about the neces-
sity of having a district judge and
court in these counties. In Douglas
county for instance, at least one-
third of the cases upon the docket
will go out of the district court into
the county court, and a great many
criminal cases will take the same
course, and this will take place in
every other county, especially the lar-
ger counties. It sems to me the ap-
portionment made by the committee
is not altogether a wise one.
Mr. LAKE. I would like to say
for the information of my colleague,
this division of the state into districts
was for the purpose of making a re-
port. It was not altogether certain
what would be the action of the con-
vention in respect to the number of
districts.
Mr. WOOLWORTH. I would like
to ask Mr. Lake one question.
Whether he is not of the opinion that
Douglas county with the counties on
the line of the Union Pacific railroads,
numbering six or seven, could not be
made a district, and the judge of that
district be able to do the business of
that line of counties, leaving of
course Saunders and Butler counties
to the district below the Platte river.
Mr. LAKE. I would have no ob-
jection to that mode of dividing the
state and of that form of district.
I think that perhaps a very large
amount of business over that of any
other district.
Mr. WOOLWORTH. It is a coun-
try so large, such a great extent for
a judge to travel over that it takes
a great deal of time and hard work.
If part of the district were taken
off and added to the district of
Douglas and Sarpy counties the dif-
ficulty might be obviated. I desire
to say to this convention, that there
is no ditficulty so great as adjourn-
ment of courts, the hastening of busi-
ness at terms and cutting terms short
before the business is concluded.
With what has been said by the
gentleman from Lincoln, and the
feelings of gentlemen from other
counties I quite sympathise. Just
now it so happens that a great many
of my cases are in the United States
circuit courts, where the circuit judge
is obliged to cut short his term, and
I have felt recently very seriously the
inconveniences that have been ad-
verted to. They are serious matters
that the committee and the conven-
tion ought to look at with a disposi-
tion as far as possible to avoid them
COUNTY COURTS— JUDICIAL DISTRICTS
49
Wednesday]
A BBOTT— WOOL WORTH— WAKELEY
[July 26
My object has been so far as I am
personally concerned, to try and
reach a conclusion satisfactory to
myself. I cannot hope to satisfy
anybody else. I submit to the gentle-
men from the western counties,
whether county courts being provid-
ed with a large jurisdiction, so that
a good part of their own business will
be provided for, and so that the
time for district judges will be re-
lieved a good deal, whether they can-
not get along with four judges. My
mind is not altogether clear yet, al-
though it seems to me this might be
done.
Mr. ABBOTT. Is it not a want of
confidence in county courts which has
prevented their general adoption
with larger jurisdiction? And was
this court not adopted to obviate the
necessity of making five districts?
Mr. WOOLWORTH. Well, sir, the
gentleman asks a question. I an-
swer. In New York the county
court has a jurisdiction to the extent
of $4,000. In Iowa they have lately
established another court, they call a
circuit court, one considered not
quite up to the rank of a county
court. It has no equitable jurisdic-
tion at all. The district judge gene-
rally holds his court in two counties
instead of one. I do not believe
there is such a provision in those
states, and other states.
But I wish to say right here that
the proposition has been discussed
by some gentlemen of appointing
county, rSiCl having them elected in
two or three counties united togeth-
er. I think the difficulties suggested
by the gentleman from Hall would be
obviated if that course were pur-
sued. Say three counties — Hall,
and perhaps Lincoln and Dawson
counties — associated together, and
have a county judge. I really think
that county court would be a court
presided over by about as competent
and fair a man as you could get in
the district court.
Mr. ABBOTT. That was my own
suggestion; and I suggested this as a
means of obviating the difficulty. It
is only $3,000 per year.
Mr. WAKELEY. Mr. Chairman. I
dislike to delay the committee, but I
will only do so for a few moments.
The question now is, I believe, on
passing these sections for the purpose
of referring them to the judiciary
committee.
The CHAIRMAN. To defer the
consideration of dividing the dis-
tricts.
Mr. WAKELEY. Very well, sir.
Mr. Chairman. . Upon the division
which took place in the committee,
I voted in favor of the motion to
strike out four and insert five. In
doing so I did not at all intend to
commit myself to vote for five ju-
dicial districts. But it seemed to me,
at the time, to give those who favored
the five, an opportunity to propose
their divisions.
I give great consideration to the
views which have been presented by
the gentleman from Lincoln, and
others who have advocated the ne-
cessity of five judicial districts. In
looking over the territory comprising
the present third judicial district,
we find it to be a country of great
extent. It is now some 300 miles up
,50
STATE JUDICIAL DISTRICTS
Wednesday]
WAKELEY
[July 26
and down the Platte river, and 140 or
150 miles by the traveled road up
and down the Missouri river, and
even by attaching Hall, Buffalo, Daw-
son and Lincoln to a Cass and Otoe
district, as proposed by the judiciary
committee, you still leave, as consti-
tuting one district, a county almost
200 miles east and west, in an air
line fully 200 miles; fully 200 miles
by the traveled route, over 100 miles
north and south in an air line, and
more than that by the traveled route.
So that that single district, as propos-
ed to be constituted by the report of
the judiciary committee, leaves an
area of more than 20,000 square
miles; larger than many of the old
populated states of the union.
Now, sir, I see clearly that is only
a question of time when that district
must be divided. The only question,
in my mind, has been this; and I have
so stated it to gentlemen in private
conversation, that I think it ought
to be divided. But, at the same time
I think it important to keep in view
the consideration pressed with so
much force from the other side,
that we ought not to load down this
constitution, when submitted to the
people, a large array of offices with
salaries. And I do not know but that
consideration alone will decide me to
vote for the four districts. But I
thought it was right that gentlemen
from this large district should be
heard, and allowed to propose their
division. I do not see any necessity
of considering this matter. I wish
the gentlemen who proposed to di-
vide the state into five districts would
do it now, and then vote on the ques-
tion. With reference to the divisi-
on of the state into districts, I think
many gentlemen who have voted for
the five districts have different meth-
ods of division in their minds. I
think some favor a division by a
north and south line, others by an
east and west. I want to know what
it is, and when presented I will ar-
rive at the best conclusion I can as to
whether we make that particular di-
vision or adhere to four districts.
Now, supposing the division into
four districts is to be retained, I
think, with my colleague, Mr. Wool-
worth, that the division reported by '
the committee on judiciary is not the
best that could be made. I think it
would be more equal division of busi-
ness, of judicial labor and territory,
if a district was constituted running
from Douglas and Sarpy, running
up the Platte river, taking in sever-
al counties; or running up the Mis-
souri river as far as Dakota county.
But I have reason to believe that this
would not be accepted by gentlemen
wishing a division in other counties.
Of course I have no disposition to
force our own county upon any other
county. But I think that would be
more equal than the one proposed by
the committee. So far as my prac-
tice in the county of Douglas is
concerned it is a matter of in-
difference with me, or whether
I should have to practice in other
counties, as to whether those coun-
ties are in the same district or not.
Hence I would be in favor of hearing
what gentlemen have to say. I am
opposed to hurrying this. I think
gentlemen who are in favor of five
districts may as well submit their
ideas now as ever.
STATE JUDICIAL DISTRICTS
51
Wednesday]
STRICKLAND— LAKE— PHILPOTT
[July 26
Mr. STRICKLAND. I think this
proposition to defer ought to carry,
for this reason. The committee have
taken a long time to arrange these
<iOunties into four districts; and they
could rearrange them much better
and in less time. Let these four
obtain and then make a fifth. I am
in favor of the motion to re-com-
mit.'
The CHAIRMAN. There is a mo-
tion to defer the consideration of the
formation of judicial districts.
Mr. STRICKLAND. I would make
an amendment to the amendment
that when we arise we report pro-
gress and ask the convention to — -
Mr. LAKE. If any benefit can be
derived from that course of proce-
dure I have no objection. But it
seems to me the committee is bound
by its vote on the question, having
decided to have five districts, and
unless some change is made in con-
vention, after the rising of the com-
mittee-
Mr. KIRKPATRICK. Mr. Chair-
man. This discussion has taken a
very wide range. The committee of
the whole has voted to sustain the
.amendment of five districts.
The CHAIRMAN. The question is
upon referring the consideration of
this question of re-districting to the
•committee with the amendments of-
fered.
The motion was agreed to.
Mr. PHILPOTT. Mr. Chairman,
"intending to make a motion, I pre-
cede it with a few remarks. I am one
of those who believe there should be
^ judicial district in the western part
of the state. I don't yet understand
whether we mean to divide the state
into four districts so that the western
part of the state can be accomodated.
I now move to reconsider the vote
making the change from 4 districts
to 5. I voted in the affirmative. I
think it is now the sense of the com-
mittee that we have four districts
instead of five.
Mr. SPRAGUE. Mr. Chairman. It
has been decided here that a motion
to reconsider in committee is out of
order.
I Mr. ROBINSON. Mr. Chairman.
i I move that the committee rise, re-
port progress and ask leave to sit
again.
The committee divided and the mo-
tion was not agreed to.
The Chairman read the next sec-
tion, as follows:
Sec. 11. Provision may be made
J by law for the increase of the number
of judicial districts whenever two-
thirds of the members of each house
of the legislature shall concur there-
in. Such districts shall be formed
of compact territory, bounded by
county lines: and such increase shall
not vacate the office of any judge.
Mr. THOMAS. Mr. Chairman. I
desire to offer a section which may
, come in between the two sections last
j read.
! "Judges of the district court may
I hold court for each other, and shall
1 do so when required by law."
The section was adopted.
j Mr. WAKELEY. Mr. Chairman.
I desire to have added to section 11,
j after the word "increase" in the third
line, the words "or any change in the
; boundaries of the district."
52
SALARY OF SUPREME COURT
Wednesday]
BOYD— LAKE
[July 26-
Amendment agreed to by common
consent.
The Chairman read the next sec-
tion, as follows:
Sec. 12. The judges of the su-
preme courts shall each receive a
salary of three thousand dollars per
annum payable quarterly until other-
wise provided by law and after said
salaries shall be fixed by law they
shall not be diminished during the
term for which said judge shall be
respectively elected.
Mr. BOYD. Mr. Chairman. I
desire to amend by inserting after
the word "supreme" in the first line,
the words "court shall each receive
a salary of $4,000," and after the
word "and" in the same line, the
words, "the judges of the."
Mr. LAKE. Mr. Chairman. I
hope the amendment of my colleague
will not prevail. I am perfectly satis-
fied that the judges of the supreme
court ought not receive a larger sala-
ry than the judges of the district
courts. I know that in may states
they do but in this state the duties
devolved upon the judg'es of the su-
preme court, will be far less than the
duties devolved upon the judges of
the district court. Indeed, if a dis-
tinction were made, substantial jus-
tice would require, in my own opinion
that the district judges should re-
ceive the most pay. The amount of
business in the supreme court for a
number of years will be compara-
tively small. The judges cannot be
occupied more than half of their time
not to exceed that; while the judges
of the district court three of them,
would be employed much more than
one-half of their time. I can see no
justice in giving to the judges of the
supreme court any larger pay than
we provide for the judges of the dis-
trict courts. The latter will have to
travel about over the state and be
put to expense in a thousand ways
that the supreme judges are not. I
am opposed to the first part of the
amendment, that proposes to increase
the salaries to four thousand dollars.
I do not believe in increasing any sal-
ary to three thousand dollars. I be-
lieve that the salary of the governor
in the committee of the whole was
placed at four thousand but I am not
in favor of continuing that wrong
to other officers, a wrong to the peo-
ple of this state. The condition of
our state is such that the people can-
not afford to pay salaries higher than
what we find in other states. The
government which we propose to cre-
ate by this constitution will be bur-
densome enough if we keep the sal-
aries within reasonable bounds.
Why the necessity of increasing the
salaries from what has been paid
heretofore up to four thousand?
doubling them. I have heard it said
it is to make the officers honest. By
holding out a money temptation that
would satisfy the greed of dishonest
men and make them what they would
not otherwise be. Now, it may be
that this thing can be done, but I
never have heard of a man's being
made honest in that way. It may be
that the plan would be feasible, but I
do not believe that the state would
gain any benefit whatever by paying
exhorbitant salaries. I shall vote
against the amendment. - It will be
borne in mind that we are creating
several new officers, at least a much
larger number than we had under the
old constitution, and the expense of
SALARY OF SUPREME COURT
53
Wednesday]
LAKE
[July 26
the state will be trebled and quadru-
pled. If we go on in the creating of
offices and the increasing of salaries
I can predict what the result will be
I believe, I do not believe the tax
payers of this state will submit to
the imposition. You may have a con-
stitution on paper, but when you go
before the people and ask them to
adopt it, it will meet with an em-
phatic no. And I, sir, as one of the
tax paj^ers of the state enter my pro-
test against this extravagant form of
government.
You will find, Mr. Chairman, that
with three thousand dollars salary
j'ou will have the same candidates
for office, and the offices filled by
the same persons as if the salaries
were otherwise. I am not in favor
of placing the salaries so low as to
exclude any one from office who is
fit for it, nor in favor of placing it
so high that it will induce persons
to leave their business to aspire to it
on account of the pay. It should not
be such as to induce men to scramble
after the salary of the office. Sup-
pose Mr. Chairman that the salary
of the governor was raised to $6,000"
or $7,000 and that of the judges the
same: there are men within this state
who make more than that in their
vocation, so that if you fix upon any
sum that you may it would not pay
all persons who might be called upon
to fill such offices, and if you should
fix it below that I do not believe it
would exclude any one of those per-
sons from any office within the gift
of the state. Let us fix the salaries
so that they will be reasonable, so
that it will enable the person hold-
ing the office to support himself, not
in extravagance, but reasonably well,
and with such salaries you will com-
mand the best men of the state.
Who ever heard of any one refusing
to be a candidate within the last four
years because the salary was too
small? Did you hear of any person
refusing to become a candidate to
this convention because three dol-
lars a day was not enough to pay
them for being absent from their
families and business? I have lieard
gentlemen say that if we had had
sufficient salaries for certain officers
we would have saved thousands of
dollars. Can it be said that the plun-
dering referred to has been done for
support? If what is said is true they
ought to have been satisfied with
much less, for in no case could we
have made the salaries equal the
amount that has been stolen. If we
elect an honest man he will not be
rendered dishonest merely for the
reason that the salary of the office
is insufficient to support him. Not
at all. If he knows before he enters
upon the duties of the office, and
he must know it, that he cannot af-
ford to hold the office in consequence
of the small pay offered him, he will
refuse to become a candidate, and as
I before said, such a case will not
occur if we judge from the past, be-
cause it has not occurred. If a man
is dishonest he will not be satisfied
with $4,000 a year, if he was in-
clined to steal he will do it though
you m?.ke his salary $10,000 a year
for the greed of a thief is never sat-
isfied. If the gentlemen will take the
pains to figure up and ascertain
what the aggregate amount of sala-
ries will be under this constitution
54
SALARY OF SUPKEME COURT
Wednesday]
LAKE— MANDERSON-MAXWELL
[July 26
as it has been reported by the seve-
ral committees who have been charg-
ed with the different articles, they
will see that there is danger o foist-
ing upon the people such a load that
they will groan under it for years to
come, that it will be next to impos-
sible to carry. I am one of those
who believe that we ought as mem-
bers of the convention, to consider,
occasionally at least, the taxpayers
of the state. We seem thus far Mr.
Chairman, to look only to the wants
and emoluments that would accrue
to the office holders without consid-
ering for one moment where the pay
is to come from. Why, sir, it is well
know that $1,000 at the present time
is worth more than $1,500 or $2,-
000 was three or four years ago, and
now it is proposed to raise the sala-
ries of judges from $2,000 to $3,000,
that is an increase of one-third, so
that while the actual intrinsic value
of money is increasing my colleague
proposes to increase the salaries at
least one-third, I should say the com-
mittee proposes to increase the nomi-
nal value of the salaries at least one-
third, while my colleague proposes
simply to double them up. I am op-
posed to this increase of salaries.
Mr. MANDERSON. Mr. Chairman.
The argument of the gentleman from
Douglas (Mr. Lake) is so convincing
to my mind that I wish to amend the
motion of the gentleman from Doug-
las (Mr. Boyd) by striking out ',$4,-
000" and inserting "$5 000" the sal-
ary of the supreme judge, and by
striking out "$3,000" and inserting
"$4,000," the salary of district
judges.
Mr. MAXWELL. Mr. Chairman.
I think the great danger of this con-
stitution we are proposing to form is
the high salaries proposed to be
paid to the different officers. If I
was in favor of any amendment it
would be to strike out $3,000 and in-
sert $2,500. While the people of
this state are groaning under the tax-
es they are paying, while men wha
own property are almost unable ta
pay their taxes, it is sought to saddle
the people of the state with taxes
greater than we are paying now. If
we do so, this constitution will in
my opinion, be repudiated by the
people, as much as we need a consti-
tution. While establishing high sala-
ries we must remember that salaries
never decrease. I believe if we com-
mence at $2,500 we can get just as
good judges as now. I think we can
get the very same men. The argu-
ment of the gentleman is that men
cannot afford to take such positions
at such prices. How is it with mem-
bers of this convention? There are
many of them whose time is worth
more than ten dollars per day, but
they come here for three, and some
iOf them have had quite a little strife
to get here. How is that? Not be-
cause it will pay them, but because
they have a sufficient amount of
pride to say if they are elected ta
positions they will accept of them
and discharge the duties. So with
the legislatures, I think you will find
it so in any office created. I would
commence with the governor and re-
duce the salary to a fair living price.
I am in favor of $2500.
Mr. BOYD. Mr. Chairman. My
reason for offering this amendment
is, I think we ought to have the very
SALARY OF SUPKEME COURT
55
Wednesday]
BOYD— WAKELEY
[July 26
best men in the state to fill these of-
fices, and I do not think $4,000 any
too much. Reasoning the same way
as my colleague (Mr. Lake) that you
can get just as good men for $2,500
as for $4,000, you need not pay them
any salary at all. I do not think
there is a man in this state capable
of filling the position but would make
more than that amount. I propose
to vote for $4,000.
Mr. WAKELEY. Mr. Chairman. I
desire to make a few remarks upon
this subject. I will not, at this time,
discuss the question what shall be
the relative compensations of judges
of the supreme court and judges of
the district court. I address myself
simplj' to the amendment offered by
my colleague (Mr. Boyd) to increase
the salaries of judges of the supreme
court from $3,000 to $4,00a. It hap-
pens, Mr. Chairman, that I belong to
the profession from which the judges
of the supreme court and judges of
the district courts in this state must
be taken; and it may possibly be
thought that my views as to what is
a proper compensation may be in-
, fluenced somewhat by the fact of
my being a lawyer, and having been I
connected with courts for a consider-
able time. However that may be, I
do not propose that any consideration
shall prevent me from expressing to
, this committee what I really believe;
or from giving my vote for what I
believe to be a just and fair judicial
salary. There are certain rules and
criteria which must be kept in view
in deciding what is a proper and just
compensation. My colleague (Mr.
Lake) now one of the associate jus-
tices of the supreme court, has based
his argument upon the assumption
that no matter what the salary may
be, we shall get competent men to
fill these offices that we shall have
' the same men seeking election to
these places, as we will have if the
salary is increased. If that were
I true, it would be no test of what is
I an adequate salary for judges of
I these courts. It must be borne in
[mind Mr. Chairman that judges are
taken from a class of men who must
have certain, special training and ex-
! perience to qualify them for the
place. That is not the case with the
executive and administrative offices
of the state. Judges must necessa-
rily be lawyers. The article before
us requires that a judge of the su-
preme court shall be at least thirty
years of age. It contemplates, of
course, that judges of the supreme
court and district courts will be ta-
ken from the class of experienced
lawyers.
Now, sir, to acquire that experi-
ence, and become able and capable to
fill the high office of judge of the
supreme court or circuit court, I
need not argue that a lawyer must
have had much experience and long
training and study. You cannot de-
termine what is a fair compensation
for a lawyer or a judge by precisely
the same standard as that by which
you would measure the compensation
to be paid to an intelligent or experi-
enced business man for a mere busi-
ness employment. In the first place,
it takes long years of study to pre-
pare a student of the law to enter
his profession. Then it takes many
and weary years for a lawyer to ac-
quire the necessary experienc<e and
56
SALARY OF SUPREME COURT
Wednesday!
WAKELEY
[July 26
knowledge to fit him either for the
higher walks of his profession or
for a judicial place. You must keep
all this in view when you prop9se to
fix a just compensation to be award-
ed to a judge of a high court.
Then, again, from the very nature
of the office, it is required of him who
enters upon it, of him who takes the
sacred place of a judge upon the
bench, that he dis(ard all other
pursuits and abandon all other em-
ployments; he must give his whole
time and attention to his duties, and,
by the responsibility and dignity and
decency that belongs to his station
he is excluded from all the avenues
of gain and profit which are open to
other men in the employment of the
state or out of it. Then, sir, the law-
yer we should call to a place upon
the bench must break up the busi-
ness he may have been years in se-
curing. It changes all his pursuits
in life, and dedicates him to one
great and sacred purpose of admin-
istering the laws in justice and up-
rightness, keeping himself above all
fear, favor, or suspicion. We must
take all this into account.
Then, sir, when we take a man
from the profession of the law, and
place him upon the bench; break up
his business, exclude him from all
other employment giving him only a
salary which will not support him
in independence and respectability;
and, at the termination of his ser-
vice throw him back upon some other
resources, are we doing him justice?
Are we doing right? Is it fair and
honest to measure his compensation
by solving the question whether a
proposed amount will, or will not in-
duce some man to take the oflSce?
Sir, I would not inquire solely wheth-
er we will or will not be able to get
a good and capable man to accept a
judgeship for a certain sum of money.
But, when I propose to pay the man
who shall take it a fair salary, I put
the proposition upon the broad and
equitable ground that he will earn
the money and ought to have it. The
state has the benefit of his learning,
of his experience, and of his ability,
if he is capable of filling the office
with credit the state should be
willing to pay him decently and am-
ply for it all. -
Sir, it is no answer to the argu-
ment in favor of an adequate salary
that you can get a man to fill the
office for a small one. There are
men who have pursued the practice
of law who, thanks to their energy
or to their good fortune, have accu-
mulated a competence or an inde-
pendence, and are above the neces-
sity of a professional income and to
whom the amount of a judicial sala-
ry would be of little consequence.
Is it right or just that we should
give such men, so circumstanced, an
unfair advantage over their less for-
tunate brethren at the bar by fix-
ing a small salary which forbids the
one class, but not the other, from
seeking promotion in their common
profession? Suppose we were satis-
fied that the dignity of the office is
such that men could be persuaded to
fill it without pay. There may be
found men in this state who are be-
yond the need of a private income,
or of a salary, they may be willing
to fill the judicial office without re-
gard to its emoluments. Does that
SALARY OF SUPREME COURT
57
Wednesday^
WAKELEY
[July 26
prove that there should be no sala-
ry, or a nominal salary attached to
it?
In England, members of parlia-
ment have always served without
compensation. "What has been the
consequences? Seats in parliament
have been filled by men who have
had fortunes to live upon and money
to lavish for the corruption of vo-
ters. Shall we follow that precedent
in the case of our judges? It is true
that in this country, men have filled
high judicial positions, men who
have done honor to their positions
and to their age, who have received
but low and contemptible salaries,
which it was a disgrace to the state
to offer them, and possibly, the
state of Nebraska may be situated sd
as to obtain men able to fill such po-
sitions creditably without regard to
salary. But, come back to the basis
of just compensation, and say what
men fit and capable of filling these
oifices with credit to themselves and
justice to the country who will come
up to the full measure of ability and
responsibility demanded of the place
— say what such men will honestly
earn and pay them by that standard.
I know, sir, that strong appeals
are made to us not to establish an
• expensive state government. I rec-
ognize the force of that appeal. I
propose, upon this floor, to keep that
idea steadily in view. I will not vote
to create one unnecessary office. I
would not attach to any office a sala-
ry which, in my judgment, is one dol-
lar too much. And, having so acted
I propose to trust to the good sense,
and the good judgment of the peo-
:ple of this state to endorse what
we shall have done. I am not afraid
of the people. And, let me tell you
in regard to this particular office
one thing. What was it that created
in the minds of the people a sense of
the necessity of this convention? If
there was one single thing more
than an other which in the minds of
the people demanded the assembling
of this convention, it was the neces-
sity of a separate supreme court.
From one end of the state to the oth-
er; not alone among the profession,
but among all the people, there was
one universal voice that this state
had outgrown her judicial system.
And everywhere, whenever I heard
this subject mentioned, I heard this
expression — "Give us a separate su-
preme court, and provide a salary
that will bring to that office the best
men i nthe state." And I have not
heard one man, lawyer or layman,
express a different sentiment, and I
'am not afraid to go before the people
of this state and ask "Are you will-
ing to give a man who is to sit in
the judgment seat, on whose experi-
ence, ability and integrity not only
your property and your character de-
pends, but -possibly your liberty or
your life?" I tell you there will be a
response from the people that you
have done well and justly in provid-
ing a liberal salary.
Mr. Chairman. I do not care to
trouble the committee with any fur-
ther argument upon this subject. I
have expressed my sentiments and
with that I am content. I feel no
special interest in the decision mere-
ly because I am a member of the le-
gal profession, and still I know not
but it may be possible that, from
58
SALARY OF SUPREME COURT
Wednesday]
WAKELEY— WOOL WORTH
[July 26
my long connection with courts I
have imbibed a higher idea of what
is due to the position, and to the ser-
vice of an able, upright and pure
judge, than I would have if I had
been engaged in other employments
which did not bring me much in con-
tact with courts and judges. I have,
sir, an abiding reverence for an hon-
est, faithful, upright judiciary. I
have seen in other states and in this
the most vital public interests de-
pended upon the unswerving integri-
ty, the independence and the unsul-
lied purity of the judges of the land.
Over and again they have stood as a
solid bulwark against the tempora-
ry behest of the people. They have
stood up strong and resolutely
against the aggressions of power, as
well as against popular passion and
prejudices. And, over and again
they have been the only refuge of
the citizen from the usurpations of
authority. Almost without excep-
tion they have been independent and
pure. And, just as far as it is pos-
sible to do it, or aid in doing it, by
legislation, they should be lifted
above all temptation to swerve from
duty, and above all pecuniary depen-
dence.
It has happened to me as a law-
yer to appear often, and through many
years, before competent and upright
judges. For them and for their po-
sition I have a great and habitual re-
spect. And whenever as a citizen, I
have expressed an opinion, or as a
legislator, have voted upon the ques-
tion of judicial salaries, I have uni-
formly supported the policy and the
justice of paying judges liberally for
their time and their services.
The CHAIRMAN. The question i&
upon the amendnient offered by the
gentleman from Douglas (Mr. Man-
derson).
Committee Rise.
Mr. MANDERSON. Mr. Chair-
man. I move the committee rise, re-
port progress and ask leave to sit
again.
The motion was agreed to.
Mr. McCANN. Mr. President. The-
committee of the whole have had un-
der consideration the report of the-
judiciary committee and have direct-
ed me to report progress and ask
leave to sit again.
Adjournment.
Mr. LEY. Mr. President. I move-
we adjourn until this evening at 8-
o'clock.
Mr. WOOLWORTH. Mr. Presi-
dent. It may be worth while, in view
of the storm which is rising to con-
sider whether the question to be dis-
cussed this evening is of sufficient
importance for us to come together
again this evening. I am willing if
the members will only come together.
Leave of Absence.
Mr. SPRAGUE. Mr. President. I
ask leave of absence until tomorrow-
night.
Leave granted. _^
Adjournment^ — Again.
Mr. THOMAS. Mr. President. It
will be almost impossible to get a
full attendance this evening and I
move to adjourn until tomorrow-
morning at 9 o'clock.
LEGISLATIVE DEPARTMENT
59
Thursday'
MYERS
[July 27
The motion was agreed to, so the
convention (at six o'clock and twen-
ty-five minutes) adjourned.
(TWENTY-EIGHTH DAY.
Thursday, July 27, 1871.
The convention met at nine o'clock
and was called to order by the presi-
dent.
Prayer.
Prayer was offered by the chaplain
as follows:
O, Thou who art the way, the
truth, and the Life, Bestow upon us
Thy peace. Leave us not alone in
this world of danger. Enable us to
do Thy will on every field where
Truth does battle for God and man.
Forgive us our offences, and keep us
unto life everlasting. Amen.
Reading of the Journal.
The journal of the last day was
read and approved.
Reports of Committees.
Mr. MYERS. Mr. President, I ask
to make a report from the legislative
committee — a bill which they have
fixed, and I ask that 150 copies be
printed.
The following is a copy of the re-
port:
Sec. 1. The legislative authority
shall be vested in a Senate and House
of representatives.
Sec. 2. The enacting clause of all
bills shall be: "Be it enacted by
the Legislature of the State of Ne-
braska," and no law shall be enacted
except by bill. No bill shall be pass-
ed unless by the assent of a majority
of all the members elected to each
branch of the legislature, and the
question upon the final passage shall
be taken immediately upon its last
reading, and the yeas and the nays
entered upon the journal. No bill
shall embrace more than one subject,
and that shall be expressed clearly
in the title.
Sec. 3. The legislature shall pro-
vide by law for an enumeration of
the inhabitants of the state in the
year one thousand eight hundred
and seventj--five, and at the end of
every ten years thereafter; and at
their first annual session after
such enumeration, and also after
each enumeration made by the
authority of the United States,
the legislature shall apportion to
the number of inhabitants, exclud-
ing Indians not taxed, and soldiers
and officers of the United States army
and navy.
Sec. 4. The first house of repre-
sentatives under this constitution
shall consist of seventy-five members,
who shall be chosen for one year.
The first senate shall consist of twen-
ty-five members, who shall be chos-
en for two years. After the first
election, the number of senators and
members of the house of representa-
tives shall be regulated by law, but
shall never exceed one hundred rep-
resentatives and thirty-three sena-
tors.
Cec. 5. The members of the legis-
lature shall receive for their services,
at the first session after the adoption
of this constitution, a sum not exceed-
ing four dollars per day from the
commencement of the session, but
such sum shall not exceed in the ag-
gregate two hundred and forty dol-
lars lor per diem allowance, except
in proceedings for impeachment.
They shall also receive one dollar for
every ten miles they shall travel in
going to and returning from the
state capitol on the most usual route.
The speaker of the house of repre-
sentatives shall, in virtue of his office
receive an additional compensation
equal to one-third of his per diem
allowance.
60
LEGISLATIVE ARTICLE
Thursday]
[July 27
Sec. G. The legislature shall meet
in the capitol on the first Tuesday
of January in every year, unless soon-
er convened by the governor.
Sec. 7. Each house shall choose
its own officers not otherwise provid-
ed for by this constitution. Each
house shall judge of the qualifica-
tions of its members. Contested elec-
tions shall be determined by a com-
mittee, to be selected, formed and
regulated in such manner as shall
be directed by law. A majority of
each house shall constitute a quo-
rum to do business, but a less num-
"ber may adjourn from day to day,
and may be authorized by law to
compel the attendance of absent
members in such manner and under
such penalties as may be provided.
Sec. 8. No person shall be a sena-
tor who shall not have attained the
age of twenty-five years, and have
been an inhabitant of the state three
years next before his election, and
the last year thereof an inhabitant of
the district for which he shall be
chosen, unless he shall have been
absent on the public business of the
United States or of the state; and no
person elected as aforesaid shall hold
office after he shall have removed
from such district.
Sec. 9. No person being a mem-
ber of congress, or holding any judi-
cial or military office under the Unit-
ed States, shall hold a seat in the
legislature.
And if any person shall, after his
election as a member of the legisla-
ture, be elected to congress, or ap-
pointed to any office, civil or mili-
tary, under the government of the
United States, his acceptance thereo-
of shall vacate his seat.
Sec. 10. No person who shall
be convicted of the embezzlement or
defalcation of the public funds of
-this state shall ever be eligible to any
office of honor, trust or profit under,
this state; nor shall any person con-
victed of felony exercise the right
of suffrage or be eligible to office,
unless he shall have been restored to
civil rights.
Sec. 11. The legislature shall de-
termine what persons shall consti-
tute the militia of the state, and may
provide for organizing and disciplin-
ing the same in such manner as shall
be prescribed by law.
Sec. 12. The legislature may de-
clare the cases in which any office
shall be deemed vacant, and also the
manner of filling the vacancy, where
no provision is made for that pur-
pose in this constitution.
Sec. 13. The legislature shall
never grant any extra compensation
to any public officer, agent, servant,
or contractor, after the services shall
have been rendered or the contract
entered into; nor shall the compensa-
tion of any public officer be increas-
ed or diminished during his term of
office.
Sec. 14. The house of representa-
tives shall have the sole power of
impeachment, but a majority of all
members elected must concur there-
in.
All impeachments shall be tried by
the senate, and. when sitting for
that purpose, the senators shall be
upon oath or afflrm£).tion to do jus-
tice according to law and evidence.
When the governor of the state
is tried, the chief justice shall pre-
side.
No person shall be convicted with-
out the concurrence of two-thirds of
the senators elected; but judgment
in cases of impeachment shall not
extend further than to removal from
office and disqualification to hold and
enjoy any office of honor, profit or
trust under this state; but the im-
peached shall nevertheless be liable
to indictment and punishment ac-
cording to law.
No officer shall exercise his office
after he shall have been impeached
until he shall have been acquitted.
Sec. 15. The governor, secretary
of state, auditor, treasurer, judges
of the supreme and district courts,
and all other elective state officers,
shall be liable to impeachment for
any misdemeanor in office.
I
LEGISLATIVE ARTICLE
61
Thursday]
[July 27
Sec. IG. Members of the legisla-
ture, and all other officers, elective
and judicial, except such inferior
officers as may be by law exempted,
shall, before they enter on the duties
of their respective offices, take and
subscribe the following oath or af-
firmation.
"I do solemnly swear (or affirm,
as the case may be,) that I will sup-
port the constitution of the United
States, and the constitution of the
state of Nebraska, and that I will
faithfully discharge the duties of the
office of with fidelity, and accord-
ing to the best of my ability."
Sec. 17. Every bill which shall
have passed both houses shall be pre-
sented to the governor. If he ap-
prove, he shall sign it; but if he shall
not approve, he shall return it, with
his objections, to the house in which
it shall have originated, who shall
enter the objection at large upon
their journal, and proceed to re-con-
sider it. If, after such re-considera-
tion, two-thirds of that house shall
agree to pass the bill, it shall be sent,
with the objections to the other
house, by which likewise it shall be
re-considered, and if approved by
two-thirds of that house, it shall be-
come a law; but in such cases the
votes of both houses shall be deter-
mined by yeas and nays, and the
names of the persons voting for or
against the bill shall be entered on
the journals of each house respect-
ively. If any bill shall not be return-
ed by the governor within five days'
(Sunday excepted) after it shall have
been presented to him, it shall be a
law in like manner as if he had sign-
ed it, unless the legislature, by ad-
journment, prevented its return, in
which case it shall be a law unless
sent back within three days after
their next meeting.
Sec. 18. Every order, resolution
or vote to which the concurrence of
both houses may be necessary (ex-
cept on a question of adjournment)
ii shall be presented to the governor,
and before it shall take effect be ap-
proved by him. or, being disapproved,
shall be re-passed by two-thirds of
both houses, according to the rules
and limitations prescribed in case
of a bill.
Sec. 19. Any bill may originate in
either house of the legislature, ex-
cept bills appropriating money,
which shall originate only in the
house of representatives; and all bills
passed by one may be amended by
the other.
Sec. 20. The legislature shall
never sell or dispose of the salt
springs, or saline lands connected
therewith, belonging to this state,
but may authorize the purchase of
contiguous lands thereto by authori-
ty of law, as may be necessary for the
convenience and interest of the state.
Sec. 21. Each house may deter-
mine the rules of its proceedings,
punish its members for disorderly
behavior, and with the concurrence
of two-thirds expel a member but
not a second time for the same cause',
and shall have all other powers nec-
essary for a branch of the legislature
of a. free state.
Sec. 22. Each house shall keep a
journal of its proceedings, and pub-
lish them, (except such parts as may
require secrecy) and the yeas and
nays of the members on any question
shall, at the desire of any two of
them, be entered on the journal.
All votes in either house shall be
"viva voce."
The doors of each house, and com-
mittees of the whole, shall be open,
unless when the business shall be
such' as ought to be kept secret.
Neither house shall, without the
consent of the other, adjourn for
more than three days.
Sec. 2 3. For any speech or debate
in either house of the legislature the
members shall not be questioned in
any other place.
Sec. 24. The legislature shall pro-
vide by law that all stationery re-
quired for the use of the state, and
all nrinting authorized and required
02
LEGISLATIVE ARTICLE
Thursday)
[July 27
by them, to be done for the use of
the state, shall be let by contract to
the lowest bidder; but the legislature
may establish a maximum price.
No member of the legislature, or
other state officer, shall be Interested,
either directly or indirectly, in any
such contract.
Sec. 2 5. The mode of organiz-
ing the house of representatives at
the commencement of each regular
session, shall be prescribed by law.
Sec. 2G. Each bill and concurrent
resolution shall be read at large in
three different days in each house,
and the bill, and all amendments
thereto, shall be printed before the
vote is taken on the final passage.
The presiding officer of each house
shall sign, in the presence of the
house over which he presides, while
the same is in session and capable of
transacting business, all bills and
concurrent resolutions passed by the
legislature.
Sec. 2 7. The legislature shall
have no power to release or relin-
quish, in whole or in part, the in-
debtedness, liability or obligation of
any corporation or individual to this
state, or to any municipal corpora-
tion therein.
Sec. 28. Any person holding of-
fice under or by virtue of laws of this
state who, except in payment of his
salary, fees or perquisites, receives,
or consents to receive, directly or in-
directly, any thing whatever of value,
or of personal advantage, or the pro-
mise thereof, for performing or omit-
ting to perform, any official act, or
with the express or implied under-
standing that his official action or in-
action is to be in some manner or de-
gree influenced thereby, shall be
deemed guilty of felony, and on con-
viction shall be punished as the leg-
islature may provide.
Sec. 29. Any person or persons of-
fering a br?':e, if the same shall be
accepted, shall not be liable to civil
or criminal prosecution therefor.
But any person who offers or
promises such a bribe, if the same
shall be rejected by the officer to
whom it is tendered, shall be deemed
guilty of an attempt to bribe, which
is hereby declared to be a felony, and
on conviction shall be punished as
provided by this article.
Sec. 30. Any person charged with
receiving a bribe, or with offering or
promising a bribe that is rejected,
shall be permitted to testify in his
own behalf in any civil or criminal
prosecution therefor.
Sec. 31. Members of the legisla-
ture shall, in all cases except treason,
felony or breach of the peace, be
privileged from arrest, nor shall they
be subject to any civil process dur-
ing the session of the legislature,
nor for fifteen days next before the
commencement and after the termi-
nation of each session.
Sec. 32. The* legislature shall
not have power to enact laws annul-
ling the contract of any marriage In
any case where by law the courts
of the state are or hereafter may be
empowered to decree a divorce.
Sec. 33. When vacancies occur in
either house, the president of the sen-
ate or speaker of the house in which
the vacancy may occur, shall issue
writs of election to fill such vacan-
cies.
Sec. 34. All bills for raising reve-
nue shall originate in the house of
representatives, but the senate may
propose amendments, as in other
bills. No money shall be drawn
from the treasury but in conse-
quence of appropriations made by
law.
Sec. 35. The legislature shall pro-
vide by law for the suppression of
vice and immorality in this state, and
shall never authorize any games of
chance, lottery or gift enterprise, un-
der any pretence of or for anp pur-
pose whatever.
Sec. 36. The legislature shall
make no appropriations of money out
of the treasury in any private law.
Bills making appropriations for
LEGISLATIVE ARTICLE
63
Thursday]
[July 27
the pay of members and officers of
the legislature, and for the salaries
of the ofacers of the government shall
contain no provision on any other
subject.
The salary of any officer shall not
be increased for any term for which
he may have been appointed or
■elected.
Sec. 3 7. No money shall be drawn
from the treasury except in pursu-
ance of an appropriation made by
law, and on the presentation of a
warrant issued by the auditor there-
on: and no money shall be diverted
from any appropriation made for any
purpose, or taken from any fund
whatever, either by joint or separate
resolution. The auditor shall, with-
in sixty days after the adjournment
of each session of the legislature,
prepare and publish a full statement
of all money expended at such sess-
ion, , specifying the amount of each
item, and to whom and for what
paid.
Sec. 3S. Each legislature shall
provide for all the appropriations
necessary for the ordinary and con-
tingent expenses of the government
until the expiration of the first fis-
cal quarter after adjournment of the
next regular session, the aggregate
amount of which shall not be increas-
ed without a vote of two-thirds of
the members elected to each house,
nor exceed the amount of revenue
authorized by law to be raised in
such time: and all appropriations,
general and special, requiring money
to be paid out of the state treasury
from the funds belonging to the state,
shall end with such fiscal quarter;
Provided, That the state may, to
meet casual deficits or failures in
revenues, contract debts never to ex-
ceed in the aggregate $250,000; and
monies thus borrowed shall be appli-
ed to the purpose for which they
were obtained, or to pay the debt
thus created, and to no other pur-
pose; and no other debt except for
the purpose of repelling invasion,
suppressing insurrection or defend-
ing the state in war, (for payment
of which the faith of the state shall
be pledged) shall be contracted un-
less the law authorizing the same
shall, at a general election, have
been submitted to the people, and
have received a majority of the votes
cast for members of the legislature
at such election. The legislature
shall provide for the publication of
said law for three months, at least,
before the vote of the people shall
be taken upon the same: and provis-
ion shp.ll be made at the time for
the payment of the interest annually
as it shall accrue, by a tax levied
for the purpose, or from other sour-
ces of revenue, which law providing
for the payment of such interest by
such tax shall be irrepealable until
such debt is paid. And provided,
further that the law levying the tax
shall be submitted to the people with
the law authorizing the debt to be
contracted.
Sec. 3 9. The legislature shall
never grant or authorize extra com-
pensation, fee or allowance to any
public officer, agent, servant or con-
tractor, after service has been ren-
dered or contract made, nor autho-
rize the payment of any claim or
part thereof, hereafter created
against the state, under any agree-
ment or contract made without ex-
press authority of law; and all such
unauthorized agreements or con-
tracts shall be null and void. Pro-
vided, The legislature may make
appropriations for expenditures in-
curred in suppressing insurrection or
repelling invasion.
Sec. 40. The state shall never pay.
assume or become responsible for
the debts or liabilities of, or in any
manner give, loan or extend its cred-
it to, or in aid of, any public or oth-
er corporation, association or indi-
vidual.
MISCELLANEOUS.
Sec. 41. The legislature shall pro-
vide by law thp.t the fuel, stationery
and printing paper furnished for the
64
REPORT TREASURER STATE UNIVERSITY
Thursday]
McCANN
[July 27
use of the state, the copying, print-
ing, binding and distributing the
laws and journals, and all other
printing ordered by the legislature,
shall be let by contract to the lowest
responsible bidder; but the legisla-
ture shall fix a maximum price; and
no member thereof, or other officer
of the state, shall be interested, di-
rectly or indirectly, in such contract.
But all such contracts shall be sub-
ject to the apDroval of the governor,
and if he disapproves of the same
there shall be a re-letting of the con-
tract in such manner as shall be pre-
scribed by law.
Sec. 42. The state of Nebraska
shall never be made defendant in any
court of law or equity.
Sec. 4 3. No law shall be passed
which shall operate to extend the
term of any public officer after his
election or appointment.
Sec. 44. It shall be the duty of
the legislature to pass such laws as
may be necessary for the protection
of operative miners, by providing for
ventilation when the same may be
required, and the construction of es-
capements, shafts, or such other ap-
pliances as may secure safety in all
coal mines, and to provide for the
enforcement of said laws by such
penalties and punishments as may
be deemed proper.
Sec. 45. The legislature shall pro-
vide for establishing and opening
roads and cartways connected with
a public road for private and pub-
lic use.
Sec. 4 6. The legislature may pass
laws permitting the owners or occu-
pants of lands to construct drains
and ditches for agricultural and san-
itary purposes across the lands of
others.
Sec. 47. The legislature shall pass
liberal homestead and exemption
laws.
The report was referred to the
committee of the whole.
Communications.
Mr. McCANN. Mr. President. I
have s. communication I wish to
present. I beg leave to present the
report of the treasurer of the state
university, furnished in accordance
with a resolution of this body, and I
ask for the unanimous consent of
the convention to have fifty or a
hundred copies printed. It is noth-
ing but a financial statement, is very
short and the expense of printing
will be small, and I wish it to go
before every member of the conven-
tion, and it cannot do so in its pres-
ent shape.
The following is the report:
OFFICE OF TREASURER STATE UNIVERSITY,
Lincoln, July 2!st, 1871
To the Honorable, the Constitutional Convention of the State of Nebraska:
(.lentlemen: — In accordance with a resolution adopted by your
Honorable Body, July 20th, 1871, I have the honor herewith to submit a full
and complete report of all moneys received and disbursed by me as Treas-
urer of Nebraska State University.
I have the honor to be, with great respect.
Your obedient servant,
JOHN L, McCONNELL,
Treasurer State University."
REPORT TREASURER STATE UNIVERSITY 65
Thursday] [July 27
RECEIPTS
May 8th, 1871, from H. A. Koenig. State Treasurer $28,263 60
July 4th. '• " " - ' " '< .... 10,937 17
July 10th, " " " " " " .... 4,500 00
Total Amount of Receipts $43,700 77
DISBURSEMENTS
SALARIES OP OFFICERS
Paid A. K. Henton, Chancellor $600 00
" H. T. Davis, Secretary, .SOO 00
■' J. L. McConnell, Treaourer, 150 00
Peter Kron, Janitor, 212 41
' ' Fred Rlieinhart, Guard, 48 42
$1,310 8'S
STATIONERY
For use , $73 90
Fencing University Grounds $541 15
TRAVELING EXPENSES
Professor H. E. Hitchcock, $50 00
O. C. Dake 20 00
$70 00
ON ACCOUNT OF BUILDINGS
Paid for Privies $103 28
" on U niversity Building 406 60
" Expenses Examining University 50 00
$559 88
COAL
Coal for use $641 69
Advertising for State University $75 00
Printing " " " 54 60
100 copies Nebraska Statesman 4 00
Coal Oil 1 25
A. M. Davis fur Merchandise 9 48
GENERAL EXPENSES
Wood, Coal Hod, Shovel and Chairs $14 50
Brush, Mop and Hoe 6 60
Step Ladder and Brush 6 00
$27 10
MILEAGE FOR REGENTS
C. S. Chase— January 10th, 1871— For Mileage $26 80
February 8th, " *' 26 80
March 2nd, " " 28 80
April 5th " " 26 80
June 14th, ' " 26 80
June 23rd, " " 26 80
$100 80
5
66 REPORT TREASURER STATE UNIVERSITY
Thursday] f J"'^ '^"^
R. W. Fornas— January 10th, 1871— For Mileage $28 00
February 8th " " 28 00
March 2d, " " ; 28 00
June 14th " " 28 00
$112 00
A. B. Fuller— February 8th, 1871— For Mileage $10 40
March 2d. '• " 10 40
June 14th, " " 10 ^0
June 23d, " " 10 40
$41 00
Uriah Bruner— January 10th, 1871-- For Mileage $30 40
February 8th, '^ " 36 40
March 2d, " " 30 40
April 5th, " " 36 40
June 14th, " " o6 40
$182
W. G. Olinger— January 10th, 1871— For Mileage $44 40
February 8th, " " 44 40
March 2d, " " 44 40
June 14lh, " " 44 40
$177 60
T.H. Longley— January 10th, 187i—For Mileage $37 20
February 8th, " " 37 20
March 2d, " " 37 20
April 5th " " 37 20
June 14th, " " 37 20
$186 00
J.B. Maxfield— January 10th, 187i-For Mileage \ $22 00
February 8th, " " 22 00
March 2d, " " 22 00
April 5th, " " 22 00
June 14th, " " 22 00
$110 00
D. J. McCann— June 14th, 1871— For Mileage <. $22 00
David R. Dungan— January lOih, 1871— For Mileage $28 00
February 8th, •' " 28 00
March 2d. " " 28 00
April 5th, " " 28 00
June 14tk, " " 28 00
$140 00
Total amount paid for Mileage ..$1,132 00
Total Amount of Receipts -. .$43,700 77
" "• Disbursements 4.500 78
$39,199 99
February 10th, 1871, Transferred to General
Fund 16,000 00
Cash Balance ou hand .$23,199 99
SALARIES OF JUDGES
67
Thursday]
BALLARD— GRAY
[July 27
Committee of the Whole.
Mr. BALLARD. Mr. President. I
move that the convention now go in-
to the committee of the whole for the
further consideration of the judiciary
article.
The motion was agreed to, so the
convention went into the committee
of the whole — Mr. McCann in the
chair — for the further consideration
of the judiciary article.
The CHAIRMAN. Gentlemen of
the committee, section thirteen is
under consideration. The question is
upon the motion of the gentleman
from Douglas (Mr. Boyd), who
moves to insert after the word
"court" shall each receive a salary
of $4,000, and insert before the word
"district" the words "judges of the".
The question is upon the amendment.
Mr. GRAY. Mr. Chairman. I
have a word which I desire to say
upon the question of these salaries. I
am opposed to the amendment offer-
ed by the gentleman from Douglas,
(Mr. Boyd) simply for this reason.
The amendment proposes to make a
distinction between the judges of the
supreme and district courts. The
amendment proposes to give the
judges of the supreme court a sala-
ry of $4,000 and the judges of the
district courts but $3,000. I am not
very strenuous — my mind is hardly
made up as to what the salaries of
the judges should be. It is proper
for me to say, however, that I desire
to see these officers paid well for
their services. It is a question in
my mind whether $4,000 is too
much. While it is urged here that
we may load down the constitution
by making these salaries too large;
whatever it may be decided upon,
whether it shall be $3,000 or $4,-
000 or any other amount. I desire to
see the amount fixed for all the
judges the same. It seems to me
that if you make a distinction,
though it be but $5, that the distinc-
tion itself will have the tendency to
make a wide distinction in the class
of ability of the judges who pre-
side upon the benches of these two
courts. For my part I believe we
need the best ability in the state for
the district courts, as well as for
the supreme court. I am satisfied
that the expenses of the judges of
the district courts will be greater
than those of the judges of the su-
preme court; their time is more ful-
ly occupied — in short, their labor is
greater, and their ability should be
of the first. The judges of the dis-
trict courts are called upon to pass
upon all questions of a general na-
ture which pass before them, gener-
ally with perhaps a moments notice,
and they must be ready to act
promptly upon these questions. While
I desire to see our best talent upon
the supreme bench, still it must be
considered that they have much
greater time for reflection and con-
sideration than the judges of the
district courts. I think it would be
unwise to place upon the benches of
the district court, lawyers less than
the best in the state. It seems to me
if you pay judges of the district
court less than the judges of the su-
preme court, those lawyers who stand
at the head of the profession in our
state will be disposed to avoid the
position of judge of the district
68
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
courts. For my part I wish to avoid
that result. I desire to see the best
talent in the state upon the bench of
the district court. So then I say,
that, whatever the salary is, I desire
to see it made uniform and the same
sum paid the judges of the district
court that is paid the judges of the
supreme court. I shall oppose hot
only this amendment, but every
amendment of that kind; but if the
gentleman from Douglas (Mr. Boyd)
will make his amendment read $4,-
000 to each of the judges, I am not
sure that I will oppose it.
Mr. WOOLWORTH. Mr. Chair-
man. I desire to say a few words
this morning in respect to this mat-
ter. The idea seems to obtain, with
some of the members of the conven-
tion, at least, that we are establishing
a government with a great many
more oflicers and a great deal more
expensive than the old state govern-
ment. Nbw, I think there is a mis-
apprehension upon that subject.
Aside from the single office of Lieu-
tenant Governor, to whom will be
paid, I suppose, two or three hundred
dollars a year, we have created no
new offices. We have a governor,
secretary of state, auditor, treasurer,
attorney general, and superintendent
of public instruction; add to these
offices the single one of land com-
missioner, and you have already as
many state officers as we propose to
establish. I desire to call the atten-
tion of the members of the com-
mittee to that matter. Let us look
farther. It may be said, "you pro-
pose to provide for larger salaries
for these officers." Well, now let us
see whether, under the government
we propose to establish, even if we
do, we are going to have a more ex-
pensive government than we already
have. I dont know, precisely, what
is paid to all the different state of-
ficers. If my recollection serves me
right, the auditor gets $2,500 now —
the same we propose to pay him un-
der the new constitution; the other
officers get somewhat less than you
propose to pay them. But see what
you save by the scheme of govern-
ment you have provided. You give
the three inspectors of the state's
prison from six to seven thousand
dollars per annum. That you propose
to wipe out. We propose to wipe out
all the expenses of the regents of
the university and several other
boards. Now, then, put the expenses
you propose to cut off to the lowest
figure, and it can't be much less than
ten thousand dollars. That sum will
make up all the extra expense arising
from the increased salaries which are
proposed. These declarations, that
we are establishing a government sO'
much beyond what we have had here-
tofore, and so expensive that the peo-
ple will be unwilling to adopt it, are
not well founded. I assume that
these offices I have mentioned are to
be cut off, from the remarks in pri-
vate I have heard made by several
members, as well as by the action
which has been taken thus far in
this committee. Now, there is anoth-
er matter to be taken into consider-
ation by this committee in connection
with this matter of economy. I say
that it is a true economy to secure the
services of 'he very best judges, al-
though you pay them twice what you
pay common men. I will illustrate'
SALARIES OF JUDGES
69
Thursdaj-]
WOOLWORTH
iJuly 27
what I have to say by a single in- [ sideration of the first case like pow-
stance taken from my own personal ers the whole second litigation would
experience. Allusion has been made j have been entirelv saved.
to the litigations between Lincoln
county and the Union Pacific railroad
company. There have been two suits.
The first suit brought was before Mr.
Justice Crounse. who held that the
railroad company was liable to tax-
ation by the county and state. Now,
sir, I beg to say that no man enter-
tains a higher opinion of the fairnesa
learning and ability of Mr. Crounse
than I do. I take this opportunity,
in passing, to refer to the man who
adorns the bench of this state. But I
say that this gentleman did not by
The point which I wish to make is
this, that it is a true economy to
place upon the bench men of the very
highest character, because then liti-
gation and the great and manifold
expenses attending them will many
times be avoided. The public will
not rest satisfied with even the most
elaborate judgments of the supreme
bench, unless that bench is filled
with the very best men. A case may
there be determined, but parties af-
terwards involved in a like controver-
sy, considering the principle of the
liis correct judgment command the case still unsettled, will renew the
assent of the railroad company and
their counsel; and they were not sat-
isfied wit<h itbecause the learning and
character of the judge was not such
as to impress the litigants with the
feeling that he was certainly right.
What was the result? The railroad
company paid the tax then particula-
controversy. On the other hand,
let men worthy of the dignity be
placed in the judgment seat, and
their opinions, as one by one they
are delivered, will be accepted as set-
tled law — not to be questioned, not
to be changed. Have a court filled
by judges who enjoy the confidence
ly in question, to besure, after a very ! of the profession and the public; who
considerable deduction made on the
part of the county, by way of com-
promise in order to avoid the delay of
an appeal. Then what did the rail-
road company do? It went into the
bring to the discharge of their high
duty abundant learning and capaci-
ty and devotion to their duty, and a
system of law will be built up, before
which parties and counsel will bow
Circuit court of the United States. It ' in homage. Put it on the question of
went there to get the opinion of Mr.
Justice Dillon, or if possible, Mr.
economy, and I say it is the greatest
economy to fill this high position
Justice Miller. It went there to get j with men of the very best ability. My
the opinion of one of the very first colleague!, Mr. Lake, who fills the
men who adorns the bench of this
land. In the opinion of one or the
other of those judges it was willing
to abide, because in their great learn-
ing and ability it had supreme con-
iidence. Now, sir, had the judge of
bench in the second judicial district
tells you the same judges will oc-
cupy their offices, the same candi-
dates will be presented to the elect-
ors for their suffrages for these po-
sitions ?.s before. I think not, sir.
the state court brought to the con- I think the men who will be present-
70
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
ed as candidates, if not those wlio
will be elected, will be men of high-
er character and fitness if the sala-
ry is four thousand than if it is three
thousand dollars.
I am willing sir, that our best men,
the men among us who are most
fitted to sit in the courts to adjudge
the rights of their fellow men, will
not accept the position for the sake
of the salary. They today earn in the
practice of their profession twice or
more than twice the sum you may
give, whether it be three thousand or
five thousand dollars. Nor, sir, do I
think they will seek the position
simply for the honor. That is a mat-
ter of desire, certainly. I will not
detract one iota from the dignity of
the office; but men will not make sac-
rifices of half of their income in or-
der to secure it. It is honor at too
high a price. The man who for the
salary or the honor of the place
would seek or accept it Is utterly un-
fit for it. The motive of his own
heart is wrong, and the whole of his
career will be in the wrong direc-
tion. But there is another and a
higher reason why this exalted place
should and will arouse the laudable
ambition of the very best men. It is
that it furnishes opportunity of use-
fulness to the state and people. He,
sir, who shall sit on this bench at
this stage of our history may mould
and lay the foundation of the juris-
prudence of this state for all time
to come. He who shall bring to this
work ability, learning, faithfulness
and power adequate to this charge will
do a great service to this people; will
build a mounument to his own name
that is to be desired beyond all the
money you can give them, and be-
yond all the honors you can confer.
It is to do what Chief Justice Caton
has done for Illinois; what Chief Jus-
tice Blackford has done for Indiana;
what Judge Hitchcock has done for
Ohio; what Judge Kent has done for
N. Y., and Judge Parker of Massa-
chusetts. Why, sir, it is an opportu-
nity offered to the right man that
comes but once in a life time; an op-
portunity that comes but once in a
generation. This is what makes the
office honorable, and stimulates the
ambition of good men to desire it
and fill it. Such a man would serve
his day and generation, and the most
distinguished man in these United
States is unfit to sit upon the bench
if he is not actuated by this motive.
A life devoted to objects of selfish-
ness, in acquiring wealth, honor,
however brilliant, will, when it is all
spent, be worthless and a withered
thing; but a life spent in doing good
in the service of the state, of the peo-
ple has a glory which illumes the
memory of the man who lives it, and
the people whom his services shall
bless. But, sir, there is another view
in which I desire to present this mat-
ter to the committee. I ask you, gen-
tlemen, to go back with me in the ju-
diciary history of this nation a few
decades. When Chief Justice Mar-
shall presided in the supreme court
of the United States, a little case
came before that court for consider-
ation. It scarcely involved over one
hundred dollars. The question was
whether the old corporation known
as Dartmouth College should be sup-
pressed, and another called the Dart-
mouth university established in its
SALARIES OF JUDGES
71
Thursday]
WOOLWORTH
[July 27
place. The officers of the new insti-
tution demanded of the secretary of
the old books of account and record
— some five or six in number, and
when refused, brought the suit to re-
cover them. Thus was raised the
question of the validity of the act of
the legislature), which turned upon
the provision of the Federal Consti-
tution denying to the states power to
pass laws impairing the obligation of
contracts. Thus the great question
was involved in that little case
whether institutions of learning and
institutions of religion should be pre-
served to do their benefice ent work,
or be subject to the caprice of irre-
sponsible legislatures. It was argu-
ed by the great American, Webster.
After he had gone through an argu-
ment of matchless power, he closed
by saying: "I speak today, not for
the single institution whose existence
is here involved. It is a small insti-
tution. If its light shall be put out,
still the clear day will bless the state.
But I speak for the multitude of in-
stitutions scattered all over the land,
by which the young are trained to be
citizens, and the suffering of the un-
fortunate alleviated. I plead for the
charities which benevolence have or-
dained, and the bounties by
f'which"] the lights of learning
and science are forever to be
fed. I plead for the future in its
illimitable issues, as well as these
in which we live." The court ad-
journed. It took time to consider on
its judgment, and then came in. and
the great Marshall delivered that
opinion, luminous with learning and
reason which established safe forever
all the blessings of the charities, the
legacies, the bounties, which the be-
nevolence of the good in all time
shall found and endow.
It was a principle whose issues
reach to the end of time, and compass
all institutions of charity and reli-
gion. To declare, to entrench, to for-
ever established this beneficent law
was the office and the work of a
great judge.
Do you think, sir, that pigmies can
render this great service? Do you
think that cheap men are fit to be
put at this great work? If so, pay
them but the small salary fixed by
the section. Do you say such ques-
tions as were involved in the case I
have referred to do not arise in our
courts? Why, gentlemen, to-day
there is in the Supreme court of the
state of Nebraska a question involv-
ing issues just as far reaching, prin-
ciples just as important as the case I
have referred to. To the determina-
tion of that case must be brought the
largest learning, the most exhaustive
research, and the largest powers, it
is no less than this, stated simply:
Whether a negro can sit on the ju-
ries of this state. Stated in its lar-
ger relations, is whether its funda-
mental law can be dictated to a sov-
ereign state by congress and by the
legislature of the state, elected for
a mere ephemeral purpose. Nay, an-
other question, broader and greater
than this: The relations to the Fed-
eral government of a territorial or-
ganization framing the fundamental
law of the future state, and the rela-
tion of new states to the general
government. It is p. question before
which any man who addresses him-
self to its determination ought to
I
72
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
bow down in profound humility, it
is a question not inferior in luayrnitude
deserving no less of consideration, as
any possible question that can be rais-
ed before the courts. Why this very
question of wheather this sovereign
state of Nebraslva, as well as the
several counties, can tax this Federal
corporation, the Union Pacific rail-
road is another question of the ut-
most importance; a question upon
which depends not the fifty thousand
or seventy thousand dollars that may
be involved in any particular litiga-
tion, but involving a repetition of
that sum through all the years to
come. I say this tribunal is the one
which must determine these ques-
tions. Now, sir, how are you to se-
cure men who are competent to dis-
chrage these great functions? Sir, I
am not of those who believe that the
man lives today in this state who is
altogether competent to discharge
the duties. Sir, I am one of
those who believe that any man
has led the life that has fitted him to
occupy this judgment seat in a man-
ner worthy of himself and worthy of
the place. Why, sir, the judge who
shall sit in that court, who passes the
vacations which he will have in idl-
ing about the streets, or in social
conversations with the neighbors arid
friends will never become fit for it
The man who has no library in
which he lives will never be fit for it;
the man who does not go into his
library, an ample library that of
itself shall cost all that you give one
of these judges in a year, the man
who will not have such a library and
go into it; and there exhaust day by
day and night after night the best ef-
forts of his mind, all the powers or
the nature with which God has en-
dowed him, will be unfit to sit there.
It is a man, sir, who shall deem his
duties on the bench but a very small
part of the duties of his office who
will adorn that seat. It is the man
who shall, vacation after vacation,
month after month, week after week,
day by day, night by nighc.store his
mind with the learning of law, and en-
rich and strengthen the powers of
his mind by the exercise of dilligent
and laborious study. Stich a man, sir,
living such a life, will do for this
state the service which we are enti-
tled to exact at his hands. Why, sir,
do these few thin volumes of statutes
that have been compiled contain the
body of the law? No, sir, they are
the thousands of volumes that line
the walls of your library below, and
he will be a fit judge above who shall
exhaust the learning that is there. Is
the legislature the law making pow-
er of the state? Why, sir, no legis-
lature is wise enough or good enougli
to embody the law in its enactments.
They are contained in the great num-
ber of reports which make up the
great body of the law.
These reports contain the opinion
of the great succession of judges who
through many generations and many
centuries, have from the many cases
before them evolved, illustrated,
made plain the fundamental rules
and great principles of jurisprudence.
He is not equal to the stature of
a great judge who has not mastered
it; nor will he ever attain that stat-
ure who does not labor to master it
all. Now, sir, I say that you must
pay these men enough to enable them
SALARIES OF JUDGES
73
Thursday]
WOOLWORTH
[July 27
to withdraw from the ordinary pur-
suits of life and give themselves up
altogether to this great work. I ap-
prehend, sir, that no man that is
elected to that position will be so
wanting in self-respect, and so want-
ing in respect for the good opinion
of his neighbors and fellow citizens,
as to withdraw himself from habits
of idleness and mere social inter-
course. I would have him also with-
draw himself from all avenues for
the accumulation of property. I
would have him withdraw himself in-
to the inner sanctuary of the learn-
ing of the law. That he can on'y do
by being relieved, by a fair salary,
not a liberal one, not an extravagant
one, but a fair salary, from the neces-
sity of eking out his living in the by-
ways and hedges of private life. Not
that he would be corrupt, God forbid
that this people, whatever salarj'
they shall pay, would elect into this
high tribunal one man who should
thus forfeit not only the respect of
his fellow citizens and the respect of
himself, but his hope of heaven, here-
after.
But, sir, while I have no fears of
that, if this salary should be put down
to a low figure, the pitiful sum of
$3,000, that you will get men in this
place who will either eke out their
substance from private fortunes al-
ready accumulated, or else by modes
that are not reputable, not fit for a
good judge to pursue. Therefore, sir,
I am in favor of the amendment of
my colleague from Douglas, (Mr.
Manderson) that the salaries of
judges of the supreme court shall be
put at the sum of $5,000 and if the
^salaries of judges of the district
c ourt are put at a lower sum, I am
not certain at all that any injustice
will be done. One word further be-
fore I sit down. This convention has
had before it the report of the au-
ditor of state showing the amount of
money paid into the treasury on ac-
count of commencement fees. I do
not know what that sum is, I know
it is very large. I am willing to con-
fess my utter surprise to see that a
measure introduced into the present
constitution of the state by which so
large a sum has been realized to the
state from this source, is left out.
Here is a mode of raising the means
of paying these salaries,, and the ju-
diciary committee come here and
say the people are too »poor to pay a
decent salary to these judiciary of-
ficers. Think of it. If one go into
the court and have the service of the
judge is it not right that he should
pay the expense? Oufrht he not to be
compelled to do tha^ More than
half the litigants in Douglas county
are non-residents of this state, and
the learned judge who presides in
that district court has told you that
in that county is done more than
half the judicial business of this
state. More than half are non-resi-
dents. I put it to you if it is not fair
if people come here to have the bene-
fit of our courts, that thev should
contribute the s'.:m of five dollars as
commencement fee? How is it pos-
sible to strike out the means of judi-
cial revenue and then cry out that
the people will not pay fair salaries
to these judges? Restore the provis-
ion and you have revenue sufficient
to pay all the salaries you want to
give.
74
SALARIES VS. THE PEOPLE
Thursday]
MYERS— TOWLE
[July 27
Mr. MYERS. Mr. Chairman. I do
not rise for the purpose of discussing
this question of salaries, but merely
to state my own impressions as de-
rived from the discussion as it has
thus far progressed. I think the
convention has devoted too much
time to the subject already and if the
whole session is to be consumed in
discussing salaries it will be certainly
a very expensive waste of time
which the people all appreciate. I
only wish to make this remark that if
we load the ship too heavily, put too
much freight on her, and she may be
a ship of heavy tonnage and able to
carry much, but if you go beyond
the measure of the ship you sink her
'to the bottom. It is true we are .in
favor of liberal and just salaries and
we have different views as to the
amount of those salaries; but if we
make them beyond the reach of the
people we certainly injure the sailing
power of our vessel, and we may all
go to the bottom. There is a greater
power behind the throne than the
throne itself. I mean the people, and
they will not roll these salaries under
their tongue as a sweet morsel; but
they will look at them as burdens,
and they will compare what it costs
them for the necessities of life, and
regulate them by that, and the com-
parison will not be favorable to
heavy salaries. I do not wish to stint
the judges of the judiciary to mean
and unworthy salaries, and make
them dependent upon private charity.
That would be unfair to a great state
but to give fair salaries is my ob-
ject. The legislators are the cus-
todians of that power which says
that the salaries shall not be increas-
ed or diminished, and I believe we
ought to leave it with the people. If
the people elect a judge, in whose
integrity and ability they have con-
fidence, they will provide by legis-
lative enactment what is right and'
proper. Therefore in order to save
our ship I move that the salaries be-j
regulated by law.
The CHAIRMAN. The amendment
is not in order.
Mr. MYERS. Then I make it as- j
a suggestion. '
Mr. TOWLE. It seems to have j
been a point entirely overlooked in
the discussion so far, that the pow-
er was already vested in the legisla-
ture, by section thirteen, to increase
the salaries of the judges of the su-
preme court. It appears to me the-
amendments which have been made
here should not prevail. The salary
fixed by the judiciary committee is-
entirely adapted to the wants of
the people of Nebraska. We should'
look to the financial condition of the-
state and see in what condition we-
are to pay these large salaries, just
as the head of a family does when
hard times come or, when resources
are cut short, and there *is danger of
being stranded upon the sands of in-
debtedness. We ought to reduce ex-
penses where, by possibility, it can be
done. The gentleman from Douglas
(Mr. Woolworth) spoke of Justice
Field of California. Cooley of Michi-
gan, and others. The yearly income of
California is $135,000. [Sic] Looking-
at our appropriations last winter we
find there were $200,000 one year,
and $400,000 for the two years. We
are running in debt, and getting be-
SALAEIES OF JUDGES
75
Thursday;
WOOL WORTH-TO WLE
[July 27
hindhand; and I ask if It is proper,
finding this state of affairs, to in-
crease the salaries of these judges. Is
it or is it not a question that those
judges can live reasonably well and
respectably upon a salary of $,3,000
per year. I will venture to say that
the salary of $8,000paid to the judges
of the supreme courts of the United
States, living at Washington, is no
more than $3,000 per year in Ne-
braska. That a man can live as com-
fortably and respectably in Nebraska
as those judges do at Washington.
Mr. WOOLWORTH. Will the gen-
tleman allow me a word. Is he
aware that Chief Justice Curtis was
compelled to resign his seat because
his salary was insuflBcient? And I
know myself that the justice as-
signed to this judicial district has
used so much of a very large private
fortune that he is in a very embar-
rassed state.
Mr. TOWLE. Mr. Chief Justice
Curtis is, perhaps, the only individu-
al who has resigned on that account
and there were other and mixed mo-
tives which influenced that resigna-
tion, because it is known he could
make at least two or three times the
amount in his practice than he was
making while in an ofiicial position.
I do not want to repeat that kind of
thing in this state.
I would have this constitution,
when it goes before the people, strip-
ped of all dead weight. I would have
it stand in the arena as stood the ath-
letes of old when competing for priz-
es. I believe there is a certain pride
of the members of this convention to
have this constitution go before the
people in such a shape as that it
will be adopted. The gentleman
from Douglas spoke too, in contradic-
tory terms, of Mr. Crounse. He based
his opinion smooth as it was deliv-
ered, and rounded as were his sen-
tences, and I believe all who know
him can vouch for that. Yet he says,
with all his learning, his integrity
and his desire to do justice, he
could not satisfy the demands of that
corporation, when a suit goes against
them in the lower court, they never
stop, but take it up into the higher
court. But that gentleman might
have said, after passing that magnifi-
cent strain of eloquence on Judge
Dilworth and Miller, that they still
decided to take it up to a higher
court. And that corporation, when-
ever they lost in a lower court, pass-
ed that thing on until the bitter end
and demanded a decision. The gen-
tleman made an argument which will
not stand by itself. And those very
gentleman, Miller and Crounse, could
you have found another man in Ne-
braska that that giant corporation of
which the gentleman has spoken
would have been content with and
they would not appeal from? Why
sir, the individual could not be found.
They would have risked the affairs
of the corporation in any other
hands.
Mr. MYERS. I would ask, as a
matter of order, what railroads have
to do with this body?
Mr. TOWLE. I am speaking to a
question which the gentleman before
me alluded to.
Mr. LAKE. I trust the gentle-
man may be allowed to proceed.
The CHAIRMAN. The gentlemaa
is in order and can proceed.
IG
SALARY OF SUPREME COURT
Thui-sday
TOWLE
[July 27
Mr. TOWLE. It is barely possible,
Mr. Chairman that were I sitting
here as a legislator, and did I not
have a particular desire that the peo-
ple should adopt the constitution, it
is barely possible that when our re-
sources are increased, that was the
business of the supreme court suffi-
cient to keep men busy all the time
that I might here, if our income
would justify, and I do not believe
our people would object to an in-
crease from $4,000 to $5,000 per
year. The argument was urged that
we have increased the governor's sal-
ary to $4,000, and why not increase
those of the judges to the same
amount. I grant you that it may take
a better man to make a good judge
than it does for a governor. But they
must not forget that we have required
"by our constitution that the governor
must reside here at Lincoln, and
must support his family upon his
pay. I tell you that it will take one
or two thousand dollars per annum
for a judge to live here than if he
resides in any other portion of the
state.
Mr. Chairman. Believing that
when there is a necessity for it the
pay of our judges will be increased
and believing that one thousand dol-
lars more given to a man to make
him honest, will not have that ef-
fect, because if he is dishonest, he
he will be dishonest anyhow, I oppose
the increasing of the salary as pro-
posed, again: it is provided that the
Judges of the supreme court shall
be over thirty or forty years of age.
Now if they have been men of mode-
rate economy they have accumulated
sufficient property that they can take
these offices for perhaps something
less than the amount they may see
fit to expend each year. It is not for
pay, altogether that men take these
offices; it is for the influence, the po-
sition, the power they get. To some
extent I think that a man ought to be
willing to take these offices for the
honor connected therewith as well as
for the emoluments of the office. I
deny that insufficient salaries ever
made a poor bench or a dishonest
bench; but it is a fact sir, that our
judges are honest and upright men.
It is not the salary which they re-
ceive that has developed such men
as Cooley, Blackford, Dillon, and
others of like reputation. It is a
fact that their salaries were small,
but sir, the God given intelligence
they possessed was bound to shine
forth and be of value to themselves
and their fellows. The intelligence
which God has given to men will
make itself felt, and wherever you
find these men, whether they receive
large or small salaries you will find
them pushing their way through.
Now, sir, when we are placed in a
different and better condition, when
we are prepared to pay better sala-
ries, then I am ready to pay more. I
believe that oijr present judges will
accept the offices they now hold. I
believe that the people have asked
them to become candidates for re-
election, and that they are willing
to keep their places. Mr. Chairman,
for these reasons I am opposed to an
increase of salary over that as report-
ed by the committee.
Mr. ABBOTT. Mr. Chairman. I
will ask the gentleman if he never
SALARY OF SUPREME COURT
Thursday^
ABBOTT— MASON
[July 27
heard that Chief Justice Taney spent
his life upon the bench, and, when
he died left his family in poverty?
Mr. TOWLE. Yes, certainly, I am
acquainted with the case.
Mr. ABBOTT. I would like to tell
the gentleman of a fact which came
under my observation. I was riding,
sometime ago, with Judge Crounse.
When the conductor came around,
the judge showed his pass, and said
to me, "the fact is, I am ashamed of
this, but my salary is so small as to
leave me poorer every year and I am
not able to pay my way, and have to
accept passes from railroads." I told
him then, that if I ever had the power
I would do all I could to increase
the pay of judges, and give them
salaries somewhat better proportion-
ed to their abilities and service ren-
dered.
Mr. MASON. Mr. Chairman. I
don't propose to let this question pass
without stating my individual views.
The question is one which interests
all the people, because the protection
of lives and property are connected
with it. It is important that the law
he clearly declared, and to the ac-
complishment of this result we must
have judicial offices, filled by men
of learning and ability. This class of
men are not usiially men who are
distinguished for the acquisition of
property. Indeed, sir, if we look
over the world, we find the distin-
guished scholars, in every depart-
ment poor men. A man sir, cannot
bend every energy of his mind to the
study of his books and yet engage
•a speculation; he cannot worship at
e shrine of learning, and, at the
same time be toiling for acquisition
of wealth. Now. sir, what is the
lesson we learn from this? And let
us consider for a single moment what
we do when we ask a man who is
fit for the place. Why, sir. he aban-
dons a profession — he abandons a
practice which it has taken him years
to build up, for sir, every lawyer up-
|on this floor will tell you that his
practice, and his knowledge of the
law is his capital, this, sir, is scat-
tered to the four winds — swept from
existence. Usually it is a practice
which will pay him not less than
four or five thousand dollars per an-
num. Why sir, if I appeal to my
learned friend, Judge Lake, he will
tell you that he laid down a practice
which was paying him four thousand
dollars a year, and took the two
thousand dollars which he receives
as a district judge. But sir, it is not
just to the state to shut out the learn-
ed man who may be poor, from hold-
ing this office, because he has no pro-
perty to fall back upon to support
himself. One other suggestion I de-
sire to answer; I can speak for one,
and I speak too as one, whom, so
far as I know, is not famous for ex-
travagance, neither at home nor
abroad, and I say I am thirty-five
hundred dollars poorer today than
when I was sworn into office, notwith-
standing I have drawn from other
sources than my profession. Now
this I hold to be the true rnlp with
respect to the salary of the judges;
you should pay him sufficient to let
him live, and support his family not
in luxury, not in opulence, but still
in a comfortable manner. We should
have enough to live on and pay for a
78
SALARV OF SUPREME COURT
Thursday]
MASON-LAKE
[July 27
life insurance policy, so that if he is
taken away, his family should not be
left to the cold charities of the world.
Let us take this for a standard, we
pay $3,000 a year. If any gentleman
rent a house and furnish it and fit
it up for his family of three or four
children, in this place — I am told
that he cannot rent such a house for
less than $800 or a $1,000 a year,
and they tell me that they cannot
support their families and educate
them for less than fifteen hundred
•dollars a year, although he may not
give a dinner party the whole year
round, and then sir. he has but $500
left to pay his taxes, etc., and he
•will have nothing left to pay the pre-
miums on a life policy. Still I
would not favor paying $5,000, al-
though I would favor $4,000. I am
not so fortunate as to live here where
I can have access to the state li-
brary and it will take $500 a year
to keep up my library. One that
spoke as man speaketh not has said
"the laborer is worthy of his hire"
and I think the judiciary officer is
worthy of his hire. It does seem to
me in looking over this matter that
the necessary expenses are to be con-
sidered. It costs more to live in the
state of Nebraska than any other
state in the Union, with two or three
exceptions. I undertake to say that
my colleague (Mr. Lake) could not
rent the house he lives in in Omaha
and live on less than $3,000 a year.
I would not make it five thousand for
the reason that the gentleman from
Douglas (M. Woolworth) has sug-
gested that no such man is in the
stftte now and we will have to take
some man that is in the state, and
hence I think it is well for the con-
vention to fix between these two ex-
tremes $3,000 and $5,000. If it is
thought by any gentleman that I de-
sire to retain this office at $3,000 a
year he is grandly mistaken. My
first duty is to my household; my chil-
dren remain at home to day unedu-
cated merely because I am unable to
send them away. If we put this sal-
ary at $4,000 I think we can then
command as good talent as we have
in the state. For these reasons I
shall support the amendment offered
by the gentleman from Douglas (Mr.
Boyd.)
Mr. LAKE. Mr. Chairman. I
beg the indulgence of the committee
a few minutes. It seems to me that
the whole question is begged by the
gentleman who support these large
salaries. They all admit the fact
that I have stated that we shall have
the same judges on the bench that we
would have with a higher salary.
Mr. Chairman, I agree with my col-
league (Mr. Woolworth) in the high-
er encomiums he pays to the eminent
gentlemen of the bench, and sir,
what was the salary that has brought
forth his talent? What was the sal-
ary paid to Chief Justice Hitchcock
of Ohio? For a long time he labor-
ed upon a -salary of $1,800 and $3,-
000 a yeai is all that is paid today
in Ohio. Ohio the third state in the
union, with more causes to be de-
termined in one year than will be
found here in a term of six years.
Look at her ability to pay and at our
poverty as a state and tell me why
we should pay more than that and the
older state. When we cast our eyeg
SALARY OF SUPREME COURT
79
"Thursday'
LAKE
[July 27
•over this prairie, what do we see, as
a source from which to draw all these
Tiigh salaries? The inhabitants all
over this state have come here for the
purpose of making homes. Many of
them unable to pay for the lands they
have purchased. They have come
here for the purpose of bettering
their condition. They are living in
hovels, in dug-outs, in sod shanties
and tents throughout the length and
breadth of our state. It Is from
these sources that the revenues of the
state are to be drawn, and we must
not expect to step forth at first into
the full grown stature of the first
state of the Union. We must not ex-
pect to be able to pay the same sala-
ries to our officials that are paid in
the state of California, whose foun-
dation rests upon solid gold. We
must look to the interests of our
constituents and ask what they are
able to pay for a reasonable amount
of intellect, a reasonable degree of
talent, and I think Mr. Chairman,
that if the best order of intelect, the
best learning at the bar of our own
state are brought to investigate the
questions which are brought within
our courts that the people of this
state will be perfectly satisfied, and
although in the eloquent language of
my learned friend (Mr. Wool-
worth) their decisions may not be
quoted in Westminster hall, although
they may not shine with the lustre
that the Blackstones or the Kents or
the Storys, or the Shaws could be-
stow upon them, still the people of
our state who are living in their dug-
outs, shanties, and sod houses will
be perfectly satisfied if the persons
tiey elect to fill these oflSces bring
to the decision of the cases which are
submitted to them all the talent
which they possess and do that hon-
estly and well. Now for the purpose
of showing what the talents which
the gentleman has eulogized so well
and highly were paid what the ju-
rists of Ohio, Minnesota, Kansas and
of other states were paid, { will read
a list I have prepared of a few states.
Missouri, one of the richest of our
western states, pays to its supreme
judiciary $3,000 per annum. Minne-
sota, a state far more wealthy than
ours, a state older by a good many
years, a state that has a far greater
amount of litigation than Nebraska,
what does it pay its supreme judge?
$2,000 per annum. Michigan, a
state whose decisions are quoted
throughout the length and breadth
of the land, that has a judiciary to-
day, perhaps, second to none in the
United States, and one whose decis-
ions are quoted in the Supreme court
of the United States. What does the
state of Michigan pay its judiciary,
a state that has that man so eminent
for his learning — Justice Cooley —
presiding upon her supreme bench,
she pays $1,500 a year. Kansas, a
state that was admitted into the un-
ion long before Nebr. thought of be-
coming a state, and a state which
must have two or three times the
amount of litigation found within
our courts. What does she pay? To
her chief justice, $1,800 a year, and
associates $1,500. Iowa, what does
she pay? We find upon the statute
books of that state the salary of her
supreme judge is $2,000 per annum.
Ohio, I have before remarked that
at the time she could boast of th»
80
SALARY OF SUPREME COURT
Thursday]
LAKE
[July 27
eminent jurists she has ever had,
those that sat together with the emi-
nent chief justice named by my col-
league, Hitchcock, that at that time
when those decisions were pronounc-
ed that are today recurred to with
pride by every son of Ohio; at that
time the salary provided for her ju-
rists was $1,800 per annum. She
has increased it so today the judges
on the supreme bench receive $3,000
per annum. Now, Mr. Chairman, I
would ask what sense is there in this
great increase of salary by a people
poor in worldly goods as we must all
admit Nebraska is to day. Indebted
to the extent that we are, our state
debt increasing from day to day
with fearful rapidity, that our tax
payers in every portion of the state
are bowed down as it were under the
load they are compelled to carry by
reason of excessive taxation, and by
reason of the excessive burdens they
are bound to bear. I would ask Mr.
Chairman, is there any reason what-
ever why a state thus poor should
payher judiciary — when it is claimed
by my colleague (Mr. Woolworth)
that she has not the material of suf-
ficient value without importation —
these high salaries? It seems to me
there is no reason whatever in it.
The learned chief justice who has
presided during the past four years
upon the supreme bench, and who it
is admitted has presided with dignity
and with credit, he says that th«
the salary he has received has been
entirely inadequate. That may be
true. I agree with him in all he has
said ; respect to that. I agree that
$2,000 has been an inadequate sala-
ry, but sir, had the salary been $3,-
000 per annum, had it been what we
are proposing to make it in this con-
stitution, then, during the past five
years, or nearly five years that he
has sat upon the bench, he would
have received $5,000 more salary
than he has received, and where
would have been his loss of $3,500?
Would it not have been more thaa
made up? Would he not have had
sufficient then so that he would not
have been poorer today by $3,500
than when he took his seat upon the
bench? and is it not a fact Mr.
Chairman, that the purchasing power
of $2,000 today is equal at least to
what $3,000 would have been during
the first years he sat upon the bench,
and then, in alT human probability
that $3,000 during the six years to
come will be equal to what $4,000-
or $5,000 has been during the six
years that have passed. Why sir. it
has been remarked that Nebraska is
one of the most expensive states in
the union to reside in. In some places
that has been true, but I do not agree
that at the present time it is one of
the most expensive states to reside
in. All those articles which enter
into the daily consumption of fami-
lies can be provided within our state
as cheap or nearly as cheap as in
any other state in the union, and
much cheaper than in the eastern
states, cheaper than in Ohio where
the salaries are $3,000, as cheap as
in Iowa where they are $2,000, as
cheap as in Kansas where they are
$1,800 and cheaper than in Missouri
where they are only $3,000. Now
sir, what is just and what is right,
that is the question. Is it just, is it
right, that the people of this state
SALAKY OF SUPREME COURT
Thursday]
LAKE
[July 27
should pay $5,000 per annum to
increase the private library of any
judge that may be elected to sit up-
on her bench, when she can illy af-
ford to pay out of her state treasu-
ry $1,000 per annum to increase the
state library which shall benefit the
people of the entire state. Why sir,
gentlemen talk upon this floor as
though it was the duty of the state
to make up for gentlemen's private
law libraries, that when they retire
from the bench they may have a for-
tune in a private library. If a man
has been in the practice of the law
and has lived to the age of thirty
years and been in successful practice,
if he has not already a fair library
or the means of purchasing one, then
it seems to me that he has practiced
law to little purpose, his profession
has not been of much use to him. He
should have been able at that period
of life, at least if he had been a suc-
cessful practioner at the bar to have
accumulated enough to purchase at
least a respectable law library, if
he had not already furnished himself
with one, and I do not believe that
the people who are living in the dug-
outs, shanties and mud houses, who
are living upon farms not paid for,
who are paying interest upon money
which they have agreed to pay for
their little farms, are in a situation
to have wrenched from their muscu-
lar hands money with which to fill
up the private libraries of gentlemen
of learning and wealth. There are
two sides to this Question, there is
the question of what is a just com-
pensation, and then there is the
question of ability to pay, and both
must be considered in order to arrive
6
at a fair, just and equitable compen-
sation. I agree with all that has
been said that a fair compensation
should be paid, but I do not think
that even for the same order of tal-
ent a people poor in worldly goods,
nearly next to poverty stricken
should be called upon tp pay such
salaries as a state that is rolling in
wealth and whose taxpayers have
their hundreds and thousands of dol-
lars out at interest all over the land.
Why sir, there is not an improvement
within our state of any magnitude
but what the taxpayers of our state
are held to paj^ a large amount of in-
terest on the very investment. Where
has the money come from that has
built our railroads? Where has the
money come from that has built our
bridges? Where is the money drawn
from that is spanning the Platte at
one place and another with those
beautiful structures whj^ch connect
the north and the south of our state
together? Where does all this money
come from? It has been brought
from abroad, and the people
of the counties have been compelled
! to tax themselves until they are
fairly ground into the dust by exces-
j sive taxation, in order to draw these
funds from other states, in order that
these improvements may be carried
forward. How is it with our rail-
roads? Every county throughout our
state, through which a road has
passed, has been compelled to burden
itself with an overwhelming debt,
which shall gnaw and eat out the
very vitals of the people for yea.rs to
come, in order to induce that wealth
within our limits, look at the bonds
which have been issued and are to be
82
SALARY OF SUPREME COURT
Thursday]
LAKE
[July 27
Issued throughout the various coun-
ties and precincts to remunerate
those men who have been induced to
invest their monej- in our state. It
is easy for gentlemen looking only
at their own pockets, and not at the
pockets of those who are to pay, to
say that $4,000 or $5,000 will not
hurt the people. So you might say
of any expenditure in the state. When
the supreme court asked for an ap-
propriation to fix up the law library,
that the supreme court judges might
have a respectable library for them-
selves, and in order to enable them to
pass upon questions brought before
them with all the intelligence they
could acquire. And what response
did the appeal meet with? The an-
swer was "we are too poor; we can-
not afford it." $1,000 was all that we
asked, and the I'esponse was
founded in reason. It might be
truly said $1,000 was a small
«um, and would scarcely be felt.
But if that was the only sum,
Mr. Chairman, it might be true. And
these salaries; were they the only
salaries the people might stand it,
and would not feel it. But when you
accumulate all these little sums,
which, in themselves, do not amount
to much, when you take into consid-
eration the number of these sums
which are said to be so Insignificant
in themselves, when you aggregate
them, bring them together, and pre-
sent them to a people that is poor, to
a people that is already overwhelm-
ed with taxation, they will look to
them of huge proportions. And I
say to Rencl(Mnen upon tliis Moor if
they desire a new constitution; if
they desire a constitution which
shall be ratified and approved by the
people of this state, they must be
careful, exceedingly careful, how they
increase the expenses of the state
government. An estimate of the
proposed increase will show, Mr.
Chairman, that the aggregate al-
ready proposed by the reports of the
several committees, without increas-
ing them, will reach very nearly to
$50,000 for salaries alone. And,
then, when- you take into account the
various other expenses that must
necessarily be incurred, why, sir, the
aggregate sum which will be taken
from the hands of toil will be of such
magnitude, such huge proportions, as
will be perfectly appalling. If these
sums which I have mentioned have
secured the talent which has been
eulogized so highly by gentlemen
preceding me on this floor, in other
states, will it not have the same ef-
fect here? But, Mr. Chairman, the
whole question has been surrendered
by the gentlemen on the other side
of this question when they are forced
to the admission that what I declared
yesterday upon the floor, that the
same order of intellect, the same
degree of talent, the same men of
learning and ability, will be found
upon the bench of our state, with a
$3,000 salary per annum, that you
would find with $5,000. Let us be
considerate, Mr. .Chairman, let us
look this question squarely in the
face; let us weigh not only the wants
of the judiciary, but also the ability
of our people to pay; and if we do
our work wisely and well; if we re-
tain in this constitution, and provide
for a character of government which
shall not be too burdensome or op-
SALARY OF SUrKEME COCRT
83
Thursday]
LAKE— MANDERSON
[July 27
pressive, the people will say "well
done, good and faithful servants, "and
will ratify our acts. But if we show
a spirit of extravagance, and that we
are desirous of placing upon the su-
preme bench and in other positions
of trust within our state, persons
merely for the sake of ornament,
with little work and large pay; if,
in a word, they see we are determin-
ed and desirous of making a splendid
go\'ernment; one that shall shine, and
one that shall invite all the learning,
all the ability and all the erudition
that may be found in all the other
states, merely through the potent in-
fluence of the high salaries; if they
see we wish to foist upon them this
experiment, they will repudiate our
acts, they will throw our pretended
constitution back into our faces, and
say we were not worthy of the places
we had occupied as their servants on
this occasion.
Mr. Chairman, I believe I have
nothing further to say. I have en-
tered my protest against this scheme
of aggrandizing the oflicers of the
state, and supporting them in luxu-
ry when the taxpayers of our state
are in poverty; paying more than
they can afford to pay, already groan-
ing under the oppressive taxes of the
present hour; while they are asking
•every department of the govern-
ment at the present time, to practice
economy; while they are striving,
to the best they may, to acquire a
competence for the support of them-
selves and their families; while they
are doing all this they ask us here
"today to do what is just, and what is
Tight and no more. I believe that
$3,000 is ample. I believe that no
officer provided for in this constitu-
tion should receive more than that.
If it were desired that the salaries
be increased hereafter, when the
state is more able to pay, I would
not object to a provision which
should leave this increase to the ac-
tion of the legislative body, repre-
senting the people, coming from the
people, and representing them direct-
ly upon this subject. But today,
here, as a representative of the peo-
ple of the state, I do say that, in
my humble judgment, $3,000, as a
salary for the judges of the courts of
this state, is every cent the people
of the state can afford to pay, and all
that ought to be placed upon their
shoulders.
Mr. MANDERSON. I did not sup-
pose, Mr. Chairman, when this lit-
tle bantling of an amendment of mine
was thrown out upon the world that
it would receive such a warm recep-
tion; and I would be content that it
go to a vote, and say nothing on the
subject, were it not that I thought
it right that I should notice one or
two of the suggestions of the gentle-
man from Douglas (Judge Lake.)
And I propose to look at this subject
from the same standpoint that he
has considered it. First, from the
position of the servant of the people;
from the position of the office holder,
the judge; next, from the position of
the taxpayer. I do not know that I
could say anything to add to the able
arguments made by the gentleman
from Otoe (Judge Mason) and my
colleague (Mr. Woolworth) as to
what is expected of judicial officers,
and what they have the ^Ight to ask.
84
SALARV OF SUPREME COURT
Thursday 1
MANDKRSON
[July 27-
But I differ from my friend across
the way (Judge Lake) in the idea
that honor alone is sufficient com-
pensation for filling high office. True,
the position of Supreme Judge is
one very exalted and honorable; one,
as has well been observed, that is
worthy of the highest ambition of the
best men. But let us look for an in-
stant at the class of men who will be
selected for this great honor. They
are not young men, in the first place.
As a rule, they are selected from
men between the ages of thirty-five
to forty, and fifty-five to sixty. They
must be men of mature experience to
fill the position ably and well. They
must bring to the position exalted
views. They must bring to the posi-
tion great learning, and the ability,
the power of mind to grasp great
ideas and handle them well. Men of
that age, as a rule, are men of fami-
ly. They have depending upon them
wife and children. I have in my
mind now, a gentleman — and if I
would mention his name this conven-
tion, with one voice would agree with
me — who is eminently fitted to oc-
cupy the place upon the supreme
bench of this state. His locks are
silvered with age. In the pursuit of
his profession, he has not gathered
much of this world's goods. He is
poor in purse*, but rich in intellect.
He has that greater riches, a mind
richly stored with knowledge. He
has depending upon him, wife and
a number of children — five or six, I
believe. These children ranging
"from the sleeping child upon its
mother's bosom" (if my friend from
Otoe, Judge Mason, will imagine the
double quotation marks on each
side my mouth) to the youth about
springing into full fledged manhood.
These children demand of him more
than bread and butter; they demand
more than food for the body. They
demand food for the mind. It is his
duty to them, as much as it is his
duty to feed and clothe them, that he
should place them upon the high
plane of full, liberal education. His
boys clamor to be sent to the high
collegiate institutions of the country.
Dartmouth and Yale, Harvard and
Princeton, open wide their doors to
receive and welcome them. And it
is his duty to send them there, or to-
some other place where they can re-
ceive an education suitable to fit
them for their fight with the world.
His practice affords him an income
of, perhaps, six to ten thousand dol-
lars. If called to the bench, of course
he sacrifices this income. He is not
fitted to go into the busy marts of
commerce and strive for wealth and
the avenues of speculation are and
should be closed to him; he is de-
pendent upon his profession, and af-
ter he comes upon the bench, upon
his judicial salary. When his chil-
dren ask for those advantages which
are their due — when they ask for
that liberal education to which they
are entitled, shall he put them off
with "honor" — shall he feed them
with "honor?" My colleague. Judge
Lake, adopting the sentiment, if not
the language of olcj Sir John Fal-
staff, says, "Honor pricks me on." I
respond in the language of the same
fat old knight, "Ah! but honor may
prick you off too!" (laughter.) "Will
honor set a leg? No!" Will honor
buy books and bread for his children?
SALARIES OF SUPREME COURT
85
Thursday]
MANDERSON
[July
No! No, sir, money is the only pur-
chasing commodity. I don't believe
that a judicial officer can live as he
should live and give to his family
the advantages they have a right to
ask and demand of him on three
thousand dollars a year. I think the
figures at which I have put these
salaries are nearly correct. I think
the judges of the supreme court of
this state should be paid five thous-
and dollars per annum. I have tak-
en one view of the matter. Now let
us look at the subject from the tax-
payer's stand point. Let me say, in
the first place, that I believe this
body is a fair representation of the
people. We have here represented
all classes of society — all trades, all
professions. We have poor men
among us, and we have the rich
tax payer. I don't believe there will
ever be gathered in this state a body
of men who will better represent the
different classes of the people. Sup-
pose Mr. Chairman, we give the sala-
ries that we claim here should be
given — these salaries that the gen-
tlemen say are so high. Let us look
at facts and figures and see what will
be the result. Say we have eight
judges — five district judges and
three supreme judges. Suppose we
place these salaries at three thousand
dollars each per year. That is $2 4.-
000; we give the governor $4,000,
and the other executive officers of the
state their respective salaries, say
$2,500 each. It will foot up $45,-
500. Now suppose we add to that
sum one thousand dollars additional
for each of the supreme judges, mak-
ing their salary $4,000 instead of
;$3,000. Suppose we add $1,000 to
each of the district judges. That
makes eight thousand dollars more
and the whole amount foots up fif-
ty-three thousand five hundred dol-
lars. If you leave the district judges
at three thousand dollars, it leaves
th amount forty-eight thousand five
hundred dollars. Now Mr. Chairman
that is the amount that is suggested
should be paid by the amendment of
my colleague (Mr. Boyd). I may
say here, while I myself am in favor
of paying the judges of the supreme
court five thousand dollars, I think
the committee are not in favor of
it, and I will not therefore strenuous-
ly press my amendment. So then if
we pay the district judges $3,000, it
takes $48,500 to pay the salaries of
our officers each year. Now what is
the assessed valuation of the proper-
ty in this state? Forty-five million,
five hundred and twelve thousand
six hundred and fifty eight dollars.
One mill upon the dollar! one-tenth
of one per cent of the assessed valua-
tion of the property in this state will
pay these salaries! Now is this
such terrible taxation? We have a
population of one hundred and fif-
ty thousand people. Suppose we say
that the salaries amount to fifty
thousand dollars — which is more
than they do amount to according to
my showing, that is thirty-three
cents to the individual. Should this
affright us? Why this taxation for
these salaries don't come from the
poor people, but from the rich tax
payers. But are we so terribly poor?
Should we inscribe upon the banner
that is held forth to the world by
the emigration board, that we are so
poor that we cannot pay sufficient
so
SALARIES OF SUPREME COURT
MANDERSON-LAKE-ESTABROOK
[July 2T
salaries to our officers? But we are
not poor. We have here a greater
property valuation according to our
population and a larger public patri-
mony than any other state in the
union. We have here immense cor-
porations which will always be a
great source of wealth to us. The
taxes upon our railroad property will
give enough to pay these so called
"high salaries." But. it is said, we
should not pay high salaries because
other states pay low salaries. Now
let me say here, other states seeing
the wrong that is being done, are
raising the pay of their judges. In
1867, the salaries of the justices of
the supreme court of Ohio were rais-
ed to $3,000. When I left there, two
years ago, the people were clamor-
ing that these judges should receive
better pay.
Mr. LAKE. Does not the gentle-
man know that a proposition to raise
the pay of the judges of the supreme
couri to $5,000, was defeated?
Mr. MAXDERSOX. Yes sir, and I
know why it was defeated. It was
done by the same "broad guage"
deniagoguery that defeats valuable
propositions here, (Laughter.) In the
state of Iowa I am informed the sal-
ary of the supreme justice has been
raised to thirty-five hundred dollars.
In the state of Xew York the chief
justice gets $9,500 and the' associ-
ate justices $9,000. But sir, it was
suggested by my colleague (Mr.
Woolworth) that a large amount of
the salaries we propose to pay our
judges should be gathered from com-
niencenient fees. Xow the judiciary
rommittee. of which I have the hon-
or to be a member, was divided upon
several" subjects. There was no mi-
nority report, it is true, but it was
understood that that which did not
suit the minority would be discuss-
ed by that minority in the committee
of the whole, or in convention; but
in the matter of commencement fees,
we thought, generally, they should
be continued. If we retain the pro-
vision regarding commencement fees,
in our constitution, their collection
will go a great ways toward paying
the salaries of the judicial officers.
This great outcry, that the people are
being "trampled down by taxation
from high salaries" is simply trash.
I hope the amendment will prevail.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas, (Mr. Man-
derson) to make the salaries of the
supreme judges $5,000 instead of
$4,000.
The amendment was not agreed to.
Mr. ESTABROOK. Mr. Chairman.
I have but a word to say upon this
question; but I think I would take
the opportunity, after having suffici-
ent time to recover from the con-
dition of repose and calm satisfaction
into which I was thrown by the
sweet tones of the silvery voices of
my colleagues — I say, I think I
would take the opportunity of con-
gratulating my self upon the fact
that I belong to a profession which is
so supremely above all the consider-
ations which influence ordinary
minds (Laughter.) What extrava-
gant phrases shall be poured forth
by the gentleman who sits upon my
right (Mr. Campbell) upon the learn-
ing of the profession to which he be-
SALARIES OF SUPREME COURT
S7
Thui-bdiiyl
ESTABROOK-MASON
[July 27
longs and then too, I think I can see
in the endeavor to put this through
that the man who makes the great
pow-wow will have his salary in-
creased so that all the learned gentle-
men may be upon a par with the oth-
er officers of the state. It is asked
that the salaries may be increased
not only to support their large fami-
lies, but to send their children to
Harvard and Dartmouth. The chil-
dren of some must be sent away to
be educated, while others must dig
in the prairies of Nebraska for an
honest livelihood, to support these
large salaries perchance. I know the
legal profession is a large one. There
are in this state 300 of them in this
state making a living, and we have
to pay to these about $1,000 a year
each. I happen to know that it
don't take much longer to make a
lawyer than to make a good tanner
and currier. There were two men
in the state of Wisconsin, one of
them was a lawyer and the other was
a tanner, who got into a dispute
about a point of law. Well they dis-
puted for some time. "Well," said
the lawyer finanlly, in order to
clinch the matter and put an end to
all question and controversy, "my
friend, I will stake my reputation as
a lawyer, that it is so." "Well,"
said the other, "I'll stf^ke my reputa-
tion as a tanner and currier it is not
so," and he was right.
Well now^ is there anything about
the fact that it takes a lawyer to fill
the position. We all know under the
practice of our law a lawyer is only
expected to show that he has read
two years and passed through a very
cursory examination, and he can
then take this title upon him. Now,
sir, what are some of the duties of
this learned profession? Why sir,
there is a guide board at every turn
to point out the way, so that the
merest tyro can understand and ex-
pound it. You will find there is
scarcely a question can arise which
has not been passed upon over and
over again; and let me suggest that
these great duties have not been se-
cured by high paid salaries; perhaps
the greatest argument that ever was
made, was that referred to here to-
day, made by Webster on that occa-
sion and that he volunteered to do
without a cent of pay. Since refer-
ence was made to this decision
this morning I went down to see
what chief justice Marshall received
at that time and found it was
$4,000.
Mr. MASON. Would not $4,000 at
that time be more than $10,000
would be now?
Mr. ESTABROOK. No sir. Now
that leads me to make this remark.
Since that time many of the states
have increased the salary of its of-
ficers on account of higher prices, but
that caur:; no longer exists; prices
have come down but salaries have
not. I don't plead poverty for this
state nnd ask that these salaries
shall be made low on that account,
no sir, I stand here today to say that
the state of Nebraska has greater re-
sources today than any other state in
the I'.nion with but few exceptions,
and she can well afford to have every
thing she wants and needs and if I
could be induced to believe that we
S8
SALARIES OF SUIMIEME COURT
Thursday]
MANDERSON-ESTABROOK
[July 27
could get better talent by making
this salary above the usual rates I
should support it. I don't suppose
that any individual will desire to
take upon himself this position for
the purpose of educating his children
at Harvard, if so I say he had bet-
ter invest his capital in railroad
bonds or something that will pay
better, — If as the chief justice him-
self says he can perform these du-
ties in six months. Let them spend
the six months in the education of
their children at home and I don't
see but what they might spend about
three months gratuitously in giving
instruction or lectures in some of the
schools of the state.
Mr. MANDERSON. Will the gen-
tleman permit me to ask him a ques-
tion?
Mr. ESTABROOK. Certainly. I
will; I am not making a speech.
I do not understand how it is that
the lawyers all rush to the res-
cue and insist that their services are
so far superior to the service of
everybody else. I am glad to hear it.
I know that the profession is an
honorable one, superior to all others
in the estimation of the world. I
will undertake to say that any man
of ordinary ability can within a
reasonable length of time and within
the same length of time it takes a
man to make a basket qualify him-
self in the fundamental principles of
law. What do you think of a jury-
man? He does not have to be ex-
ceedingly learned. He is the man
who detides your cases, he is a man
who perhaps never opened a law
book except to read the herd law and
scarcely understands which is the law
among the multitudes of them, or
how to construe it when he finds it.
As a juryman he has opened before
him the books of the law, he is
made to apprehend, it takes no great
learning to understand the principles
of right and wrong. You take
three boys from one family, one is a
farmer, one is made a lawyer and the
other peradventure is a doctor, they
are all about smart alike, all have
pretty good sense, but when you
come to adjust the payments of sala-
ries and the like, you pick up the
fellow that had taken up the legal
profession and say he shall have such
a salary as shall enable him not only
to live without work six months in
the year, but educate a large family
at Harvard. Well I am in favor of
the first report, it secures the best we
have. I will not suppose sir, that in
filling these benches individuals shall
be selected and taken frona a large
practice, a large practice is not al-
ways an indication of fitness to fill
a supreme bench or other bench. In-
dividuals acquire practice through in-
fluential friends. I know a man who
brought money, loaned it out and
forclosed mortgages and with the
little amount of law he possessed has
acquired not only reputation as a
lawyer, which I do not think he de-
serves, but has at the same time
brought wealth into his exchequer.
Thus it is he becomes a noted prac-
: titioner, and it is said he would not
leave his business to fill any position
on the bench. It is not his great
learning that has brought him repu-
tation or wealth, simply circum-
stances. I have been in the frontier
SALARIES OF SUPREME COURT
89
■Thursday]
ESTABROOK- MASON
[July 27
all my life, and the best judges I
have ever seen upon the bench were
those who were educated there, men
who had hardly any practice, be-
cause it needs one kind of education
to be a practitioner at the bar and
another to be a judge at the bench.
The best judges I have seen are those
coming without any great eclat as
practitioners, they are the best men
I ever saw sitting on a bench. I was
told the other day by Mr. Woolworth
that the regents, a very important
position in the state of New York
were appointed for life and discharge
very important duties there without
so much as one cent. It would be a
matter of sincere regret to me that
my friend from Otoe (Mr. Mason)
should ever think for a moment of
leaving the bench he so adorns,' but
if he can make more practicing his
profession of course he should adopt
it if he cannot live without educat-
ing his children as he desires. If his
statements upon this floor be true
that even while a member of the su-
preme bench and at the same time do-
ing circuit duty in one of the largest
■circuits in tlie state, if he can still get
six months of the year to himself, I
wonder if he cannot bring some of
that extra learning of his to bear in
his own family so as to save the nec-
essity of sending his children to Har-
vard. It was the course adopted by
Benton, I think he had not a child
'that he did not educate himself.
Mr. MASON. Now Mr. Chairman,
for a single moment I desire to ex-
pose the speciousness of what has
been enlarged upon. When the gen-
tleman talks about men educating
their ,own children and at the same
time delving into the knowledge of
the law, he talks what he knows in
his heart has not the slightest foun-
dation in truth. It is not for myself
I speak, it is for every property hold-
er in this state. It is sir, for the life,
liberty of person and the security of
character, and sir, let me say, men
may talk as they may but hunger is a
dangerous counselor, and to place a
judge in a position where he is
straightened in his money circum-
stances at every crook and turn of
life is most dangerojis for the securi-
ty of social order. And sir, were I
to step aside and travel over this
whole field and ask what you pay
your representatives and senators in
congress. What ability, learning
and experience do they bring to bear
that oversteps and outrides that
brought to the bench by my learned
associate from Douglas (Mr. Lake).
You pay those men $5,000 or $10,-
000 a year with less ability, learn-
ing and experience, do less for the
public safety, who touch not the
security of character or person
and yet that is not too much, and yet
these gentlemen stand here to plead
for penurious salaries for the very
men that are laying the foundations
of social order and law. Let us pay
in proportion to the services render-
ed. Will any gentleman tell me from
the Douglas delegation; will that
gentleman himself tell me that Jus-
tice Lake has not earned for this
state at least $5,000 per year ever
since he has adorned the bench in
the second circuit. If there is a man
that will say that, let him stand in
his place and speak, and it is not.
;h»
SALAKIF.S OF SUPREME COURT
Thursday 1
MASON-ESTABROOK
lJuly27
Mr. Chairman, that I would give sala-
ries to cdiuate my children at Har-
vard. No. si:-. I would not do it if
I could. I would not dwarf the
mind any more than I would the
body. I would learn them in the
school of toil as well as in the school
of culture. When gentlemen resort
to such specious and lame arguments
as this it becomes me to expose the
utter fallacy of the principle they
contend for. Why, put in the bal-
ance, weigh the services of this gen-
tleman I have alluded to against your
senators and congressmen; against
your governor, or against any of
the.«e men, r.nd tell me if he has not
toiled night and day, early and late,
to establish firm and secure the
rights of property, and life and
character, and it is by his efforts that
people of today retire tonight secure
in the possession of their property.
And yet, you pay $3,000 for one,
and $10 000 for the other! Now, sir,
I would not go to the extreme on
either side. I say the people, every-
where, demand that these judicial of-
ficers be paid sufficient to keep their
families and libraries, and not that
they shall become teachers of infants
schools: but that they shall study
night and day to acquire a knowl-
edge of the law. Besides, sir, what
man. gentlemen of this convention,
will do that unless you do pay him.
You can get men for $3,000 a year,
who will turn infant school teachers
for six months of the year; but that
Is not what the people demand. They
want the man that shall be teacher
of himself in a knowledge of the law
for the twelve months of the year. I
simply make these remarks to ex-
pose the inherent fallacy of the gen-
tleman's argument. He knows that
no men are born lawyers. It is a
knowledge only accomplished by con-
stant toil. One other fallacy, and
it was amusing to me — a gentleman
who knows the law, and knows that
no .iury in the land has any right to
declare the law, they find and de-
termine the facts. They take the law
from the oracle of the law, the judge
speaking from the bench
Mr. ESTABROOK — Not in privy
cases.
Mr. MASON. — Aye, in every case,
for them to override the law and
trample the instructions of the court
under their feet is to violate their
oaths. This they have the physical
ppwer to do. They always have had
that power. But they have no legal
right to do so. So says Justice Story,
in a note in Greenleaf on Evidence;
so says Marshall and so says Kent,
and they ought to know about as
much about the law in this regard as
the gentleman from Douglas. And
no law writer has ever said anything
else, but that they have the physical
power to disregard the law as declar-
ed by the court, but not a legal right
to do. If their salaries could do it I
would establish a rule of law that
should be just as stable and fixed as
the laws of nature which should be
a rule of right changed only to meet
the wp.nts of society in its progres-
sive advance to that better day when
all shall know and do the right; that
should be as certain as the decrees of
Nature itself. And to do this I would
have no infant school teachers. I
would have a man that devoted his
SALARIES OF SUPREME COLtRT
91
Thursday]
HASCALL— STRICKLAND-BOYD
[July 27
whole time to study of the law and if
he wanted to teach infant schools,
and read psalms and sing hymns, I
would not want him for my judge.
Mr. HASCALL. I move that the
committee rise, report progress , and
ask leave to sit again.
The motion was not agreed to.
The CHAIRMAN. The question
occurs on the amendment of the gen-
tleman from Douglas (Mr. Mander-
son.)
Mr. MAXDERSOX. I withdraw it.
The CHAIRMAN. The question
now is on the amendment of the gen-
tleman from Douglas (Mr. Boyd),
making the salaries of the judges of
the supreme court $4,000, and the
judges of the district courts $3,000.
Mr. STRICKLAND. I call for a
division of the question before the
vote is taken.
The CHAIRMAX. The chair will
state that the amendment of the gen-
tleman from Douglas does not pro-
pose to change the salaries of the
judges of the district courts.
Mr. STRICKLAND. I understand
that the question ought simply to he
on the salary of the supreme judges.
Mr. MANDERSON. Let me sug-
gest. I think we ought all to have
the right to vote first on the salary
of the supreme judges, and then up-
on the district judges.
The CHAIRMAX. The chair will
state that this only relates to the
salary of the supreme judges.
The committee divided and the
motion was lost by 22 to 26.
The CHAIRMAX. The question is
upon section thirteen, as reported by
the committee.
Mr. STRICKLAXD. T move to
amend by inserting $3,500 instead
of $3,000, to apply to supreme
judges.
Mr. BOYD. I move an amend-
ment to the amendment, to strike out
$3,000 in the first line and insert
$3,500.
Mr. STRICKLAXD.
difference?
What is the
Mr. BOYD. Mine refers to both;
yours only to supreme judges.
The motion to make the salary of
the supreme judges $3,500 was
agreed to.
Mr. KIRKPATRICK. I move the
committee do now rise, report pro-
gress, and ask leave to sit again.
The motion was not agreed to.
Mr. WILSOX. I move that the
section as amended be now adopted.
Mr. GRAY. I move one further
amendment. That after the words
"district courts," in the first line,
"shall each receive a salary of $3,-
500."
Mr. Gray's amendment was not
agreed to.
Mr. BOYD. I move to strike out
"$3,000" and insert "$2,500." I am
in favor of small salaries, if there is
to be this trouble.
U2
SALARIES OF SUPREME COURT
Thursday]
K[RKPATRICK-ROBINSON-WAKELEY
[July 27
Mr. STRICKLAND. I hope the
gentleman will not lose his temper.
The motion of Mr. Boyd was not
agreed to.
Mr. LEY. I move the committee
rise, report progress, and ask leave
to sit again.
Mr. KIRKPATRICK. I move to
insert the words "increase or."
The CHAIRMAN. The amend-
ment offered by the gentleman from
Cass is to insert the words "increase
-or."
Mr. KIRKPATRICK. Mr. Chair-
man. It seems to me provision
should be made that salaries should
not be increased.
Mr. ROBINSON. Mr. Chairman.
I understand there is a provision
somewhere which provides for a re-
vision of all salaries of officials. I
think this is a better way to regulate
the matter than to do as we are do-
ing.
The CHAIRMAN. The question is
■upon the amendment of the gentle-
man from Cass (Mr. Maxwell) to in-
sert the words "increase or."
The amendment was agreed to.
Mr. WAKELEY. Mr. Chairman. I
"Wish to move an amendment by strik-
ing out the words, in the second line,
"until otherwise provided" and in-
sert, "unless increased." The sec-
tion now reads that the judges shall
receive the salary which we have
fixed until otherwise provided by
law. Under that law it would be.
unquestionably, within the province
of the legislature to diminish; to
that I am opposed. I would not give
the legislature the authority to di-
minish a salary which we have fix-
ed; in other words, if a minimum is
adopted the salary which we have
fixed shall be the minimum, and
while the legislature may increase
it, it cannot diminish. I think the
committee will agree to that.
Mr. WEAVER. Mr. Chairman. I
move the committee rise, report pro-
gress, and ask leave to sit again.
The motion was agreed to.
Mr. McCANN. Mr. President. The
committee have had under consider-
ation the report of the judiciary
committee and beg leave to report
progress and ask leave to sit again.
Adjournment.
Mr. LEY. Mr. President. I move
we adjourn until two o'clock.
The motion was agreed to.
So the convention (at twelve
o'clock and twenty-two minutes)
adjourned.
Afternoon Session.
The convention met at two o'clock
and was called to order by the presi-
dent.
Engrossment.
Mr. REYNOLDS. Mr. President.
Your committee on engrossment, beg
leave to report that they have ex-
amined the Bill of Rights and find It
correctly engrossed.
EIGHTS OF SUFFRAGE
93
Thursday^
MAXWELL— MOORE— MYERS
[July
Rights of Suffrage.
Mr. MAXWELL. Mr. President.
Your committee on Rights of Suffrage
to whom was recommitted the article
on rights of suffragei, beg leave to re-
port that they have to report that
they have had the same under consid-
eration, and report the same back
without any change, and ask that it
be adopted..
The report was referred to the
committee of the whole.
The following is, the report.
Section 1. Every male person of
the age of tewenty-one years or up-
wards, belonging to either of the fol-
lowing classes who shall have resid-
ed in the state, county, precinct and
ward for the time provided by law
shall be an elector.
First.
States.
Citizens of the United
Second. Persons of foreign birth
who shall have declared their inten-
tion to become citizens conformably
to the laws of the United States on
the subject of naturalization.
Sec. 2. The legislature may ex-
tend by law, the right of suffrage to
persons not herein enumerated, but
no such law shall be in force until
the same shall have been submitted
to a vote of the people at a general
election, and approved by a majority
of all votes cast on that question
at such election.
Sec. 3. No person under guardian-
ship, non compos mentis or insane,
shall be qualified to vote, nor shall
any person convicted of treason or
felony unless restored to civil rights.
Sec. 4. No elector shall be deemed
to have lost his residence in the state
by reason of his absence on business
of the United States, of this state, or
in the military or naval service of the
United States..
Sec. 5. No soldier, seaman or
marine in the army or navy of the
United States shall be deemed a resi-
dent of this state in consequence of
being stationed therein.
Sec. 6. Electors shall in all cases,
except treason, felony or breach of
the peace, be privileged from arrest
during their attendance at elections,
and going to and returning from the
same. And no elector shall be oblig-
ed to do military duty on the days of
election, except in time of war or
public danger.
Sec.
lot.
7. All votes shall be by bal-
3Iiscellaneous Corporations.
Mr. MOORE. Mr. President. I
would offer a report from the com-
mittee on Miscellaneous Corpora-
tions.
The secretary read the report as
follows:
(No Copy.)
The report was read the second
time by its titlo, ordered printed and
referred to the committee of the
whole.
Mr. MYERS. Mr. President. I
move the convention proceed to the
consideration of the Bill of Rights
to prepare it for its third reading
and adoption.
The motion was agreed to.
The PRESIDENT. The article
will be read the third time and put
upon its passage.
k
H-l
JULL OF RIGHTS
Thursday I
[July
The secretary read the article as
follows:
THE CONSTITUTION OF THE
STATE OF NEBRASKA.
PREAMBLE.
We the people of the State of Ne-
braska, srateful to Almighty God for
the civil, political and religious lib-
erty which He hath so long permit-
ted us to enjoy and looking to Him
for a blessing upon our endeavor to
secure and tr-.\nsmit the same unim-
paired to succeeding generations, in
order to form a more perfect govern-
ment, establish justice^ insure domes-
tic tranquility, provide for the com-
mon defence, promote the general
welfare, and secure the blessings of
liberty to ourselves and posterity do
ordain and estnblish this constitu-
tion for the state of Nebraska.
ARTICLE 1ST.
BILL OF RIGHTS.
Sec. L All men are by nature
free and independent and have cer-
tain inherent and inalienable rights,
among these are life, liberty, and the
pursuit of happiness. To secure
these' rights and the protection of pro-
perty governments are instituted
among men deriving their just pow-
ers from the consent of the gov-
erned.
Sec. 2. No i)erson shall be de-
prived of life, liberty, or property,
without due process of law.
Sec. o. The free exercise and en-
joyment of religious profession and
worship without discrimination shall
forever be guaranteed; and no per-
son, shall be denied any civil, or po-
litical right, privilege or capacity on
account of his religious opinions, but
the liberty of conscience hereby se-
cured shall not be construed to dis-
pense with oaths or affirmations, ex-
cuse acts of licentiousness or justify
practices inconsistent with the peace
and safety of the state. No person
shall be required to attend or sup-
port any ministry or place of wor-
ship nor shall any preference be giv-
en by law to any religious denomi-
nation or mode of worship.
Sec. 4. Every person may freely
speak, write and publish on all sub-
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth when published with good
motives and for justifiable ends, shall
be a sufficient defence.
Sec. 5. The right of trial by jury
as heretofore enjoyed shall remain
inviolate, but the trial of civil cas-
es and misdemeanors before justices
of the peace and inferior magistrates
by a jury of less than twelve men
may be authorized by law.
Sec. G. The right of the people to
be secure in their persons, houses,
papers and effects against unreason-
able searches and seizure shall not
be violated and no warrant shall is-
sue without probable cause supported
by affidavit particularly describing
the place to be searched and the per-
sons or things to be seized.
Sec. 7. All persons shall be bail-
able by sufficient surety except for
treason and murder where the proof
is evident or the presumption great,
and the privilege of the writ of ha-
beas corpus shall not be suspended
unless where in case of rebellion or
invasion the public safety may re-
quire it.
Sec. 8. No person shall be held
to answer for a criminal offense ex-
cept in cases in which the punish-
ment is by fine or imprisonment,
otherwise than in the penitentiary,
in cases of impeachment and in cases
arising in the army and navy or In
the militia when in actual service
in time of war or public danger un-
less on a presentment or indictment
of a grand jury or information of a
BILL OF RIGHTS
95
Thursday]
[July 27
public prosecutor and provisions
shall be made by law for the impan-
nelling of grand juries whenever the
respective courts or the judges shall
order.
Sec. 9. In all criminal prosecu-
tions the accused shall have the right
to appear and defend in person and
by counsel, to demr.nd the nature*
and cause of the aecusation and to
have a copy thereof, to meet the wit-
nesses face to face, and to have pro-
cess to compel the attendance of wit-
nesses in his behalf, and a speedy
public trial by an impartial jury of
the county or district in which the of-
fense is alleged to have been com-
mitted.
Sec. 10. No person shall be com-
pelled in any criminal case to give
evidence against himself, or be twice
put in jeopardy for the same of-
fense.
Sec. 11. All penalties shall be
()roportioned to the nature of the of-
fense and no conviction shall work
corruption of blood or forfeiture of
estate, nor shall any person be trans-
ported out of the state for any of-
fense committed within the same, nor
shall cruel and unusual punish-
ments be inflicted.
Sec. 12. No person shall be im-
prisoned for debt arising out of or
founded on a contract express or im-
plied, except in case where there is
strong presumption of fi'aud.
Sec. 13. Private property shall
ever be held inviolate but subservient
to the public welfare. When taken
or damaged in time of war or other
public exigency imperativelj' requir-
ing its immediate seizure or for the
purpose of making or repairing roads
which shall be open to the public
without charge, a compensation shall
be made to the owners in money and
in all other cases a compensation shall
be first made in money or first se-
cured by a deposit of money. Such
compensation shall in every case be
without deduction for benefits to any
property of the owner and when not
made by the state shall be assessed
by a jury in such manner as shall be
prescribed by law. The fee of lands
taken for railroad tracks without
the consent of the owners thereof
shall remain in such owners subject
to the use for which it was taken..
Sec. 14. No ex post facto law, or
law impairing the obligation of con-
tracts or making any irrevocable
grant of special privilege or immuni-
ties shall be passed.
Sec. 15. The military shall be
in strict subordination to the civil
power.
Sec. IG. No soldier shall in time
of p?ace be quartered in any house
without the consent of the owner,
nor in time of war except in the man-
ner prescribed by law.
Sec. 17. The people have a right
to assemble in a peaceable manner to
consult for the common good, to make
known their opinions to their repre-
sentatives and to apply for a redress
of grievances.
Sec. 18. All elections shall be
free and there shall be no hindrance
or impediment to the right of a
qualified voter to exercise the elec-
tive franchise.
Sec. 19. Treason against the
state shall consist only in levying war
against the state or in adhering to
its enemies giving them aid and
comfori. No person shall be convict-
ed of treason unless on the testimony
of two witnesses to the same overt
act or on confession in open court.
Sec. 20. The writ of error shall
be a writ of right in all cases of fel-
ony and in all capital cases shall
operate as a supersedeas to stay the
execution of the sentence of death
until the further order of the su-
preme court in the premises.
Sec. 21. The privilege of th©
•.♦G
BILL OF RIGHTS
Thursday]
[July
debtor to enjov the necessary com-
forts of life shall be recognized by
whoU'sonie laws exempting a reason-
able amount of property from seiz-
ure or siile for the payment of any
debts or liability.
Sec. 2 2. Aliens who are or may
hereafter become bonafide residents
of this state, shall enjoy the same
rights in respect to possession, enjoy-
ment and inheritance of property as
native born citizens.
Sec. 23. All courts shall be open
and everv person for an injury done
him in his land, goods, person or
reputation, shall have remedy by due
course of law, and justice adminis-
tered without denial or delay.
Sec. 24. A frequent recurrence
to the fundamental principles of
civil government is absolutely neces-
sary to preserve the blessings of lib-
erty.
Sec. 25. The powers of the govern-
ment of this state are divided into
three distinct departments, the leg-
islative, executive and judicial, and
no person or collection of persons
being one of these departments shall
exercise any power properly belong-
ing to either of the others except as
herf'inafter expressly directed or
permitted.
Sec. 2C. This enumeration of
rights shall not be construed to im-
pair or deny others retained by the
people and all powers not herein
delegated remain with the people.
The PRESIDENT. This is the
third reading of the bill. The ques-
tion is on its adoption. The secre-
tary will call the roll.
The secretary called the roll and
the President announced the result:
Yeas, 45, as follows:
YEAS.
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirk Patrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Mason,
Manderson,
Maxwell,
Moore,
Myers,
Neligh,
Philpott,
Newsom,
Price,
Reynolds,
Scofield,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,
Abbott.
Rallard,
Boyd,
Campbell,
Curtis,
Eaton,
ABSENT OR NOT VOTING.
Cassell Robinson,
Grenell, Spiece,
Parchin, Mr. President — 7.
Parker,
The PRESIDENT. Tho question i&
on the adoption of the preamble.
The Preamble was adopted.
The PRESIDENT. The question
now is on referring the article to
the committee on revision and ad-
justment.
The article was so referred. NEM
CON.
Committee of the Whole.
Mr. GRAY. I move that the con-
vention go into committee of the
whole on the article entitled judici-
ary.
The motion was agree to, so the
convention went into committee of
the whole. Mr. McCann in the chair.
The CHAIRMAN. The question
is upon the amendment of the gen-
PERQUISITES FOEBIDDEN JUDGES
97
Thursday]
HASCALL— WAKELY
[July 27
tleman from Douglas to strike out
the words "until otherwise provid-
ed," in the second line, and insert
"unless increased by law."
The committee divided and the
motion was not agreed to.
The thirteenth section as amended
was adopted.
The secretary read the next sec-
tion as follows:
Sec. 14. No judge of the supreme
or district courts shall receive any
other compensation, perquisite or
benefit in any form whatsoever, nor
perform any other than judicial du-
ties to which may belong any
emoluments.
Mr. LAKE. If the section con-
veys the idea that the committee had
in view, it is that the legislature
cannot provide that judges of the
supreme courts shall perform some
trivial duty as an excuse for giv-
ing a large increase of com-
pensation. There have been endeav-
ors, in times past, to provide that
judges and other oflBcers may per-
form some duties outside their legiti-
mate duties, and as a compensation
therefor provide a large increase of
pay.
The fourteenth section wa's adop-
ted.
Mr. HASCALL. Mr. Chairman,
yesterday we passed over a section
for the time being; and I propose now
to take it up. It was the plan for
dividing the state into districts.
Mr. WAKELEY. Mr. Chairman.
I do not see how that can be offered
without permission of the commit-
tee, after we have once passed. We
are entitled to go through the article
and I hope we shall do so.
Mr. HASCALL. This was only
passed over for the time-being. Since
then the matter has been thought of
and plans matured. And as we
have to finish it before we report it
back to the convention, it would be
well enough to take it up now. I
therefore move that we take up that
article now.
Mr. ESTABROOK. The true prac-
tice is, I believe, to pass through,
section by section, and when we have
concluded, that the bill is open to
amendment in all its parts. And I
would suggest to my colleague
whether that is not the best way to
reach it?
Mr. HASCALL. We have neglect-
ed to comply with that rule now,
and by general consent we passed
by "for the time-being." This section
has not been considered and acted
on. Before the whole is taken up,
we must consider every section. We
have not considered every section.
Mr. KIRKPATRICK. I hope the
convention will proceed to the con-
sideration of this report, and we will
return to the section. There was a
reason why we postponed it. The
gentleman says he has a plan: Others
may not.
The committee divided, and the
motion was not agreed to.
The Chairman read section fifteen,
as follows:
Sec. 15. There shall be elected
in and for each organized county on©^
98
COUNTY JUDGES
Thursday]
HASCALL-KIRKPATRICK-THOMAS
[July 27
judge, who shall be judge of the
county coiMi of such county, whose
term of office shall be two years.
Mr. THOMAS. Mr. Chairman. I
move to amend this section^ by ad-
ding "but the legislature may create
districts of two or more contiguous
counties, in each of which shall be
elected one judge, who shall take the
place of and exercise the powers of
jurisdiction of county judges in such
districts." I will state that that is
copied from the Illinois constitu-
tion.
Mr. LAKE. I do not know that I
am opposed to this proposition to
amend. I will say that at one time
a majority of the judiciary com-
mittee adopted this precisely, but up-
on a re-consideration of the matter
it was stricken out. The committee
was about equally divided as to the
propriety of the amendment offered
by the gentleman from Nemaha.
Mr. THOMAS. I will state that
the object is that in cases where a
county has not a sufficient population
to justify the organization of a court
in that county, the legislature may
provide that several counties may be
united, and make one district, and
have one county judge to pi-eside
over that district.
The committeee divided and the
amendment was agreed to.
Mr. WAKELEY. Mr. Chairman.
I move to strike out the word "two"
in the first line and insert "four."
Mr. MYERS. Mr. Chairman. I
move to strike out the word "four"
•and insert "nine." so that it shall
read "nine years" instead of "four
years."
The CHAIRMAN. The question is
upon the amendment to the amend-
ment of the gentleman from Douglas.
The amendment to the amendment
was not agreed to.
The CHAIRMAN. The question
now recurs upon the amendment.
Mr. WAKELEY. Mr. Chairman.
I think that the term of office of a
judge of a court of record, as these
county courts will be, should be not
less than four years. It will be remem-
bered that you make these county
courts, courts of record, and that you
give them considerable jurisdiction,
that to a considerable extent they take
the place of district courts. Every-
body knows that if a judge is at all
fit for his office he is a better judge
at the end of two years than before.
I would not make the term of office
so long that the people cannot get
rid of a poor judge, if they should
elect a poor one, nor would I have
the judge constantly changing. I
think four years is a very just medi-
um between the two extremes.
Mr. HASCALL. Mr. Chairman.
There is no reason why we should in-
sert an amendment like that in the
constitution. It will create confusion
and will clash with the election of
judges as provided by our present
law.
Mr. GRIGGS. Mr. Chairman. I
hope the amendment offered by the
gentleman from Douglas (Mr. Wake-
ley) will not prevail. If we have a
good judge, we can re-elect him and
JUKISDICTION OF COUNTY COURTS
99
Thursday]
HASC ALL— GRIGGS
[July 27
if not we can get rid of him at the
end of two years. Two years is the
term of ofSce of the other county of-
ficers. Suppose, for instance, there
was two or more counties joined into
one district and the term of office of
the judge of that district had three
years to run, when it was found that
the county was fully up so that each
county was entitled to its judge. It
seems to me that it places things
in a very bad box. I believe a term
of two years will suit the people in
the western counties much better
than four years. If we succeed in
electing a good judge we can re-elect
him. I hope that the amendment
to make his term of office four
years will not prevail.
The CHAIRMAN. The question
is upon the amendment to strike out
two years and insert four years.
The amendment was not agreed to.
The CHAIRMAN. The question is
upon the adoption of the section.
The 15th section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 16. County courts shall be
courts of record, and shall have ori-
ginal jurisdiction in all matters of
probate, settlement of estates of de-
ceased persons, appointment of guar-
dians and settlement of their ac-
counts, in all matters relating to ap-
prentices, and in proceedings for the
collection of taxes and assessments.
and such other jurisdiction as may be
given by general law; provided, that
in counties having a population of
three thousand and upwards, the leg-
islaturv5 may confer upon said courts
jurisdiction in sales of real estate
by executions, administrators and
guardians. But they shall not have
jurisdiction in cases of felony, nor
in actions in which the title to real-
estate is sought to be recovered, or
may be drawn in question, nor in ac-
tion on mortgage, or on contracts
for the conveyance of real estate, nor
when the debt or sum claimed shall
exceed five hundred dollars.
Mr. KIR KPATRICK. Mr. Chairman
I would suggest that there is a mis-
take in the sixth line; the word
"executions" is substituted for the
word "executors."
Mr. THOMAS. That is a typo-
graphical error.
The CHAIRMAN. It will be cor-
rected by common consent. The
word "sales" in the same line should
read "sale." That mistake will also
be corrected in the same way.
Mr. THOMAS. Mr. Chairman. It
seems to me a constitution should be
clear and explicit and I think this
section is not quite so much so as it
might be. I therefore move to
amend by striking out the words
"cases of felony" in the 7th line, and
inserting the words "criminal ca-
ses in which the punishment may ex-
ceed six months imprisonment or a
fine of over $500."
The CHAIRMAN. The question
is upon the amendment of the gen-
tleman from Nemaha (Mr. Thomas.)
Mr. LAKE. Mr. Chairman. The
object in using the word "felony"
was to enable the legislature to con-
fer such jurisdiction, in criminal
cases upon these courts as they
should see fit, but in no case
to give these courts jurisdic-
100
.lURISDICTION OF COUNTY COURTS
Tharsday!
THOMAS-r'AKE-SCOFMELD
July 27}
tlon when the punishment is confine-
ment in the penitentiary, but not
greater than that. I think the word
"felony" indicates that class of cases
when the punishment is by imprison-
ment in the penitentiary at least.
Mr. THOMAS. Mr. Chairman. I
understand that the common law
definition of the word felony is "a
crime which is punishable by for-
feiture of goods and chattels. When
there is no statute, we have to re-
sort to the common law to find the
definition. It seems to me the sec-
tion is defective and we should put
some words to this effect, stating
what the punishment shall be.
Mr. LAKE. Mr. Chairman. I
would like to ask the gentleman if
the word "felony" is not defined
by our own law, and further, if un-
der our present form of government
we have any such thing as "for-
feiture of estate."
Mr. THOMAS. We have not, but
when we have no statute upon it we
cannot find out the definition of
terms without resorting to the com-
mon law.
The CHAIRMAN. The question is
upon the amendment of the gen-
tleman from Nemaha (Mr. Thomas.)
The amendment was agreed to.
Mr. SCOPIELD. Mr. Chairman. I
move to strike out in the ninth line
the words "five hundred" and insert
"one thousand."
The committee divided and the
amendment was not agreed to.
The CHAIRMAN. The question is
on the adoption of the section.
Section sixteen was adopted.
Mr. WAKELEY. Mr. Chairman.
Before the next section is read I de-
sire to offer an amendment to be
adoptetd as a separate section.
The Chairman read
ment as follows:
the amend-
"Appeals to the district courts
from the judgment of the county
courts shall be allowed in all crimi-
nal cases on application of the de-
fendant, and in all civil cases in
which the amount in controversy
does not exceed one hundred dollars
and in such other cases as the legis-
lature may provide."
Mr. GRIGGS. I move to amend
the section offered by the gentleman
from Douglas (Mr. Wakeley) by
striking out the words "one hun-
dred" and inserting "twenty-five."
The amendment was agreed to.
Mr. SCOPIELD. Mr. Chairman. I
move to insert the words "upon the
application of either party," in civil
cases.
Mr. GRIGGS. Mr. Chairman. Will
that interfere with the giving of ap-
peal bonds in civil cases.
Mr. WAKELEY. I will state, Mr.
Chairman, the only object of the
section is to make it obligatory on
the legislature to provide for the
taking of appeals.
The CHAIRMAN. The question
is on the adoption of the section (11
will be section 17) as amended.
APPEALS— JUSTICE JURISDICTION
101
Thursday]
W A KELEY— GRIGGS — S COFIELD
[July n
The committee divided
section was adopted.
and the
The Chairman read the next sec-
tion as follows:
Sec. 18. Justices of the peace and
police magistrates shall be elected in
and for such districts, and have and
exercise such jurisdiction as may be
provided by law.
Mr. WAKELEY. Mr. Chairman. I
move to amend by adding a proviso.
The Chairman
ment as follows:
read the amend-
"Provided that no justice of the
peace shall have jurisdiction of any
civil cause where the amount in con-
troversy shall exceed one hundred
dollars nor in a criminal cause where
the punishment may exceed three
months imprisonment, or a fine of
over one hundred dollars, nor in any
cause involving a title to real es-
tate."
Mr. ESTABROOK. Mr. Chairman.
I would like to inquire whether a
justice of the peace ever has ju-
risdiction of such cases, if not, where
is the need of this provision?
Mr. PHILPOTT. Mr. Chairman. I
move to amend the amendment by
adding the following:
"Except in actions for trespass and
action of unlawful entry and forcible
entry and detainer."
Mr. MASON. Mr. Chairman. I
trust the amendment offered by the
gentleman from Lancaster (Mr. Phil-
pott) will not prevail, there can* be
no question as to that class of causes.
In no case where the matter of ti-
tle be involved can a court of jus-
tice act, nor can there be any pro-
bability of their undertaking to de-
termine the other questions; hence
it should not be interpolated in this
amendment. Neither in the action of
trespass can the title necessarily be
drawn into question. 1 cannot now call
to mind a question of trepass purely
where title is necessarily drawn
in question. Suppose I am owner
in fee of a piece of land another-
er man may have the present pos-
session of it, if I enter upon it I tres-
pass on his rights; my plea of title
has nothing to do with the determi-
natio n of trespass. I think the
amendment should not prevail.
Mr. PHILPOTT. I will withdarw
my amendment for the present.
Mr. LAKE. Mr. Chairman. I
think myself all the amondments that
have been offered to this section are
entirely useless, endeavoring to pro-
vide against something there is no
danger of. There never has been a
desire on the part of anybody to
confer upon the justices' court the
jurisdiction that is endeavored here
to guard against. No one has ever
proposed it. You might as well at-
tempt to provide in the constitution
that the sun should not roll back-
wards, rise in the west and set in
the east. No one contemplates con-
ferring any extraordinary jurisdic-
tion on justices of the peace. It
never was broached in the legisla-
ture, never has been anywhere, they
are considered an inferior court, not
a court of record, there is no danger
whatever of any diflBculty arising
from leaving the subject of justices'
jurisdiction entirely to the legisla-
ture, it has been so throughout all
102
JUSTICE COURT JURISDICTION
Thursday]
PHILPOTT-LAKE-HASCALL
[July 27
time within the life of the state of
Ohio, it is so, if I recollect right in
the state of Iowa, and it seems to
me if we take this section as it came
from the committee that it is ample,
leaving the jurisdiction with the leg-
islature of the state.
Mr. HASCALL. Mr. Chairman.
There are cases I conceive which
would be beneficial if left to the leg-
islature. We have a law on the
statute book now that makes it a
misdemeanor to cut timber on lands
of another and the jurisdiction is
given to justices of the peace. If the
defendant pleads not guilty that in-
volves the question of title to the
land, because the plaintiff to make
out his case must prove that the land
is his own and not the land of an-
other. It is a confirmation of ti-
tle on the one part and denial on the
other. I think the matter is safe in
the hands of the legislature. It is
generally understood that a magis-
trate's court i? an inferior court, and
no legislature would ever attempt to
make anything else out of them.
Mr. THOMAS. Mr. Chairman. I
agree with the gentleman who spoke
last that this matter should be left
to the legislature. It seems to me
the section should be amended so as
to except action for trespass for real
estate. I do not see any necessity for
an amendment concerning justices.
Mr. ESTABROOK. Mr. Chairman.
I suggest that we add "where a ti-
tle to real estate is in issue."
Mr. WAKELEY. I do not accept
the suggestion, I think it is right as
It Is. I only desire that this matter
shall be settled as is precisely right.
I do not see the consistency of estab-
lishing a county court as a court of
record and putting various limita-
tions upon its jurisdiction and then
leaving the legislature at liberty to
give justices of the peace any juris-
diction they see fit. Under this ar-
ticle as it stands it will be in the
power of the legislature to give jus-
tices of the peace jurisdiction super-
ior to that which we have conferred
upon county courts. Now if it is
really our intention to leave this
large jurisdiction to the legislature
then let us vote down the amend-
ment. What propriety or consistency-
is there in these limitations to the
legislature in respect to the jurisdic-
tion of county courts? We all under-
stood these county courts are super-
ior to justices of the peace and we
have found it necessary to limit the
jurisdiction of county courts which
are courts of record; which to a
considerable extent take the place
and exercise the power of district
courts. I do not say the legislature
would abuse the discretion but I do
say it is proper to set some bounds
upon the powers of the legislature in
respect to these inferior courts. The
question is whether you are to trust
entirely to the discretion of the legis-
lature, or put some limitation upon
them.
The committee divided and the
amendment was agreed to.
The CHAIRMAN. The question is
upon the section as amended.
The eighteenth section was adopt-
ed.
COUKT PRACTICE— IMPEACHMENT
103
Thursday]
WAKELEY
[July 27
The Chairman read the next sec-
tion, as follows:
Sec. 19. All laws relating to
courts shall be general and of uni-
form operation; and the organiza-
tion, jurisdiction, powers, proceed-
ings and practice of all courts of the
same class or grade, so far as regu-
lated by law, and in force and ef-
fect of the process, judgments and
decrees of such courts severally, shall
be uniform.
The section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 20. The legislature may, for
cause entered on the journals, upon
due notice and opportunity for de-
fence, remove from office any judge
of the supreme or district courts,
upon concurrence of three-fourths of
all the members elected of each
house. All other officers in this ar-
ticle mentioned shall be removed
from office on prosecution and final
conviction for misdemeanor in office,
in such manner as may be provided
by law.
The section was adopted.
The Chairman then read the next
section, as follows:
Sec. 21. All judges of courts of
record, inferior to the supreme court,
shall, on or before the first day of
June of each year, report in writing
to the judges of the supreme court,
such defects and omissions in the
laws as their experience may suggest;
and the judges of the supreme court
shall, on or before the first day of
January of each year, report in writ-
ing to the governor such defects and
omissions in the constitution and
laws as they may find to exist, to-
gether with appropriate forms of bills
to cure such defects and omissions
in the laws. The judges of the seve-
ral district courts shall report to the
next legislature the number of days
they have held court in each of the
several counties composing their re-
SDPrtivft rli«trir>tc. rlnriner tba nrA-
ceding year.
[The section was adopted.]
The Chairman read the next sec-
tion, as follows:
Sec. 22. All officers provided for
in this article shall hold their offices
until their successors shall be quali-
fied; and they shall respectively re-
side in the district, county or pre-
cinct for which they shall be elected
or appointed. The terms of office of
all such officers, when not otherwise
prescribed in this article, shall be
two years. All officers where not
otherwise provided in this article,
shall perform such duties and receive
such compensation as may be provid-
ed by law.
The section was adopted.
The Chairman read the next sec-
tion; as follows.
Sec. 2 3. In case the office of any
judge of the supreme court, or of any
district court shall become vacant
before the expiration of the regular
term for which he was elected, the
vacancy shall be filled by appoint-
ment by the governor until a succes-
sor shall be elected and qualified;
and such successor shall be elected
for the unexpired term at the first
! annual election that occurs more than
j 30 days after the vacancy shall have
happened. Vacancies in all other
elective offices provided for in this
article, shall be filled by election;
but where the unexpired term does
not exceed one year, the vacancy may
to be filled by appointment, in such
manner as the legislature may pro-
vide.
The section was adopted.
104 JTDICIAL TERMS— VACANCIES— PKOCESS
Thursdayl
WOOLWORTH
[July 27
The Chairman read the next sec-
tion, as follows:
Sec. 24. All process shall run In
the name of the People of the State
of Nebraska, and all prosecutions
shall be carried on In the name of
the people of the State of Nebraska,
and conclude against the peace and
dignity of the same.
The section was adopted.
Mr. WOOLWORTH. Mr. Chair-
man. I desire to correct a section
to provide for commencement
fees. It is this — "the legislature
shall impose a tax on all civil suits
commenced or prosecuted in courts
of record, which shall constitute a
fund to be applied towards the pay-
ment of the salaries of judges." Mr.
Chairman, I do not propose to add
anything this, afternoon to what I
said this morning upon this subject.
But I hold in my hand the report of
the auditor showing the amounts of
money received by the state from
these sources. It amounts, in all, to
the sum of $17,855. The amount
received in the Second Judicial Dis-
trict was $9,580, a sum, I think,
sufficient, or nearly suflBcient, to pay
the salary of the judge of that dis-
trict during the whole time he sat
upon the bench. I have not had time
to compare the sums received from
the other districts. In the 1st Judicial
District was $5,625. Now, this is a
source of revenue which I would
save by a proper provision in the
constitution.
Mr. STEVENSON. I move an
amendment to the amendment — th.a,t
Is to except county courts.
Mr. WOOLWORTH. I accept the
Rmendmont.
Mr. ESTABROOK. Now I move
an amendment to the amendment by
striking out the words "or prosecut-
ed." If a judgment is taken by an
individual on default in order to cor-
rect errors, he takes an appeal, and
has to pay the initial fee as in the
original.
Mr. MYERS. Mr. Chairman. I
do not know that I understand this
provision offered by my colleague, or
that I am prepared to vote for it. I
do not think it right, or proper, or
expedient, that we should base the
salaries of the judges upon the
emoluments of their office and the
fees in courts. It is establishing the
principle that the higher the salaries
of the judge the higher should be
the fees for obtaining justice in our
courts. I do not make that a point,
but it may be made a point in the
mind of the public. I read in the bill
of rights "every person ought to find
a certain remedy in the laws for all
injuries and wrongs which he may
receive in his person, property or
reputation; he shall obtain by law,
right and justice, freely and without
being obliged to purchase it, com-
pletely and without denial, prompt-
ly and without delay." Now, we make
this money that is received in fees a
basis upon which to find a payment
of those salaries.
Mr. MANDERSON. A substitute
similar to it was stricken out, but
covering the same ground. Justice
should be dealt out without money
and without price. That was the
purport of the amendment which the
gentleman himself offered. I believe
the proposition is wrong in princi-
COURT COMMENCEMENT FEES
105
Thursday]
STEVENSON— MYERS-TOWLrE
[July 27
pie, and for that reason, I hope it
will not prevail. I certainly shall
not vote for it, if I am the only man
in this committee to oppose it.
Mr. TOWLE. Mr. Chairman. If it
is possible, I like to have a thing call-
ed by its proper name. This is sim-
ply class taxation. It works against
justice; against the rights of parties.
I undertake to say that this $9,000
of revenue which it seems has been
raised in this way, has been $9,000
taken out of the pockets of the law-
yers of this state. Parties may be
too poor to pay the commencement
fees and too proud to make the nec-
essary affidavit to that effect in order
to be able to bring suit without pay-
ing the fees. Parties have come to
me for legal advice, with regard to
collecting a debt, for instance, and
when asked for a retainer fee, I have
been told they had no money to pay
down; then when told that upon
making this affidavit of poverty, they
could bring suit, they have told me
that they were poor, but too proud to
do this, consequently they were put
to unusual exertions, and in many
Instances unjust sacrifices, in order
to meet the demands of this tax. If
you can put on a tax fee of $5, why
': not put on a tax of $500? You have
just as much right. After having
stated that people shiall have justice
in this state without money and
without price you have just as much
right to place a tax upon them in this
way of $500 as $5.
There are places where this com-
mencement fee will work great in-
1 jury. I do hope this convention
will not endorse it. I have been ask-
ed time and time again to use my in-
fluence to have this fee stricken out.
Other states have nothing of the kind
in their constitutions and why not
leave it to the legislature? Let us
place our own state, as we are ris-
ing in the scale of commonwealths
upon the same level of the other
states of this Union — not one of
them has this unusual and improper
tax— It is but an advertisement of our
insignificance and poverty — It de-
stroys the proportion and symmetry
of our constitutional structure — the
other parts are noble, grand and com-
plete in their outlines — -while this is
but a broken turret — a shrivelled
limb on a healthy body.
Let justice be free and open —
don't put up a statue of the Goddess,
holding aloft the scales, yet peeping
from under tlie bandage over her
eyes, to discover the amount of gold
the suitor may have who kneels at
her shrine — the cause of him who
seeks the tribunals of justice, for the
reparation of his character, the re-
covery of his property, for damages
done by the bludgeon of the assaulter,
is the cause of the whole community.
For his case is but a precedent to
control the wicked or protect the
property of the community at large
— this proposition takes a wider
range than to affect the interests of
the individual suitor — suppose the
legislative power shall pass such
laws as trample upon the sacred
rights of the minority (that minority
on behalf of which many gentle-
men upon this floor have grown elo-
quent) party spirit and the passions
of the hour run high — the whole ex-
106
COURT COMMENCEMENT FEES
Thursday 1
TOWLE-HASCALL-NEWSOM
Jul
ecutlve power of the state is brought
to bear to oppress the citizen — Now is
the time that demands some Hampden
to defend his rights and the rights of
the people — not because to obey the
law or pay the tax would ruin him or
the people financially, but because
to submit would debase him to a
slave. A man who steps forward in
this hour of peril and exigency is a
public benefactor and he alone
should not bear the burden of prose-
cuting his suit — therefore let the
judiciary be supported from the
general fund — not wrung from out
the depleted pockets of an injured
suitor who is driven to the courts for
the redress of wrongs already in-
flicted.
Mr. HASCALL. Mr. Chairman. I
move an amendment by striking out
the word "shall," in the first line,
and insert "may." I propose to get
this as little objectionable as pos-
sible.
Mr. NEWSOM. Mr. Chairman.
It may be this provision acts against
lawyers; it may be it prevents litiga-
tion; it may be it keeps cases out of
the courts. If this is so it is a bless-
ing to this country. I claim I am not
a lawyer, but I claim that I have as
much interest in this, as any lawyer
in this state. Upon what principle of
justice do you say that I shall pay a
portion of the expenses of the suit
of any man in our courts? What
right have 1 to say to the gentleman
from Richardson (Mr. Towle) that
he should pay part of the expenses
of my law suits when I go into the
courts? It is my judgment that
when a man goes into the courts, he
should pay the expenses. If a man
allows himself to be swindled, let
him pay for his experience. I can
see no bearing upon this case which
will affect the community. What
portion of the people of the state is
it that have law suits? Is it th*
greater part of the population or
the few? ' In my judgment it is the
few. I am opposed to this idea of
legislating for the benefit of the
three or four hundred lawyers in this
state. This would be for the benefit
of lawyers exclusively. Now there is
a provision by which if a man is too
poor to conduct his suits, they will
be attended to. If he is too proud to
take advantage of this, it is nothing
to me. I don't want to pay for this
pride. I am willing to help a poor
man, but I am not willing to help an
able man — one who is able to take
care of his own affairs. I never had
a law suit in my life, and I don't pro-
pose to have any if I can help it.
Now gentlemen, you propose to tax
me to pay your law suits, and I op-
pose the proposition.
Mr. TOWLE. Mr. Chairman. I
don't see any particular argument
in the gentleman's remarks, only
that he wants, when a man goes into
court, that he should pay for it. It
appears to me there is no argument
in it at all. I still oppose the system
of commencement fees. I believe it
is wrong in principle, and hope it
may be done away with.
Mr. PHILPOTT. Mr. Chairman. I
too am opposed to the adoption of
this section. The idea is a wrong
one, and the system is wrong. I ask
by what principle of justice shall we
say that those who are compelled to
go into courts to get their rights.
COURT CCMMENCEMENT FEES
107
Thursday]
NEWSOM— TOWLE— PHILPOTT
[July 27
should be compelled to pay the
judge for not only trying his casef,
but for other cases, which come be-
fore him. I think it has worked
great hardship.
Mr. ABBOTT. Mr. Chairman. I
believe that the most of the lawyers
here will sustain this amendment.
Mr. MOORE. Mr. Chairman. I
propose an amendment to that.
The Chairman read the amend-
ment as follows:
"Provided, When a person shall
make afadavit that he is too poor
to pay the commencement fee he
shall be exempted from paying such
fee."
Mr. WOOLWORTH. Mr. Chair-
man. I accept the amendment of the
gentleman from York (Mr. Moore.)
The CHAIRMAN. Gentlemen, the
chair is in doubt whether the amend-
ment offered by the gentleman from
Douglas (Mr. Hascall) to strike out
the words "shall" and insert the
word "may," has been put and (It
has not.)
The CHAIRMAN. Then the ques-
tion is on that amendment now.
The Committee divided and the
amendment was agreed to.
The CHAIRMAN. The question is
on the adoption of the section as
amended.
Mr. MASON. Mr. Chairman. Be-
fore this proposition is finally sub-
mitted to a vote I feel like saying
what I have to say on this matter. I
do not believe sir, that the tribunals
of justice are established or kept in
motion simply for those who em-
ploy them in litigation.
That man who brings a suit in
our courts, sometimes where only a
few dollars are in litigation, is often
the greatest benefactor of the state.
Take for instance the man who was
compelled to pay for the litigation
referred to by the gentleman from
Douglas (Mr. Woolworth) which
called forth from Chief Justice Mar-
shall and his associates a decision of
law for the whole country. In other
words which set a light on the ju-
'dicial hill of our land that casts its
rays over the whole people. That
man is sufficiently unfortunate in
being compelled to litigate to secure
his rights without being compelled
to pay a special tax for so doing. As
has been well said these judicial
courts have been established for
something more than the mere set-
tlement of litigation. They are to
speak the law for the whole people
of the state, to interpret that law by
which the whole people of the state
are to be governed. No sir, what
does the plaintiff in bringing suit
say? He says, "my rights have been
trampled on and I appeal to that law
which you, the people of the state,
have established for the safety of
your rights and mine." Now, sir, I
undertake to say that in the security
of individual rights rests the security
of the aggregate whole, and when it
is said he who dances should pay the
fiddler, but sir, in this case it is the
people of the whole state that dances.
It is the rights of the people of the
whole state that trembles in the bal-
ance whenever litigation is had in
our courts, and the whole state
should be moved to see that he has
his disenthroned rights, and sir, he
108
COURT COMMENCEMENT FEES
Thursday]
MASON-MYERS
[July 27
should not be taxed for that right.
Is it right? No sir, it is not in my
judgment. I ought to feel the same
interest in securing your legal rights
as my own, and if I don't so feel,
then sir, I disregard the words of
that greatest of law givers, the one
not born of earth, but of heaven,
who said "do unto others as you
would have others do unto you." It
seems to me we do violence to this
fundamental principle, and sir, for
these reasons I shall vote to lay the
whole amendment and section on the
table.
Mr. MYERS. Mr. Chairman. A
motion to lay on the table is not in
order in committee of the whole.
Mr. MASON. Indefinitely post-
pone.
Mr. MYERS. Neither is that mo-
tion in order, the only way we can
dispose of this is to vote it down.
Mr. WILSON. Mr. Chairman. I
have had a little experience in this
matter of paying commencement
fees and I say it is the greatest curse
that ever was placed upon any peo-
ple. You place that in your consti-
tution and I say the people of John-
son county will vote down your con-
stitution. I think it is a piece of
swindle, and I hope every honorable
gentleman upon this floor will vote
against it.
The CHAIRMAN. The question
is on the adoption of the proposed
section.
The section was not adopted.
Mr. PHILPOTT. Mr. Chairman.
T offer the following as a Separate
section:
"There shall be elected in and for
each judicial district in this state,
one district attorney whose term of
ofTice shall be two years. The duties
of the ofllce and salary shall be pre-
scribed by the legislature."
Mr. MYERS. Mr. Chairman. I
move to amend that the salary and
duties of the ofiice shall be regulated
by the legislature.
Mr. PHILPOTT. I accept the
amendment.
Mr. LAKE. Mr. Chairman. For
one I am opposed to the amendment
offered by the gentleman from Lan-
caster (Mr. Philpott). I am in fav-
or of leaving this subject of district
attorneys entirely to the legislature.
It may be possible that in a few years
it will be best to have prosecuting at-
torneys for some counties of the
state, at least in some of the larger
and more populous counties. In
some states they have adopted the
plan of prosecuting attorneys for
each county of the state but in a
state where so many counties have so
small a population as Nebraska, it is
best perhaps that district attorneys
be not provided. This matter has
been left to the legislature heretofore
and I think it is unwise to encumber
the constitution with useless provis-
ions. If it shall be found that the
system of district attorneys does not
work well, then of course the legis-
lature will be invested with the au-
thority to make a change. Leave it
entirely to the law making power,
and whatever system of states attor-
neys shall be thought best, or be
found best in practice, the legislature
undoubtedly will adopt. We have
had no reason for a provision of this
kind heretofore in our constitution
DISTRICT ATTORNEYS
109
Thursday]
WILSON-PHILPOTT— LAKE
[July 27
and what is the necessity now? Let
it remain as it has been in years past,
subject to the regulations of the law
making power. Most certainly the
legislatures are of sufficient intelli-
gence, of sufficient knowledge in
regard to the wants of the people
of the state, to regulate the matter
in such manner as shall conduce to
the best interests of the state. I see
no necessity for this provision; it is
worse than useless, because if the
system should be found to work ad-
vantageously there will be no reme-
dy, it being a constitutional provis-
ion, but if left as it is, it is subject
to the control of the law making
power and the wishes of the people
of the state.
Mr. PHILPOTT. Mr. Chairman. I
am decidedly in favor of county prose-
cuting attorneys but opposed to dis-
trict attorneys. I merely want the
matter voted upon.
The motion was not agreed to.
Mr. HASCALL. I have a propo-
sition to follow the word "follows"
in section ten.
The Chairman read the proposi-
tion as follows:
First District. The counties of
Richardson, Nemaha, Johnson, Paw-
nee, Gage, Saline and Jefferson.
Second District — The counties of
Otoe, Cass, Lancaster, Saunders, Sew-
ard and Butler.
Third District — The counties of
Douglas and Sarpy.
Fourth District — The counties of
Washington, Burt, Dodge, Gumming,
Colfax, Stanton, Madison, Wayne,
Dakota, Dixon, Cedar, Pierce, Ante-
lope, L'Eau Qui Court, and the coun-
ties and Territories lying due west of
L'Eau Qui Court
Fifth District — The counties of
Platte, Boone, Greeley, Howard, Hall,
Merrick, Polk, York, Fillmore, Thay-
er, Nuckolls, Clay, Hamilton, Adams,
Webster, Franklin, Kearney, Harlan,
Buffalo, Sherman, Dawson, Lincoln,
Cheyenne, and all other counties and
territory not included in any other
judicial district.
Mr. HASCALL. Mr. Chairman. In
preparing this I attempted to name
all the counties whose boundaries
have been defined by law, and for
fear that some county might have
been omitted, I say all other coun-
ties.
Mr. MYERS. I move to strike out
the word "country" wherever it oc-
curs, and insert the word "territory."
Mr. HASCALL. I accept the
amendment.
The committee divided and the
proposition was agreed to.
Mr. WAKELEY. Mr. Chairman.
There are two or three sections I de-
sire to have inserted at proper places
in the article. The first I move is as
follows:
The legislature shall provide by
law in what manner and in what
courts suits may be brought against
the state.
I move it be inserted as one of the
sections.
Mr. LAKE. It may be that the
gentleman has proposed this way of
taking the sense of the convention.
If there be a provision inserted in
the constitution authorizing the state
to be made a party defendant, that
the legislature will have that authori-
ty without any expresssed provision
in the constitution to provide where
those suits shall be brought. It
110
JUDICIAL DISTRICTS
Thursday]
PHILPOTT -HA SO ALL-LAKE
[July 27
seems to me better to insert this pro-
vision in some other article.
Mr. WAKELEY. Mr. Chairman.
As to the place where the section
shall be inserted I am not at all par-
ticular. It sems to me that the ar-
ticle on the judiciary is the appropri-
ate place for it. It relates to courts
— the right to make the state a de-
fendant in courts, and I think the
sense of the committee may as well
be taken upon the proposition now as
at any future time. I am aware of
the section the legislative commit-
tee have reported. Furthermore the
committee on revision have a right,
and it is a part of their duty to place
all the provisions of the constitution
under appropriate articles; and I
see no impropriety in considering the
matter now. I shall not withdraw
the section. In my judgment, the
provision is a very important one.
In the first place in reply to the
suggestion of the chairman of the
judiciary committee, I think that,
upon reflection, he will agree with
me, that, without this provision, the
legislature will not have the power
to provide for making the state a de-
fendant. The theory upon which it
has always been held that the state
could not be sued was that it was in-
consistent with the sovereignty to
be sued by one of its citizens in one
of its courts. That theory has been
carried out in the U. S. and in many
states of the union. By special pro-
vision in the constitution of one state
at least, as to which I speak from
personal knowledge, suits may be
brought against the state. Now, sir,
I think it is very obvious and appar-
ent, that there ought to exist a pro-
vision in the constitution, or under
the law, by which the state of Ne-
braska may be made a defendant. I
do not think it necessary to argue the
proposition elaborately. Going back,
for a moment, to the origin of the
doctrine that a sovereignty can not
be sued because it is derogatory to its
dignity to be brought as a defendant
into its own courts, it is manifest that
to carry out such a doctrine may and
inevitably will in many cases, do in-
justice to the citizens. Against the
right of suing the sovereign in the
courts, it has always been argued
that the citizen should look to the
justice of the sovereign alone and ap-
peal to the legislative department of
the government for redress. If nec-
essary to argue that proposition, the
history of the whole country is fill-
ed with instances where citizens for
years and years, for a whole lifetime,
have been suppliants in vain at the
feet of the sovereign for the plainest
justice and right. It is only within
a few years that the United States
has provided a form in which the
citizen could bring a suit against it.
Before that was done it is common
history that that lifetimes were spent
in beseeching congress to allow the
most just claims; and those reject-
ed .claims were handed down from
one generation to another, and while
justice was continually denied. But
since a court was provided in which !
the merits of the claim could be tried |
in the ordinary modes of law, jus- I
tice has been done and the United i
States made to pay just claims, i
What is true in regard to the United i
States is also true in regard to states.
And, instead of sovereignty being a
SUITS AGAINST THE STATE
111
Thursday]
WAKELEY
[July
reason why the citizen should not
bring it into court there is the strong-
est of all reasons why he should. The
very fact that he is dealing with
sovereignty places the individual
at enormous disadvantage . This is
the obvious reason why there should
be a right to sue the state. I shall
be surprised if any gentleman shall
suggest that it should not be done.
I believe that the distinguished gen-
tleman, the chairman of the judiciary
•committee, will, on reflection, be sat-
isfied that without this provision the
principle will be successfully invoked
upon which the citizen has always
been turned out of the courts. I re-
gard it not only as a proper provision
but, as a most valuable and indispen-
sable one in our organic law. If this
is not the proper place for it I am
perfectly willing it should be insert-
ed elsewhere. But I believe this is
the appropriate time to offer it.
Mr. LAKE. I think the gentleman
who has just taken his seat misun-
derstood what I said when I was on
the floor last. I most certainly agree
with him that unless there is some
provision in the constitution autho-
rizing the state to be made a party
•defendant in a suit at law or equity,
at the instance of an individual citi-
zen, that it could not be done.
What I said, or intended to say was
this — that it would be better to
leave this matter which he now pro-
poses, to be considered when the ar-
ticle which I referred to, reported by
the legislative committee, should
come under consideration. In their
report I find this provision. Sec. 45
■ — "The state of Nebraska shall nev-
er be made defendant in any court of
law or equity." Now, if this should
be the sense of the convention then
the gentleman's proposed section
would be rendered nugatory, that is.
useless. If, however, when the vote
shall come to be taken upon this sec-
tion which I have just read, when the
legislative article should be under
consideration, I say if the majority
of the convention should be all hon-
est, that this section should not pre-
vail, they would provide, probably,
that the state of Nebraska might be
made a party defendant in suits both
at law and equity, and then, as an
addition to this section, the provis-
ion the gentleman is now contend-
ing for might be added. The state
of Nebraska may be made a party
defendant in the courts of law and
equity in this state, and the legisla-
ture may provide in what courts such
suits may be brought. The permis-
sion to bring the suit, and the au-
thority on the part of the legisla-
ture to provide before what tri-
bunals should have jurisdiction in
those cases, could all be inserted in
one section. I only objected at the
present time, to incorporating this
section in the judiciary article.
Mr. MYERS. I am somewhat at a
loss to know the operation of this
amendment proposed by the gentle-
man from Douglas (Mr. Wakeley) to
make the state a defendant in the
collection of claims, or suits for the
recovery of money that may be duo
to the state or be due from the state
to parties claiming. I believe that
under royalty very great injustice
has been practiced, and parties have
been kneeling at the throne and de-
prived of their due. The king cannot
112
SUITS AGAINST THE STATE
Thursday]
LAKE-MYERS
[July 27
pursue, but I would like to know
whether that applies under this rule,
in a republican form of government
where the door is open for the pro-
secution of claims against the state
without going into the court of jus-
tice? The legislature in states where
this law prevails have a committee on
claims, who hear parties having bills
to collect against the government,
and I consider it a dangerous thing
to open the door for these prosecu-
tions against the state. They are
generally parties who have claims
which have been refused by the pro-
per officers; claims in excess of con-
tracts, or for articles furnished to the
state which did not comply with the
agreement, as to their quality, nature
or amount. When their claims came
before the legislature fully and fairly,
I know of fifteen or twenty claims
that were presented at the last leg-
islature, that I know, of my own
knowledge to have been clean, clear
frauds upon the state, and they were
rejected. Now so far as my knowl-
edge and experience goes on this sub-
ject, the legislature is always willing
to allow just and honest claims
against the commonwealth, and if
we send honest and just men to the
legislature these dishonest claims
will always be negatived. Some man
may have been cheated in a contract
with some other party — the peniten-
tiary inspectors, for instance. He
may come into the courts of justice
and keep your law officers constantly
employed. I know of no party be-
ing allowed unjust claims. There
are claims for Indian fights and In-
dian wars, amounting to |23,000.
These claims for good reasons have
all been rejected — have been killed.
Mr. MASON. Mr. Chairman. I
don't believe a more important ques-
tion to the whole state, has been
moved than the one now under con-
sideration, and for the reason sug-
gested by the gentleman from Doug-
las who has just sat down, whether
this provision should go into the con-
stitution is a matter of the greatest
importance. Our legislature passed
upon some claims last winter, whicli
have been before the legislature sev-
en times, and will probably come up
seven times seven, yet. Now, if this
were done in a court of justice, you
would put the record upon the per-
sons making these claims and stop
them. Another thing; you have but
to look out here upon your public
grounds surrounding this building,
and you will see where $2,000 were
paid for planting out forest trees,
which I undertake to say that I can
contract for, for the sum of $25.00;
and the auditor of state protesting
against the bill for these trees, and
yet it was allowed. All this would
have been impossible if we allow
the state herself to become a party
defendant in some of our courts of
justice. In the courts we have noth-
ing but the supremacy of the law.
That is the sovereign before which
the state ought to bend the knee;
and, sir, that law should be open
for the humblest, whether his claim
be against the state or against the
county. Why, is it that the state
should surround herself in majesty
and say "I have created these
courts?" In the olden times the
bringing of a king or sovereign be-
SUITS AGAINST THE STATE
113
Thursday]
MASON— ROBINSON-MYERS
[July 27
fore a tribunal of justice was not
thought of, because, they said, "the
king can do no wrong;" but let us
wipe out this relic of barbarism. Let
us provide thatthe state can be sued
in some one of our tribunals, and
then the legislature can say to those
presenting claims against the state,
"we turn you over to the proper tri-
bunal of justice; and establish your
claim there." Who of those within
the sound of my voice, that have sat
in the legislature and does not know
of the debates that arise where
claims are presented, where if the
witnesses were required to stand up
and swear to the facts upon which
these claims were sought to be made
good, they would fall to the ground.
I would not let the state be sued ex-
cept in special tribunals appointed
by the legislature, and then I would
require that every man who had a
claim against the state, should go be-
fore that court and establish his
claim, and then the legislature should
make an appropriation to pay it.
Fraud after fraud was perpetrated
upon the federal government until it
was driven to the establishment of
the "Court of Claims." If a man has
a just claim against the state, there
should be provision made for the re-
cognition of this claim and payment
of it. But I don't believe Mr. Chair-
man, this amendment should be made
here. I think perhaps the proper
place is in the legislative article.
But, sir, I do say that this convention
should do itself the honor of saying
to the state "bow down and worship
the sovereignty of the law." I would
remove frbm the legislature this
source of annoyance and trouble, and
8
turn it over to the courts of justice
who are fitted to deal with this class
of cases. I would not let every con-
stable, nor every sheriff in the land
be authorized to serve papers upon
the state, but I would permit her to
come into the highest tribunal in
the state. Then justice will be done.
I hope this amendment will receive
the sanction of the committee. It
can then be turned over to the legis-
lative committee and placed where it
belongs.
Mr. ROBINSON. Mr. Chairmah. I
wish to offer a substitute.
The secretary read the substitute
as follows:
The supreme court and the seve-
ral district courts shall each in ad-
dition to its ordinary powers and ju-
risdiction be a court of claims
wherein all claims against the state
may be prosecuted. The mode of its
procedure, the effect and execution
of its judgments and decrees shall be
prescribed by law.
Mr. MYERS. Mr. Chairman. I ac-
knowledge the force of the apostro-
phe of the chief justice (Mr. Mason.)
Now as to the claim which has been
referred to about the trees. I be-
lieve that has been definitely set-
tled. The contract sum agreed to
was $3,000. The auditor refused to
pay the sum, and the bill was sent to
the legislature. A deduction of a
thousand dollars was allowed, and I
need not say that if the claim had
been taken into the courts I believe
the whole amount could have been
collected. Now sir, I can buy these
trees which remain here for $20.00.
The auditor may have had ulterior
reasons for refusing to pay the claim.
Many of these trees, perhaps, hun-
114
SUITS AGAINST THE STATE
Thursday]
LAKE-PRICE-ESTABROOK
[July 27
dreds of dollars worth, were not furn-
ished to the state but were furnished
to private individuals who used them
to adorn their grounds, and that was
one reason why the legislature dock-
ed the bill $1,000 and the reason
why the aduitor of state, an hon-
est man, Mr. Gillespie, refused to
audit the account. I don't believe the
state should be dragged into the
courts to be held accountable to every
scallawag.
Mr. STRICKLAND. Mr. Chair-
man. I move to amend by striking
out the word "rejected," and put-
ting in these words, "for the payment
of which no appropriation is made
by law."
Mr. ROBINSON. I accept the
amendment.
Mr. LAKE. Mr. Chairman. I
wish to read an amendment which I
will propose.
"The legislature may provide by
law for the prosecution of claims
against the state and in what tri-
bunals and under what regulations
the same shall be prosecuted."
Mr. PRICE. Mr. Chairman. I
hope there will be a provision made
in the constitution by which the state
may be sued, for the claim of indi-
viduals. Reference has been made
here by the gentleman from Douglas
(Mr. Myers) to the calling out of
the militia. I believe he stigmatized
it as a fraud.! know something about
that and to that I wish to reply. The
constitution of the State of Nebraska
provides that the governor shall have
power to call out militia of the state
whenever it is deemed necessary.
At that time the Indians made a
raid upon the southwestern part of
the state, the governor called out the
militia in this section of the coun-
try, they served under the direction
of the governor and they put in
their bill and have had to depend on
the legislature for the pay, and sir,
they have never got a cent of pay yet,
but are today doing without that
money on account of the laws made
by the legislature last winter. I
shall insist upon the amendment.
Mr. ESTABROOK. Mr. Chairman.
There is a provision in the constitu-
tion of the state of Wisconsin and it
reads thus:
"The legislature shall provide by
law, in what manner and in what
courts a suit may be brought against
the state."
If I can find a provision in the
constitution of another state I shall
prefer to adopt that, for the reason
that their decisions will be of some
benefit to us. I think that the idea
that the state cannot be sued is of
regal origin as suggested by the
gentleman from Otoe (Mr. Mason.) I
think it is right and a true republi-
can idea to allow a person to bring
action against the state for claims
as in other cases, in the usual way.
It is true when a matter is claimed
before the legislature it is general-
ly upon some caprice that it is re-
jected or allowed, but if you will
bring it before the court, it seems to
me the question does not arise
whether the dignity of the state
shall be humbled, but the simple
question whether the claim made be
a just one, and shall be allowed.
That it seems to me is the fair com-
mon sense idea of this section. Un-
der this constitution of Wisconsin it
is required that the person shall first
present his claim before the legisla-
ture and if it is rejected he has re-
course to the supreme court. If I
understand the gentleman from Otoe
SUITS AGAINST THE STATE
115
Thursday]
MYERS— WAKELEY-ROBINSON
[July 27
it is not intended that every claim
shall be brought before the court,
but only whore the claimant and the
legislature differ. I find this provis-
ion "Suits may be brought against
the state, according to such regula-
tions as shall be made by law"
in the constitutions, — of Alabama,
Pennsylvania, and Delaware, and
the following: "The General As-
sembly may direct by law in
what manner and in what courts
suits may be brought against the
state," in the constitutions of Wis-
<;onsin, Illinois, Indiana, Kentucky,
Mississippi, Nevada and Arkansas.
Mr. MYERS. Mr. Chairman. I
wish to say in regard to this claim
referred to by the gentleman from
Jefferson (Mr. Price) I voted for that
claim and helped to put it through
this house and I was taunted at af-
terwards for voting for a fraud.
Mr. WAKELEY. Mr. Chairman.
In regard to the different proposi-
tions before the committee, I would
like to say a word. I think that the
amendment offered by the gentleman
from Lancaster
Mr. ROBINSON. Mr. Chairman. I
will withdraw my amendment, if the
amendment offered by the gentleman
from Douglas (Mr. Wakeley) is the
same as in the Wisconsin constitu-
tion.
MR. WAKELEY. 1 copied it from
the Wisconsin constitution with the
change of but one word, "provide"
instead of "direct." I think there
has just been a cause here, where it
is necessary to make the state a par-
ty defendant in order to foreclose its
mortgages in the Tichenor case. I
think the provision should be broad
enough to allow the state to be
made a party defendant, where the
claim affects the interests of the
state, as in this case.
The prosecution of a claim
against the state is one thing, but a
man may claim property where the
title is vested in the state. Various
cases may be thought of where the
state should be made a party defend-
ant, but where the plaintiff is not
prosecuting any claim against the
state, unless you use the word claim
in a very broad sense. Suppose your
state was in possesion of real pro-
perty and some citizen of the state
chooses to contest the title, I do not
think that is a claim against the state
and I do not believe there is any
necessity for making the language
as restricted as in the amendment of-
fered by my colleague (Mr. Lake.)
It seems to me the section as
I offered it is sufficient for all pur-
poses.
Mr. LAKE. I withdraw my amend-
ment.
The section was agreed to.
Mr. ESTABROOK. Mr. Chairman.
I move the adoption of the following
"The several judges of the courts
of record in this state shall have such
jurisdiction at chambers as may be
provided by law."
I looked carefully over the article
and did not see any provision made
for jurisdiction at chambers. I
copy it from the constitution of Kan-
sas.
Mr. LAKE. Mr. Chairman. I think
that section is an appropriate one and
ought to be embodied in this article.
1
11(5
CLERKS OF DISTRICT COURTS
Thursday]
ESTABROOK-LAKE— WAKELEY
[July 27
it was omitted really by mistake, I
had tlie matter in contemplation at
the time the article was being pre-
pared, but through an oversight it
was neglected. I hope the section
will be adopted by the committee.
The section was agreed to.
Mr. WAKELEY. Mr. Chairman. I
do not wish to monopolize the busi-
ness of offering amendments to this
article, but I have another:
"Sec-
-District courts shall ap-
point a clerk for each county who
shall hold his office for a term of
three years unless sooner removed
by the court, and tiiereafter until his
successor is appointed and qualified."
Mr. LAKE. Mr. Chairman. For
one I prefer that this matter should
be left to the legislature and that no
provision should be made for the ap-
pointment of a clerk in this article.
It has been heretofore left to the leg-
islature and I am in favor of leaving
it there still. I see no good reason
why the legislature might not be
left in control of the subject, to pro-
vide either for their appointment by
the court or election by the people.
In most of the states now, judges
of the court like our district courts
provide for the election of the clerks
by the people, and I believe that
generally that is the popular plan. I
prefer not to encumber the consti-
tution with unnecessary provisions.
If the legislature sees fit to leave the
appointment to the judges they will
do so, if they think best to provide
for the election by the people they
wll do so; they will do what they
think best for the people of the stat^
at large. I hope the committee will
leave it where it is.
Mr. WAKELEY. Mr Chairman. I
do not know but this matter might
be properly left to the legislature but
I prefer to see this provision put in
the constitution. I think there is
eminent propriety in vesting the ap-
pointment of clerks in the courts. I
think the courts have so much better
opportunities of knowing the qualifi-
cations of a clerk, so much better op-
portunities of knowing whether he
possesses proper skill, experience and
frame of mind to make a good clerk.
Of course in all ordinary cases the
people should elect their officers
but the clerk of the court has pecu-
liar duties to perform in connection,
with the records of the court, very
delicate and responsible duties tO'
perform in connection with the rec-
ords of the papers of the court. He
is moving under the immediate eye
of the judge, and certainly the judge
of the court has greater opportuni-
ties for knowing the qualifications of
the clerk than the people have. Ev-
ery member of the bar will, I think,
confirm what I say and if members
of the committee agree with me I
do not see why we should not Insert
it in the constitution. We have al-
ready adopted a similar provision in
regard to the clerk of the sunreme
court, and I know of no reason why
one officer should be left to the peo-
ple that would not require the elec-
tion of both to be left to the peo-
ple. I consider it a matter of some
considerable importance.
Mr. MASON. Mr. Chairman. I
hope the amendment may prevail. I
believe it desirable. I think evely
judge who is responsible for th&
4
CLERKS OF DISTRICT COURTS
117
Thursday]
MASON— BALLARD— MAXWELL
[July 27
keeping of a proper record ought to
appoint his own clerk.
Mr. BALLARD. Mr. Chairman. I
hope the motion will not prevail. I
do not wish to see that system of ap-
pointment inaugurated in this con-
stitution. The same reason that my
friend from Douglas (Mr. Wakeley)
assigns for the appointment of clerk
of the court will carry out with other
officers of the court. . I hold the peo-
ple should be left free to elect their
own servants. I hope the motion
•will nbt prevail.
Mr. HASCALL. Mr. Chairman. I
shall always leave everything as far
as my vote will go, with the peo-
ple. I shall vote against the propo-
sition.
The proposition was not agreed
to.
Mr. MAXWELL. Mr. Chairman. I
wish to amend the second section by
adding to it the words "provided
that not to exceed one judge of said
court shall be elected from any one
county."
Mr. MAXWELL. The reason of
this amendment is as far as possible
Mr. HINMAN. I rise to a point of
order that it is not right to go over
this section by section and amend
after we have adopted the section.
The CHAIRMAN. The chair un-
derstands that the point of order
is well taken,
Mr. ESTABROOK. I hope the
cl^airman will, not settle upon that
rule.
Mr. MAXWELL. Then I offer this
as an independent section. It reads:
"Provided that not to exceed one
judge of the supreme court shall be
elected from any one county."
Now, Mr. Chairman, it is desir-
able, as far as possible to distribute
the judges of the supreme court
throughout the state. There are ca-
ses, of a local character that may
come before that court, such as a
judge, perhaps, might not act upon
unbiased. And it is desirable to take
one from one part of the state, and
another from another, and one from
the third part of the state. Without
some such provision as this, all the
judges might be elected from one
county. We are all aiming to have
an independent supreme court. Now,
some of the large counties of this
state might, probably will not, but
they might, elect all the judges.
They might elect two of them. If
we permit one county to elect but
one judge, then we distribute one
to the southern and one to the nor-
thern, and one, perhaps, to the cen-
tral, part of the state. And I think
the court will be much more efficient
than it would otherwise.
Mr. LAKE. I would suggest to
the gentleman, if he is in earnest in
his desire that they continue to re-
side where they are elected. Sup-
pose the three should conclude that
it was best that they should reside
at the capital, would the gentleman
object to that? He desires to have
them scattered about over the state.
The business of the judges of the
supreme court is at the Capital;
there is the place for them really,
most of the time, especially w^hen
the business of the state shall be
such as requires their attendance
118
RESIDENCE OF SUPREME COURT
Thursday]
LAKE-HINMAN-ESTABROOK
[July 27
there at long sessions of the supreme
court. I would recommend that the
gentleman incorporate in his amend-
ment "that no judge, after being
elected shall be permitted to remove
from the county in which he resides
at the time of his election."
Mr. HINMAN. Suppose we should
nominate a man from Douglas coun-
ty, Judge Lake, for instance, for the
republicans. Suppose on the other
hand, we should nominate Mr. Wool-
worth or Judge Wakeley, on the oth-
er side, and by some peradventure
they should be elected, then, I would
suggest, the amendment would be
impracticable
Mr. WAKELEY. I think that, in
the case suggested by the gentleman
from Lincoln, on general principles,
the democrat ought to be declared
elected.
The committee divided and the
section was agreed to.
The CHAIRMAN. The question is
upon the adoption of the article as
amended.
Mr. ESTABROOK. I would call
the attention of the chairman of the
committee to section twenty-two, the
last section of the article. "All pro-
cess shall run in the name of the
people of the state of Nebraska, and
all prosecutions shall be carried on
in the name of the people of the
state of Nebraska, and conclude
against the peace and dignity of
the same." What kind of prosecu-
tions are meant here? Is this intend-
ed to apply to criminal prosecutions
Mr. HINMAN. I rise to a point of
order.
Mr. ESTABROOK. State your
point of order.
Mr. HINMAN. The section is not
before the house.
The CHAIRMAN. Does the gen-
tleman propose to amend?
Mr. ESTABROOK. Yes, sir, I pro-
pose to amend.
Mr. HINMAN. I insist on my point
of order.
Mr. ESTABROOK. State your
point and then I will argue. I would
like to have this question settled.
May be, I don't know anything about
parliamentary rules. But I know
that in this, as well as in any other,
you first go through section by sec-
tion, and then you harmonize the
whole. We pass along and almost
without knowing the entire object
of a section and adopt it. Now, it
is absolutely necessary to travel back,
so as to make the parts harmonize
with each other. I merely call the
attention of the chairman of the
committee to it.
The CHAIRMAN. Does the gen-
tleman offer an amendment?
Mr. ESTABROOK. Yes. I desire
it to be amended.
Mr. MASON. I have an amend-
ment I desire to offer
Mr. ESTABROOK. To this sec-
tion?
Mr. MASON. No, sir. I thought
there was no section before the con-
vention.
Mr. ESTABROOK. I was enquir-
ing whether
The CHAIRMAN. Does the gen-
tleman offer an amendment?
FOKM OF WKITS
119
Thursday]
ESTABROOK— MASON— LAKE
[July 27
Mr. LAKE. Mr. Chairman. I will
answer the gentleman that the ori-
ginal copy was correct but
Mr. MASON. Mr. Chairman. I
thought I had the floor.
Mr. ESTABROOK. I have the
floor.
Mr. MASON. I see you have. You
have a great many places you ought
not to have. I will let the gentle-
man explain.
Mr. LAKE. The difficulty the gen-
tleman complains of is all owing to
the want of proper punctuation and
the omission of capital letters. In
the original bill it was correct. But
here we have only commas, where
there ought to be semicolons. There
should be a semicolon after the
word "run;" after the word "Ne-
braska;" after the word "on;" after
"Nebraska" again, and after the
word "conclude."
Mr. ESTABROOK. I enquire fur-
ther, whether it should not say in-
dictments.
Mr. LAKE. It is almost the same
language as used in the old consti-
tution. We never have experienced
any difficulty. The constitution, too,
of Illinois, with the exception of the
name of the state, and the words "by
the authority," has precisely the
same language; but the punctuation
of the article, as printed, is differ-
ent.
Mr. ESTABROOK. In the case of
a prosecution for misdemeanor
would it not be fatal to omit to say
it was "against the peace and" dignity
of the state of Nebraska?"
Mr. LAKE. It should read so.
Mr. ESTABROOK. Then I offer
an amendment — "and all indictments
and information shall conclude
against the peace and dignity of the
same."
Mr. LAKE. Mr. Chairman. That
will leave the section substantially
as it now is but with a large amount
of verbiage which is entirely unnec-
essary. All informations before
magistrates are also included here.
It don't change the section at all,
but renders it very bungling indeed.
Mr. ESTABROOK. Well, I will
withdraw it.
Mr. KIRKPATRICK. Mr. Chair-
man. I would like to hear this point
of order which has been raised, set-
tled.
Mr. HASCALL. I would call the
gentleman to order. There is no
point of order raised.
The CHAIRMAN. The chair holds
that after the article has been
amended, it is still open for amend-
ment section by section.
Mr. MASON. Mr. Chairman. I
have a section I desire to see added.
The object is to remove the election
of judges from the influence of party
feeling, as much as possible. The
section reads:
"Ballots for judges shall be de-
posited in separate boxes to be pro-
vided for that purpose."
Mr. STRICKLAND. (To Mr. Ma-
son) Does that apply to all the
judges?
Mr. MASON. I would say all.
Mr. STRICKLAND. Mr. Chair-
man. I move to amend by making it
"supreme and district judges."
120
Thursday]
SEPARATE BALLOT FOR JUDGES
LAKE-MASON-STEICKLA?JD
[July 27
The CHAIRMAN. The question
is upon the amendment of the gen-
tleman from Douglas (Mr. Strick-
land).
The committee divided and the
amendment was not agreed to.
The CHAIRMAN. The question is
upon the section offered by the gen-
tleman from Otoe (Mr. Mason).
The committee divided and the
section was not adopted.
The CHAIRMAN. The question
recurs upon the adoption of the ar-
ticle as amended.
The article was adopted.
Mr. MAXWELL. Mr. Chairman. I
move that the committee rise, report
the article back to the convention,
as amendedl. and recommend that it
be engrossed.
The motion was agreed to.
Mr. McCANN. Mr. President. The
committee of the whole have had un-
der consideration the article on "Ju-
diciary" and beg leave to report
the article back as amended, and
recommend that it be engrossed.
Adjournment.
Mr. MYERS. Mr. President. I
move we adjourn until tomorrow
morning at 9 o'clock.
Mr. McCANN. Will the gentleman
give way one moment. If we recom-
mend that the article be engrossed,
it cannot be amended in conven-
tion. As it is, it is still subject to
amendment in convention.
The PRESIDENT. The article
will not be engrossed.
Mr. MYERS. Mr. President. I
renew my motion to adjourn until
tomorrow morning at nine o'clock.
The ayes and nays were demanded.
The secretary proceeded to call the
roll.
The President announced the re-
sult — ayes, 14, nays, 33 — as follows:
YEAS
Cassell.
Myers,
Bstabrook,
Neligh, f
Kirkpatrick,
Philpott, ;
Griggs,
Price,
Kenaston,
Robinson,
Lake,
Scofield,
Maxwell,
Wilson — 14
NAYS
Abbott,
Manderson,
Ballard,
Moore,
Boyd,
Newsom,
Campbell,
Reynolds,
Curtis,
Shaff,
Eaton,
Sprague,
Gibbs.
Stevenson^
Granger,
Stewart,
Gray,
Thummel
Hascall,
Thomas,
Hinman,
Tisdel,
Kilburn,
Towle,
Ley,
~]> Vifquain,
Lyon,
Wakeley,
McCann,
Weaver,
Majors,
Woolworth — 33
Mason,
ABSENT OR NOT VOTING.
Grenell, Spiece,
Parchin, Mr. President— -5.
Parker,
So the motion to adjourn until to-
morrow morning at 9 o'clock was not
agreed to.
Mr. MANDERSON. Mr. Presi-
dent. I move we adjourn until this
evening at eight o'clock.
Leave of Absence.
Mr. KIRKPATRICK. Mr. Presi-
dent. I ask leave of absence until
tomorrow morning at 9 o'clock.
Leave granted NEM. CON,
ROLL CALL ON ADJOURNMENT
121
Thursday]
McCANN— MANDERSON
[July 27
Mr. WAKELEY. Mr. President, I
would like to know what is the stat-
us of the report of the judiciary
committee.
The PRESIDENT. Under the or-
der of business it will be taken up
at two o'clock p. m. tomorrow.
Adjourament Again.
The PRESIDENT. The question
is upon the motion to adjourn until
S o'clock this evening.
The convention divided, and the
motion was agreed to.
So the convention (at six o'clock)
adjourned.
Evening Session.
The convention met at S o'clock
p. m., and was called to order by the
president.
Privileges of the Floor.
Mr. SCOFIELD. Mr. President I
have a resolution I wish to offer.
The secretary read the resolution
as follows:
"Resolved, That the convention
takes pleasure in extending the privi-
leges of the floor of this hall to Hon.
I. N. Shambaugh and Hon. H. Cal-
houn."
Mr. McCANN. Mr. President. I
move the adoption of the resolution.
The resolutipn was adopted.
Electoral and Representative Reform.
The PRESIDENT. Gentlemen of
the convention, the special order for
this evening is to fake up the report
of the committee on electoral repre-
sentative reform. The question is
on going into the committee of the
whple.
The motion was agreed to.
So the convention in the commit-
tee of the whole, Mr. Stevenson in
the chair — proceeded to consider the
minority report of the committee on
electoral and representative reform.
The CHAIRMAN. Gentlemen of
the committee, we have under con-
sideration this evening the report of
the committee on electoral and rep-
resentative reform. The secretary
will read the proposition.
The secretary read the following:
PROPOSITION.
At any election when three or
more persons are to be elected to
the same office by the same constitu-
ency, each qualified voter may cast as
many votes for any candidate as
there are persons to be elected to
such office, or may distribute the
same, or equal parts thereof, as he
may see fit, among the candidates
not exceeding the number to be elect-
ed. The candidates highest in votes
shall be declared elected; or if an
equal vote for two or more having
the requisite number, shall require it
the choice between them shall be
made by lot.
Mr. BOYD. Mr. Chairman. I move
the adoption of the report.
Mr. WAKELEY. Mr. Chairman.
It will be expected that something
will be said in favor of this proposi-
tion by the committee who have re-
ported and who recommend its
adoption. In what I shall say in fa-
vor of it I shall content myself with
a plain statement of the principle
intended to be established by the
adoption of this proposition and
such arguments and reasons in sup-
port of it as I am able to bring for-
ward. The subject addresses itself
to the intelligence of men. it appeals
to that sense of what is right and
122
PROPORTIONAL REPRESENTATION
Thursday]
SCOFIELD— STEVENSON— BOYD
[July 27
just. In the first place it is well to
have a clear idea of what is in that
proposition, what it intends to say.
Fir.st what is the mischief to be reme-
died? Under the present system of
using the elective franchise as we
all know, whenever one or more of-
ficers are voted for in the same dis-
trict cither a majority of those vot-
ing or a plurality elect the whole
number voted for. What is in that
is to permit such a use of the elec-
tive franchise; such a use of the pow-
er of the ballot, entrusted to every
individual, as will bring about as
nearly as practicable this result, that
the majority shall no longer be un-
able to elect a majority of the officers
voted for in the election and that it
shall be no longer in the power of a
mere majority to elect all those of-
ficers. Under the system of govern-
ment which prevails in this country
we have the electing of various clas-
ses of officers. The executive to en-
force the law. The judiciary to In-
terpret the laws and various other
officers to perform their functions in
the state. What is in that is this,
that heretofore in adopting this sys-
tem every class or condition of voters,
whether the majority, plurality or
number less than either to elect its
due proportion of the representative
officers and select its due share of
other officers, a share which shall
bear the same proportion to the num-
ber elected as the division of voters
less than a plurality bears to the
whole number of voters. If nine of-
ficers are to be chosen of the same
class, in the same district and at the
same election then it is intended that
one-third of the voters supporting
the same system shall be able to
elect three of these officers and in
that proportion: On that prin-
ciple this is enough to explain
what is in that by the adoption of
this proposition. How will the adop-
tion of this proposition accomplish
that result? This is I trust plainly
and clearly set forth and stated in
the report made by the minority of
the committee, and if gentlemen of
the convention have done us the hon-
or to peruse that report it will per-
haps explain more clearly than I
could now do, the manner in which-
the adoption of this system is expect-
ed to work the proposed result. But
I may state a few words perhaps
without trespassing upon the time or
indulgence of the committee. Un-
der the present system of voting Mr^
Chairman, each elector is required
to give one vote to each of the can-
didates whom he supports or con-
firms for a given office, or to lose in
part the benefit of his vote. He can
give but one vote to any one candi-
date or person, therefore it results
necessarily as a mathematical propo-
sition that if a minority of voters
distribute their votes in this manner
they will be outnumbered by the
majority, and thus the minority by
attempting to accomplish more than
they are able to, accomplish nothing;
but if each individual voter, if each
minority of voters, all desiring to
elect the same set of candidates, were
permitted to bring their whole elec-
toral power to bear upon selecting
that share which they are justly en-
titled to, they would effect what they
undertake, but in being compelled to
attempt more than they can accom-
plish they lose the entire benefit of
PROPORTIONAL REPRESENTATION
123
Thursday]
WAKELEY
[July 27
the ballot. In being permitted to
attempt just what they are able to
accomplish they are able to make
their votes effectual. If one-third of
the whole number of voters are per-
mitted each to give three votes to the
candidate of their choice, they will
inevitably elect him. And, sir, the
principle upon which this is accom-
plished is the same principle illus-
trated in the daily transaction ot
human life. When an individual at
tempts by physical effort to overcome
an obstacle altogether beyond his
power or resources, all his strength
is exerted in vain. When my friend
the president of the convention, Gen.
Strickland, or Gen. Manderson in
the late war for the Union, at the
head of their respective brigades,
found themselves confronted by an
overwhelming number of the enemy
they would deem it rash and reckless
to hurl their little forces upon three
times their number and thus sacri-
fice lives uselessly and shed blood in
vain in confronting a foe more than
their number, but give them what
they are able to do and they can
strike blows for the flag and country
which shall tell and which did tell
in working the overthrow of the re-
bellion which aimed at the life of this
republic. Men losing their lives in
such a contest do not lose them in
vain, blood shed in such an effort
was not shed ruthlessly. Now sir-
in using the ballot we would apply
the same principle. We would not
compel the minority to fritter away
the whole force of their ballot, the
whole effect of the electoral power,
by attempting to accomplish impos-
sibilities. We would have them meas-
ure their strength and concentrate
their votes upon that number of
candidates whom they would be able
to elect. This, then Mr. Chairman, in
few words is the method by which
we expect to acomplish the result
aimed at. Now sir, is this right and
is it expedient? First is ifc the right
of the elector so to use his ballot, is
it right for the minority to be repre-
sented according to their principles
in the legislative counsels of the
country, and is it right that the mi-
nority should be able to select its
due proportion of other officers? And
sir, it would conduce to clearness and
brevity if I confine my remarks plain-
ly to the question of representation.
This is sometimes called Mr. Chair-
man, minority representation. I
would call it proportional represen-
tation. It is a representation of
minority, but it is only a proportion-
al representation, a representation
according to the numbers of the mi-
nority as compared with the whole
number of voters. Now sir, is it
right that a minority of voters should
be allowed to elect their representa-
tives to the legislature, and send
them to speak and act for a minority
of the voters? Mr. Chairman, let
me speak for one moment upon forms
of government. Do not imagine
that I am going to weary this com-
mittee with any dissertation upon
the general principles of government,
but it is necessary in the argument,
that I should devote a very few mo-
ments to that general consideration.
Governments are of two kinds, popu-
lar governments and monarchial or
kingly governments. Popular gov-
ernments are of two sorts, one the
124
PROrORTIONAL REPRESENTATION
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WAKELEY
[July 27
pure democratic in which all the
voters assume to deliberate, to leg-
islate and to decide. I need not say
of course that this form of govern-
ment has its place in the world. It
took its due place in the procession
of the forms of government, but
from physical necessity it has passed
away, it was practicable only where
those comprising the government
were spread over a limited area.
But sir, when so represented the mi-
nority was there as well as the ma-
jority. The majority had its voice,
its influence, its power, in the ulti-
mate decisions and whatever con-
cerned the common weal. Although
this form of government has passed
away yet still we have traces of it
in our American institutions. Mr.
Chairman, in the meetings of New
England, New York, the central and
most of the western states you have
still an example on a small scale of
a purely democratic form of govern-
ment, where every voter in the
limits of the town is entitled to be
present at these meetings, these little
legislatures for the town, is entitled
to his voice, his influence, and to his
vote in all affairs which concern the
little commonwealth of which he is
a part. You have this same form of
government represented in your
school district meetings, in your
church meetings, in your society
gatherings, where minorities have
still all their rights. If a man stands
solitary and alone, the sole represen-
tative of a single interest, the sole
exponent of a single view of the
policy which should control the town
or society, although his single voice
may be heard, although his single
vote may be given in support of his
proposition, still he is entitled to be
there, to be heard and to give that
vote. Sir, when the pilgrims assem-
bled on the deck of the Mayflower
and there with the broad canopy of
God over them and the whole con-
tinent and wilderness before them,
sat down and framed the laws and
regulations which should govern
the little community they were about
to establish, they were democratic
every man of them, fleeing from the
persecution and bigotry in the old
world to the freedom of the new,
And every man was entitled to be
heard, and was heard, and sir, histo-
rians say that in that code of laws
and regulations is found the germ of
some of the most valuable principles
which have been embodied and per-
petuated in the laws of the United
States. So much for a democracy.
We, sir, live in a representative gov-
ernment where a few men legislate
in the name of all. Where a few
regents of the people perform their
duties in order and the interest of
law. It is not part of my purpose to
discuss the relative merits of these
two forms of government, suflBice it
to say that a representative govern-
ment is a necessity at this day, and
it would not be difficult to show that
it is an improvement upon a pure
and absolute democracy, but that is
foreign to my purpose. Now sir,
coming to the immediate question.
We are about to provide for a leg-
islature of the state of Nebrask;a,
provide for a senate and a house of
representatives, and to illustrate my
ideas of what is right and what
ought to be done, let me suppose
PROPORTIONAL REPRESENTATION
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Thursday]
WAKELEY
[July 27
what is not far from the facts. Sup-
pose that this state will have 30,000
votes, that we shall provide for a
house of representatives to consist
of Sixty members; when sir, 30,000
voters will elect sixty members of the
house, and upon an average every
500 votes in the state will elect one
of these representatives. Now, sir,
if the entire state of Nebraska was
one grand legislative district, and
sixty members were to be chosen
from the whole state, what would be
a perfect system of representation?
I have not the time to reason it out.
Other men have done it much bet-
ter;, much more convincingly than I
can do. But, sir, I lay down this
proposition, and I will argue in refer-
ence to it that a perfect system of
representation, if the whole state
was one representative district,
would allow every 500 men within
the limits of the state who would
prefer to use their electoral power
for one man, and their candidate
should have the power necessary to
elect him, then, sir, he would be, in
every sense of the term, their repre-
sentative. Every man who voted
for him would be directly represent-
ed by him. But, sir, that will not be
done. Let me suppose what is prob-
able to be done. That counties or
legislative districts electing more
than one member shall have their
due quota or proportion of represen-
tatives assigned to them. For illus-
tration. Suppose the county of Otoe
has one-tenth of the population of
the state and will be accorded one-
tenth of the representatives; she has
a ' population of quite, or, perhaps,
exceeding one-tenthji. and she will
have not less than six members ac-
corded to her. Then I carry out my
illustration. Three thousand voters
in the county of Otoe will be entitled
to send six members to this hall.
Every 500 of these voters is entitled
to elect one man. That is the aver-
age proportion. Now, sir, if one
thousand of those voters are in fa-
vor of electing one set of candidates,
and 2,000 voters in favor of electing
another set of candidates, is it right,
is it just, is it democratic, that the
2,000 should elect all the represen-
tatives, and that the 1,000 should
elect none? But worse than that!
Suppose that there shall be three sets
of candidates in the field, and one
set receives, by a few votes, more
than either of the others, then one-
third or a little more of the whole
number of votes, elects the six mem-
bers, and the two-thirds are disfran-
chised; and there sir, is minority
representation for you in its perfec-
tion. There the minority elected all
your members and the majority is
unrepresented. If there be three
candidates in the field and each one-
third of the voters would elect two
members, each would be represented,
and there would be proportional rep-
resentation. Gentlemen, is that fair;
is that just; is that right? Or is it
right that either a minority, which
means but a plurality, shall
elect them all. Now, sir, let me put
a few instances by way of practical
illustration of this principle. As a
general thing, voters divide accord-
ing to political principle. As a gene-
ral thing, they are arranged in two
great political parties — sometimes in
three. >l6w, let us suppose soiiie
126
FROFORTIONAL REPRESENTATION
Thursday]
WAKELEY
[July 27
cases which are not embraced in this
classification of voters. I will sup-
pose that in the county of Otoe, en-
titled to elect six members, with a
voting population of 3,000, that there
are 500 voters who have in [com-
mon] some principle which to
them, is dear and valuable. I
will suppose there are 500 men
there known as labor reform men,
who believe that the principal
issue should be the issue of
capital and labor! who believe that
these principles, which are advocated
by the political parties, are compara-
tively unimportant but who believe
that the rights of labor should be the
great object of legislation: sir, that
party has an existence in this country.
I suppose in some places it is strong;
in others it is weak. But if there
be 500 men within the limits of Otoe
county who would make the issue of
labor reform the supreme issue in
the canvass, and say they care noth-
ing for any other question to be
mooted in the legislature; but that
this is the great, paramount and su-
preme issue, sir, is it not right, is it
not just; is it not democratic; is it
not republican that those 500 men
should elect one man to represent
their views upon the floor of the
legislature; and so another 500 men
believe that there should be prohi-
bitory legislation against the manu-
facture and selling of intoxicating
liquors; another 500 men, drawing
their inspiration from my honored
friend to my left, believe in some
question of great interest to them.
Now, sir, although the great majori-
ty may be against that question, al-
though there may be an overwhelm-
ing torrent of public opinion against
it; yet who will stand up here and
say 500 men, the number who, every-
where else are entitled to elect one
representative, believe a man to be
elected for that purpose and vote for
their man, should not have the right
to elect him, and let their views be
expressed upon the floor of the leg-
islature? So if free schools had not
already been established in this
land beyond all danger of overthrow;
if we were back twenty or thirty
years before free schools were estab-
lished by a fundamental law of the
states: when education was beyond
the reach of the poor man, when, from
mere penury and want his children
were growing up about him in ignor-
ance, was it not the right of every
set of men', amounting to the quota
which entitled them to one represen-
tative, to elect a special chdmpion
of that great and paramount cause?
And so unnumbered illustrations
might be put; but I forbear. I have
given enough to illustrate the prin-
ciple.
Now, sir, what 1 have said per-
tains to representative officers. It
may be said that in respect to other
ofiicers the principle has no applica-
tion. It may be said that the judges
of the land are elected not to repre-
sent the views of the constituents but
to administrate the law as it is. That
is true. They are not elected to rep-
resent the political views, of any
few of the men who choose them. But
they are elected because the men
who vote for them believe they are
fit and suitable men for theoffice; and
if there is a difference of opinion
among the voters on that question; if
PROPORTIONAL REPRESENTATION
127
Thursday]
WAKELEY
[July 27
a bare majority of the voters say A.
B. and C. are the most suitable men
for judges, and the minority amount-
ing to nearly one-half, say, no, neith-
er of those men are capable, neither
of those men are fitted for the of-
fice, but three other men, two other
men, one other man is, in our judg-
ment, suitable, is the best man in
the state or in the district to hold
the office; then, sir, applying the
same principle, should not the choice
of the minority be respected to the
extent of their proportion of the
whole number of votes? And while
the principle is the same; the occa-
sion of it is different. Let me al-
lude to one principle which is not em-
bodied in the report. The able gen-
tleman from Otoe county, a few days
since, in a casual remark upon the
accidental question, took occasion to
say he believed in some representa-
tion in the legislature in either
branch of the legislature, from
the state at large, that a propor-
tion of the senators and representa-
tives should be elected without refe-
rence to locality, and he stated, in
better language than I can employ,
the reason for which. Mr. Chairman,
early in the session, I had something
individually to do with the resolu-
tion that went to this committee, and
I will only undertake to say that
they established a most , excellent
element to incorporate in the sys-
tem of legislation.
Sir, we all know — every man has
had occasion to know, that in
every state some of the very best
men, some of the men most fit, most
capable in every respect to represent
the people are kept out of the leg-
islature because the people of the
particular district in which they live
are opposed to them politically. I
have seen this sir, and if men were
taken from the state at large — were
selected for their peculiar fitness for
the positions, there would be a re-
formation in political matters. If the
principle of minority representation,
or rather proportional representation
should be carried out to the extent
proposed by this committee, so that
each portion of the state should
have its proportional representation,
much good would result. I would be
glad to have this new state of Ne-
braska to be the first state in the
union to adopt this legislative re-
form. Mr. Chairman, it is sometimes
said by those who think lightly of
this measure that minoities are now
represented. It is worth while to
consider that for a moment. Upon
what principle am I represented by
a man whom I opposed with all my
power, — by a man who does not re-
present my principles, but comes in-
to the legislature to do all he can in
opposition to those principles? On
what principle is the minority repre-
sented by a member who is opposed
to every principle which the minority
believes in? That, sir, is not the
kind of representation that can stand
the scrutiny of the people. Now
Mr. Chairman, that I may not weary
the committee, I will leave this ques-
tion, which I have so imperfectly
discussed. A few words as to an-
other question. Is it expedient that
there should be minority representa-
tion? Is it right that the minority
should be represented, for if it is
then we need not inquire into the
I
128
PROPORTIONAL REPRESENTATION
Thursday]
WAKELEY
[July 27
expediency. If It is right, it is ex-
pedient. But looking beyond the
right I say, is it expedient to the
state that minorities should be rep-
resented? I believe it is better for
the state, better for the public that
there should be a minority represen-
tation in every representative body.
The history of the whole world
shows that the possession of unre-
stricted power, whether it be in
kings or legislative bodies, is danger-
ous — that it leads to abuse and cor-
ruption, and that the minority is a
check upon the majority. It tends
to prevent extreme measures. It
needs no argument to show that the
presence of a minority ready to op-
pose the extreme measures of the
majority and ready to expose the
tricks by means of which they pro-
pose to accomplish their ends, is of
the highest good to the people of the
state. A minority may be able to
point out errors of detail which may
have been made. Again. Mr. Chair-
man, how often it is that majorities
differ on questions of detail, then
the minority holds the balance of
power. How often it is that a par-
ticular law is passed, or a particu-
lar measure is adopted, not by the
representatives of the people, but by
a mere majority of those who repre-
sent but one-half of the people; and
wh^n you take a legislative body
elected on the plurality system and
then reflect that measures may be
carried out by a majority even of
these riien. it makes the matter ten
frdd worse. Mr. Chairman, look at
the history of reforms in govern-
ments all over the world, and what
does it show? It shows that all great
reforms have been inaugurated by
minorities, and finally carried
through by the impetus given them
by a small minority. Why is it so?
It is because there is a strong con-
servative principle among men which
causes them to cling to old institu-
tions, belonging to England; look at
the evils the poor people suffer, and
tell me if anything to benefit them
was ever carried through by the ma-
jority. No sir, these things are al-
ways started by a small number, who
feel that these principles are true.
They keep working away and the
time comes when their principles
are adopted by the majority. How
was it in reference to the homestead
laws? When the wife and children,
whatever misfortune, whatever re-
verses, might come upon the head of
the family, should have a shelter
and a refuge. I remember and my
friend on the left (Mr. Estabrook)
remembers and was an active mem-
ber at that time, when the consti-
tution framed by the state of Wiscon-
sin was voted down mainly because it
provided that the homestead should
be exempted from the debts of the
family. I remember how one of the
best members on that floor laid
down his commission and went home
saying that that one reason among
others that Wisconsin had. That was
presented originally by a minority,
and today it has the sanction of all
who have the framing of laws;, and
I doubt if today you find one man
who would say it should be stricken
from that constitution or statute
book Mr. Chairman, I know of no
book. Mr. Chairman, I know of no
more striking illustration of what
PROPORTIONAL REPRESENTATION
129
Thursday]
WAKELEY
July 27
may be accomplished by the sim-
ple entering in of this idea into the
legislative bodies of the country
than has been exhibited in the result
of the overthrowing of slavery in the
U. S. In the long struggle every
member here bore his part and I say
I refer to this only as a sign of
what may be thus accomplished.
I speak of it only as an illustration,
and as such I hope it will be receiv-
ed. Many of us remember when a
very small party represented it in the
house and Hale and Seward in the
senate. But we could see how it sud-
denly increased until it culminated in
a national triumph and in the events
of war resulted in its overthrow ulti-
mately. True, Mr. Chairman, that I
was not of the number. I shall per-
haps live as I have lived and die in
the belief that this great national
evil the good time might
have disappeared without the strife
that brought our institutions to the
brink of destruction. Others think
otherwise and regard this as the only
possible way.
Mr. Chairman, thanking the com-
mittee for the patience with which
they have listened to me and making
one other observation before con-
cluding.
For the ideas which I have advanc-
ed I make no claim of originality,
the form of expression only is my
own. They have been advanced far
more eloquently and advocated by
able thinkers and profound reasoners
on government in other countries as
well as this. In England, France
and Switzerland, and by men of re-
markable and comprehensive states-
manship. They have been adopted
and ratified by the people of the
great northwest in Illinois; and sir,
here in Nebraska the people will ap-
prove and ratify them, and sir, I
think we should do so here. I know
that this convention will rise against
all party consideration or local ad-
vantage in laying a fundamental
structure that shall stand when you
and I have passed away. Principles
that will remain when there shall
not be left one stone upon another
of this building we occupy. In this
question party considerations have
no place. Parties pass away but
principles are permanent and immut-
able.
Mr. MAJORS. Mr. Chairman. I
apprehend it is the pleasure of every-
member of this committee to advo-
cate the right when they find it and
we are not here to advocate our pet
views. I have listened with interest
to the argument of the gentleman
from Douglas (Mr. Wakeley) and
must acknowledge it has some force,
yet it appears to me that I can see
some principles in the working of
this minority representation that
might not work right. In present-
ing a case he has arranged numbers
that have worked well in the minori-
ty representation, by arranging the
number of representatives at nine
and number of voters at three thous-
and. I will arrange another set of
figures and see how it will turn out
in that direction. To illustrate we
have four representatives in one dis-
trict to be voted for at the same
time. There are six hundred voters
in the minority and nine hundred in
the majority party. The six hun-
dred by casting their votes for only
180
PROPORTIONAL REPRESENTATION
Thursday]
ESTABROOK
[July 27
two men would give them in the ag-
gregate twelve hundred votes for
earh of the two men. If the ma-
jority would cast their votes for three
men, and suppose they come to an
equal number the result would be
twelve hundred votes each, and in
that case the minority would tie, but
it is hardly to be supposed that the
majority would be prepared for this,
while on the other hand it wo.iid
naturally follow that tho .-ijnority
would resort to this advantage! and
in that case they would secure the
same representation as the nine hun-
dred.
So far as I understand the princi-
ple of our government its representa-
tion is, as clearly stated by the hon-
orable gentleman from Douglas, by
the masses of the people, rather than
to come up, as they did in the prim-
itive form of democracy, submit
their power to their chosen delegates
which they send here. I know that
there the minority have the same
opportunity to be represented as in
the old democracy form of govern-
ment and thev certainlv cannot claim
anything further, they must succumb
to the will of the majority. Then I
can see how this minority representa-
tion might work hardship. I just
submit these views that we may con-
sider together what would be the
result of the minority representation.
I do not hold that it is necessary at
all that we should adopt this system
of voting or this system of repre-
flentatinn in order to have that. I
hold that there are gentlemen iti
every party, where they conceive a
principle be right, have the moral
mAfthbod to stand by that principle
and defend it as has been done in
cases passed into history and has
finally triumphed by pressing the
truth they were in possession of upon
the consideration of the masses. I
do not hold that it is necessary in or-
der to purify legislative bodies that
this system should be inaugurated,
nor to send up representatives from
the minority party at home. Repre-
sentatives are sent from their dis-
tricts to represent the people of this
state, and will be held to account for
their action as representatives by
their constituents at home. I have
reason to believe there are men ca-
pable of wire-working and systemiz-
ing- so as to bring about results dele-
terious to the common people of the
country, they may do it for a time,
but the people will rise up and put
down such unfaithful representatives
and send out honest men from their
body. Under our present form I
think this has been frequently done,
and I think as a people in this state
we will be represented upon the old
basis of representation where the
majority shall rule, probably as cor-
rectly and successfully as we will to
inaugurate this new system..
Mr. ESTABROOK. Mr. Chairman.
I never in all my life have bestowed
as much thought on this subject as I
have tonight. It is an entirely new
theme to me, and knowing that the
matter had been presented in Illi-
nois, I made up my mind to vote for
a like proposition here to submit to
the people. I am not going now to
take a position for or against this
idea, I favor it in one respect, it is
new. I am glad to see my friend so
enthusiastic to bestow that richest of
FROPORTIONAL REPRESENTATION
131
Thursday;
ESTABROOK
[July 27
all boons to the free man, the right
of suffrage, even to the minority.
But sir, let me see a little how this
matter might work. We will sup-
pose that in a particular district the
■democrats have 900 voters and the
republicans 700, that there are three
candidates and each voter has three
votes to cast. Well, the democrats
will be tolerably apt "to cast their
three votes for each of the three can-
didates, that will be 900 each for the
democratic nominees, but the republi-
<;ans come up and know they have
but 700 votes for two giving them
1050 votes each and electing the
two candidates and the majority
"but one. Is not that possible? If
not I would like to hear the argu-
ment to meet it. If we are going to
adopt what we call the minority sys-
tem that shall give to the minority
the right to hold the majority in
their places. I do not believe I
would exactly be in favor of it. Now
then let me throw out this other
thought. Opposed to this scheme in
my own mind stands the theory of
■single districts, each district sending
out to the Legislature one individual
to be voted for by a given constitu-
■ency. That is to say, you have a
single district for Senator, and the
proposition of those who favor this
minority representation that in that
district it is not proposed to apply
to the Senate, it has not a universal
application, and if applied to repre-
sentation can only be applied to the
lower house. While you make a sin-
gle district in the Senate, you have
a district which shall send three to
the lower house and to those who
shall be elected from that representa
tive district apply the minority rule.
Let us see whether by the single dist-
rict system it would not be possible
that a majority should not have rep-
resentation. We will suppose for in-
stance that Sarpy, Cass and Saun-
ders counties are one senatorial dist-
rict, Cass and Saunders are repub-
lican but Sarpy is decidedly demo-
cratic. Now then, you make each
one of those counties a single rep-
resentative district. Cass goes
along about her business, Saunders
does the same, but Sarpy sends our
friend Grenell here to represent
them; does not the minority get the
representatives here? This feature of
single districts commends itself to
my regard. In the first place it is uni-
form in the lower house as in the
upper, in the next place it brings the
representative here? This feature of
face to face. Where you make a dis-
trict a single district you are apt to
make it of such dimensions as that
the particular interests of the dis-
tricts, and all the interests of the
district should be presented in the
person of the individual you send
to represent you in either branch.
While if you have one district and
send three individuals to represent
you, the stronger portion being in
Cass, it strikes me that Cass would
get them all if they sought to do it.
If the single district system can be
adopted, it seems to me every portion
of the state of Nebraska can be so
divided as that one man shall become
the embodiment of the constituency
he represents. So far as that is con-
cerned 1 have to acknowledge that
the single district system recom-
rhends itself to my regard. I only
132
PROPORTIONAL REPRESENTATION
Thursday!
STRICKLAND
[July 27
throw out these remarks now as the
objection occurred to me.
Mr. STRICKLAND. Mr. Chair-
man. I did not intend to say any-
thinR on this subject. I have lis-
tened with a great deal of pleasure to
my friend Judge Wakeley as I always
do, but I failed to hear any convinc-
ing argument that changes my mind
on this subject. The whole drift of
his argument is the representation
of party. A party is in the majority
in this country because it advocates
good men and good measures, or in
the minority because it advocates Im-
proper men and measures. He tells
you that a minority have in times past
away, along down through time, in-
augurated all these great impossibili-
ties. That is not a very proper word
to use but a better one than my
friend used. But did they ever in
England or any where else accom-
plish anything until they became
majorities? How did they become
majorities? Why by impressing them-
selves on the people, and the people
reflect back by electing men to rep-
resent them, and to represent this
truth. If Judge Wakeley's argu-
ment was right and carried its point
by reasoix. it ought to be apportioned,
and let us start a lot more majorities.
He says "How am I represented,
when the man who represents me
is one I am opposed to?" You are
represented by the man whom the
people thought was the better man
than the one you thought should be
returned. He, voting for a bad
man, or a bad principle, is not rep-
resented and should not be. Now, I
apprehend It Is just as necessary, and
always will be, in this country, to
have majorities and minorities, as
it is to have parties — one party a
check upon the other. But his prin-
ciple would leave a legislature all
scattered around indifferent to the
interests of anybody, but a majority
is responsible to the people for all
its acts. He speaks of the minority
exposing the majority. Why is there
anything done in this country, gen-
tlemen, in legislative bodies, by
night? Through the Press, the gen-
tlemen who advocate this question
scatter their documents boldly and
eloquently before the people. It has
been the custom of this country from
the start, from Whig and Tory,
where the great idea of a great prin-
ciple was struck when our forefathers
struck for liberty; they struck in op-
position to a number that was equal
to them in numbers. And they were
right; and notwithstanding that, and
they had used reason and argument,
and had supplicated to the throne of
grace — the king of England, and
they resolved to maintain their rights
from that time; right from the elec-
tion of the very first president; and
during his time, why, you remember
that but one vote in the Continental
Congress, saved Washington's head
to us and his name and fame for ever.
It kept the power and the ascendency
and when a party became rotten and
corrupt, and the intelligent people,
reflecting the mind and wishes of
the majority, desired a change, that
change was accomplished by the ac-
tion of majorities. What becomes of
this new majority, when it becomes
corrupt, fails to do its duty, in
representing the interests of the peo-
ple who put them in the position?
PROPORTIONAL REPRESENTATIO:^
13J
Thursday]
STRICKLAND-MAXWELL
[July 27
Down they go to a minority again. I
think it is just as necessary to have
these changes as that we should
have hot and cold air, and winds to
purify the atmosphere — just as nec-
essary to have majorities and mi-
norities. In the particular case my
friend speaks of, here are 900 against
500 of one way of thinking, and 400
left. Why, how simple! This gets
back to the fundamental law of dem-
ocratic government, my friend argued
so eloquently — the 500 representing
one set of principles, perhaps one
idea, and embody it in the one man,
vote for the one man; what shall the
400 do? Are they not represented?
Why, let them show by argument
and reason, that they are right, and
the 500 are wrong. It is one of the
grandest principles in this govern-
ment that majorities shall rule, gov-
ern, control and legislate. And they
exercise that power and will be held
strictly responsible for the exercise
of it. How little it takes to change
a great state like Pennsylvania! How
New York has shuffled to and fro.
For 25 years the state government
changes as much as once in four
years. Why it is right. Now, my
friend alluded to the labor reform
party which might claim representa-
tion. Why, if he would go into all
the schisms and isms, he would havb
the labor reform, woman's rights, the
; Chinamen, the Hindoo and the In-
I dian represented — one who believes
I in a God and one who don't. Why,
i what an idea for a great man like
i him to argue that every freckle upon
the body politic is to be represented
here. There is no argument in that,
all men electors, are free and equal.
Equal in their rights, equal in repre-
sentation, and at the polls, each is
a sovereign in himself to exercise the
elective franchise and go to the
polls and vote for one man in the ag-
gregate, and his views are represent-
ed.
Now, why this wonderful change
in our state? In our own county, only
two years ago, we sent a fine gentle-
man who was a fine, clever demo-
crat, and he came as the representa-
tive of the majority of the county
while the popular majority is re-
publican. Who are oppressed by
this system, and who are not? If
we send lepresentatives as we did
last winter, and they perform their
duties honorably, and again we send
these men, I pray God we will; and I
trust the coUnty will endorse us.
Why, mix this question up, in this
wise. Look at these gentlemen ap-
pearing here, and when in our coun-
ty it is said there is a majority of 500
in politics against them. They sent
these men here because they wanted
their energy and ability. This ques-
tion of minority representation is as
complicated as a steam engine, and
as little understood by the common
people, but yet, like a steam engine
if a little thing is out of place the
whole thing goes wrong. As my friend
Estabrook would say, he is opposed
to the system because he don't un-
derstand it. Well, I am in the same
fix; but I do understand the old sys-
tem and am satisfied.
Mr. MAXWELL. Mr. Chairman.
I move that the committee now rise,
report progress and ask leave to sit
again.
The motion was agreed to.
134
PK( )P0IIT10N AL REPRESENTATION
Friday]
FIFIELD— ESTABROOK
[July 28
Mr. STEVENSON. Mr. President.
The committee of tlie whole have had
under consideration the report of the
committee on electoral and repre-
sentative reform, report progress,
and ask leave to sit again.
Adjournment.
Mr. WEAVER. I move we now ad-
journ.
Leave of . Absence.
Mr.LEY. I ask leave of absence
until Thursdaj'.
Leave granted.
Adjournment Again.
Mr. GRAY. I move we adjourn un-
til 8 o'clock to morrow morning.
Mr. MANDERSON. I move to
amend by saying 9 o'clock.
The amendment was agreed to.
So the convention (at 9 o'clock
and 45 minutes) adjourned.
TWENTY-NINTH DAY.
Friday, July 28, 1871.
The convention was called to or-
der at nine o'clock by the president.
Prayer.
Prayer was offered by the chaplain
to the convention. Rev. L. B. Fifield,
as follows:
Great, Wise and Holy Lord and
King; many gifts and mercies we
seek in Thee. May this people find
law and light in Thee alone. May
the rule that is here made be so
strong and so just that every one
shall be satisfied and no one suffer.
Here may learning, ambition and all
wealth be consecrated on the altar
of truth to the service of God, now
and ever. Amen.
Reading of the Journal.
The journal of the last day's pro-
ceedings was read and approved.
Oommuiiications and Petitions
Mr. ESTABROOK. Mr. President.
I have a petition.
The following is the petition:
To the Constitutional Convention of
Nebraska.
We, the undersigned, respectfully
ask that the right of suffrage be con-
ferred upon women, upon the same
conditions and to the same extent as
upon men.
Signed, M. Mills, John DeLang
and twenty-four others.
The PRESIDENT. The petition
will be referred to the committee on
rights of suffrage.
Reports of Standing Committee.
Mr. WEAVER. Mr President. I
have a report of the committee on
counties, and ask that it be read by
title.
The PRESIDENT. The report will
be read twice by title and 150 copies
ordered printed. The secretary will
read the report of the standing com-
mittee on rights of suffrage, by title.
The secretary read the report by
title.
The PRESIDENT. The report will
be referred to the committee of the
whole.
Mr. WOOLWORTH. Mr. Presi-
dent. The select committee which
has had under consideration the sub-
ject of a board to take charge of
Public Lands and Buildings are ready
to report this morning. When this
report is received, the Executive Bill
will be ready to be disposed of in the
convention. I desire that this article
PROPORTIONAL REPRESENTATION
136
Friday'
WOOL WORTH- S COFIELD
[July 28
may be considered finally this morn-
ing. It will be utterly impossible for
me to be here next week, probably
any part of it, and I desire before I
go away that the consideration of this
article will be completed. I earnest-
ly hope the Executive article will
come up this morning.
Mr. McCANN. Mr. President. The
consideration of this report has been
put off again and again on account of
gentlemen's absence. I look forward
to the time that I may not be pres-
ent here, if this convention is to con-
tinue until the holidays, and I, too,
would like to have those reports in
which I am personally interested.
Yet I will cheerfully give way for the
taking up of this article, with the
understanding that the report of the
committee on Revenue and Finance
will be taken up next.
The PRESIDENT. The question is
on taking up the Executive article
in convention.
Mr. SCOFIELD. Mr. President.
Before that motion is put I would
like to submit the report from the
select committee to which was refer-
red the subject of Land Commission-
er and Superintendent of Public
Buildings.
The secretary read the report as
follows:
The select committee to which was
referred the subject of land commis-
sioner and superintendent of public
lands and buildings have had the
several propositions referred to th'em
under consideration and recommend
that the Executive article be amend-
ed by inserting in the third line of
the first section, after the words "at-
torney general," the words "commis-
sioner of Public lands and buildings."
That a new section be inserted in
said article to be numbered "20"
(the numbers of the sections follow-
ing being changed) the following:
The commissioner of public lands
and buildings, the secretary of state,
treasurer and attorney general shall
form a board which shall have joint
supervision and control of all the
grounds and lands of the state, the
state prison, asylum and other in-
stitutions thereof, except those for
educational ptirposes and shall per-
form such duties and be stibject to
such rules and regulations as may
be prescribed by law.
That the 2 3rd section of said arti-
cle be amended by adding the words
"The salaries of the commissioners
of public lands and buildings shall
be
G. B. SCOFIELD, Chairman.
By consent of the committee we
stibmit the following report:
"A land commissioner shall be
elected W'ho shall have control and
sale of all lands belonging to the
state as provided by the legislature.
A commissioner of public buildings
shall be elected who shall have con-
trol of all public buildings and
grounds belonging thereto and shall
let all new contracts for new state
buildings, additions, repairs and sup-
plies as shall be prescribed by law.
(Signed) J. N. CASSELL.
W. H. CURTIS.
Mr. WOOLWORTH. Mr. Presi-
dent. I move the convention take up
the executive article.
Mr. MYERS. Mr. President. I
hope the convention will adhere to
its rules and let this come up in the
afternoon in its order.
The PRESIDENT. The question
is on the motion of the gentleman
from Douglas (Mr. Wool worth) to
take up the executive article in con-
vention.
13("»
PRAYER— WOMAN SUFFRAGE
Friday]
CASSELIi-CURTIS-WOOL WORTH-GRAY
[July 28
The motion was not agreed to,
Mr. MAXWELL. Mr. President. I
move the report of the select commit-
tee just read be referred to the com-
mittee of the whole.
The motion was agreed to.
Mr. BALLARD. Mr. President. I
move we go into committee of the
whole on the report of the committee
on state, county and municipal in-
debtedness.
Mr. McCANN. Mr. President. I
now insist on my motion — I move
to amend the motion of the gentle-
man from Washington (Mr. Ballard)
by substituting the report of the
committee on revenue and finance.
Mr. WOOLWORTH. Mr. Presi-
dent. I hope that amendment will
prevail, as the gentleman (Mr. Mc-
Cann) gave way for my motion only.
The PRESIDENT. Gentlemen,
this amendment to the executive bill
has just been referred to the commit-
tee of the whole.
Mr. MYERS. Mr. President. I
move that the committee of the whole
be discharged from the further con-
sideration of this amendment on
the question of the executive.
The motion was agreed to.
Mr. BALLARD. Mr. President. I
•will withdraw my motion.
Mr. ESTABROOK. I think we can
clean up everything in regard to the
executive and school article.
Mr. McCANN. I withdraw my mo-
tion.
Mr. GRAY. Mr. Chairman. I
move that we consider now the re-
port of the executive committee In
connection with the report of the
I special committee.
1 The motion was agreed to.
The secretary read the report as
follows:
The select committee to which was
referred the subject of land commis-
sioner and superintendent of public
buildings have had the several propo-
sitions referred to them beg leave to
report that they have had the same
under consideration and recommend
that the executive article be amend-
ed by inserting in the third line of
the 1st section after the words "attor-
ney general" the words "commission-
er of public lands and buildings."
That a new section be inserted in
said article to be numbered "20" (the
numbers of the section following be-
ing changed) the following:
The commissioner of public lands
and buildings, the secretary of state,
treasurer, and the attorney general,
shall form a board which shall have
general supervision and control of all
the buildings, grounds and lands of
the state ,the state prison, asylum,
and all other institutions thereof, ex-
cept those for educational purposes,
and shall perform such duties and
be subject to such rules and regula-
tions as may be prescribed by law.
That the 2 3rd section of said arti-
cle be amended by adding the words
"the salaries of the commissioners of
public lands and buildings shall be —
G. B. SCOFIBLD, Chairman.
By consent of the committee we
submit the following report:
A land commissioner shall be
elected who shall have control and
sale of all lands belonging to the
state as provided for by the legisla-
ture.
A commisioner of public buildings
shall be elected who shall have con-
trol of all public buildings and
grounds belonging thereto and shall
let all contracts for new state build-
COM. PUBLIC LANDS AND BUILDINGS
137
Friday]
WOOLWORTH
[July 28
ings, additions, repairs and supplies
as shall be prescribed bv law.
(Signed) J. N. CASSELL.
W. H. CURTIS.
Mr. WOOLWORTH. Mr. Chair-
man. Perhaps it is desirable to state
to the convention that these amend-
ments which are proposed by the re-
port of the special committee refer
to the report of the executive com-
mittee. It is proposed in the first
place to amend the first section of
the executive article by inserting, in
the third line, after the word "gene-
ral" the words "commissioner of
public lands and buildings." The
convention will observe that when
this amendment is made, the eighth
line now applicable to the six officers
of the executive department, that
those officers shall perform such du-
ties as may be prescribed by law, will
also be applicable to the commission-
ers of public lands and buildings, as
well as the other executive officers;
and also the twenty-sixth section pro-
viding for bonds, will apply to that
officer as well as to the others. It
is proper to state, sir, that another
proposition Is brought in here pro-
Tiding for two instead of one officer.
That is to say — a commissioner of
public lands and superintendent of
public buildings, to elect two officers
to have charge of these matters in-
stead of one. That is a matter which
I suppose the convention will now
have to determine. In order to bring
the matter before the convention I
move to amend the first section strik-
ing out the word "and" before the
words "attorney general" in the
third line, and inserting after the
■words "attorney general" the words
"and commissioner of public lands
and buildings."
Mr. GRIGGS. Mr. Chairman. It
appears to me as if the duties of state
land commissioner would be all that
one person ought to perform, and
I would like to hear the ideas of the
chairman of the executive committee
upon that question. As I understand
this amendment it only provides for
one commissioner who shall be
commissioner of state lands and also
of public buildings.
Mr. WOOLWORTH. Mr. Chair-
man. So far as I am concerned I
have no particular choice in the mat-
ter. It seemed, when the matter was
before the committee of the whole the
other day, to me, at least, as if the
idea was to create as few officers as
necessary, and the object of making
one instead of two officers was merely
for the purpose of economy. I ap-
prehend sir, that for a year to come
the commissioner of public lands
will have a great deal to do. Let
me state somewhat in detail what his
duties, in my view, should be. And
I took the pains, when home the last
time, to advise upon this subject with
Mr. Davis, who is the commissioner
of lands of the Union Pacific railroad
company, and as such officer has
sold, within the past year, between
one and two million of acres of land.
He was the gentleman who organized
the land department of that com-
pany, and has carried it to a point
of very great perfection. I thought,
of all the gentlemen within my ac-
quaintance, he was the one best fit-
ted to apply to for information up-
on the subject. His idea was that
there should be one man charged
I
138
COM PUBLIC LANDS AND BUILDINGS
Friday)
WOOLWORTH
[July 28.
with this business; and that during
the first year of the occupancy of his
office he would be obliged to labor
very hard. First in gathering up the
land, or in finding out what lands
there are and what lands there ought
to be; and in the next place making
his plats, preparing his books of rec-
counts, and other records for the pu"-
pose of keeping all accounts of the
sales and other distribution of these
lands. To attend to this matter, we
talked over, for the first year would
be a very onerous task. But he
said after that work was once done
a single man would be able to carry
on the business of the office without
being employed but a portion of the
time. This was his idea. So much,
sir, for that office.
Now, as to the duties of an officer
who shall be called a superintendent
of public buildings. What will he
have to do? He will have charge of
all these state public buildings scat-
tered throughout the state. Not to be
sure a personal charge of the ash
pans and the other duties that would
naturally devolve upon a janitor; but
the general care of the buildings. See
to the insurance, and that there was
proper protection from fires and
other such like matters. Also to
the contracts and the work of en-
larging or of erecting the public
buildings. The question is are these
duties incompatible? If they are not
the next is whether they can be dis-
charged by one man. Now, that they
are not incompatible, if a man has
the time; if a man keeping but few
offices is able to fill them; that I ap-
prehend there is no sort of question;
but whether a man, for a year or so.
will be able to attend to all these du-
ties, is indeed, I think, a very doubt-
ful question. But, sir, in the dis-
charge of these duties, which Mr.
Davis told me a land commissioner
would have to do, he would necessari-
ly, whether he were vested with these
two offices or charged with the duties
of one alone, be obliged to have
clerks and draftsmen; draftsmen to
make these plots, clerks to work up
the catalogue, the lists of the differ-
ent kinds of lands, which the state
owns, and get them in order. Then,
beyond that, general attention to the
securities which the state if it has
not in fact, at any rate, ought to have,
and all the sales of the public lands.
In the discharge of these duties, I
say, whether one or two offices be
created, the land commissioner will
be obliged to have some assistance of
a clerical nature.
If the gentleman asks for my own
personal opinion upon this subject
my idea would be to create one office-
— I am not strenuous — and then
leave it to the legislature, under one
of the sections of the executive arti-
cle, the 24th section, to provide for
such temporary agents, agents ap-
pointed for a temporary purpose, to-
discharge any duties that might seem
to be of temporary urgency and ne-
cessity. That is my idea. I have no-
personal wishes in the matter.
Mr. CASSELL. Did I understand
that the gentleman from Gage of-
fered an amendment?
Mr. GRIGGS. I do not.
Mr. CASSELL. I would move tO'
amend by inserting after the word"
"attorney" the words "land commis-
COM. PUBLIC LANDS AND BUILDINGS
139
Friday]
WOOLWORTH-C A S SELL— MYERS
[July 28
sioner and commissioner of public
buildings."
Mr. WOOLWORTH. As the sec-
tion now stands, without amendment
either from the special committee or
the gentleman from Lancaster, there
will be but the governor, lieutenant
governor, secretary of state, auditor
of public accounts, treasurer, super-
intendent of public instruction, and
attorney general, as the officers of
the executive . department; if the
amendment proposed shall obtain,
then there will be, besides these offi-
cers, the office of commissioner of
public lands; if the amendment of
the gentleman from Lancaster should
obtain, there will be, besides the of-
ficers of the executive department as
it now stands, both a commissioner
of public lands and a commissioner of
public buildings.
Mr. MYERS. If this proposes to
create an additional office to that of
land commissioner, I desire a defi-
nite expression of opinion. I call
for the ayes and nays on the adop-
tion of the amendment.
Mr. ESTABROOK. It is under-
stood that these two commissioners
are to constitute a part of the board
of commissioners, or are they, ac-
cording to this amendment, if adopt-
ed, to be separate and independent
officers?
Mr. WOOLWORTH. They would
be independent.
Mr. HASCALL. As I understand
all we do now is create the of-
fice, and in our future action we de-
cide whether he shall act separately
or in connection with other members
of the board.
Mr. CASSELL. Mr. Chairman. 1
had a conversation this morning
with the auditor of the state, and he
says that the duties which devolve
upon the land commissioner will be
as much as he and a clerk or two
can perform; and there is a very
great necessity for a commissioner of
public buildings, and he would have
a great deal of work to perform. The
idea of the gentleman that this is
going to be more expensive to the
state is, in my judgment, very errone-
ous. It is well known by the gentle-
men of this convention, that, at the
present time, there are no less than
from twelve to twenty different in-
dividuals employed, and under pay
from the state to perform just half
the duties, the gentleman from Doug-
las proposes to have a land commis-
sioner. In my opinion, while this
■will create a little expense, the state
will save a good deal more by having
this conducted by one man, and he
under the control of the legislature,
than to pay so many different men.
It has been said that many thousand
dollars might have been saved to
the state in the last two years, if
such a commissioner had been in ex-
istence; and if the affairs had beeu
conducted that way instead of pro-
miscuously, as they have been. The
state ought to create the position.
The grounds around this capitol
need ornamenting. Already over
$2,000 have been expended over them
no-vM, and what does it amount to?
Some gentlemen have said $50 would
have done it and another said it
could have been done for $20. Now,,
why all this expenditure? The reas-
on of it is simply because these mat-
140 COM. rUBLIC LANDS AND BUILDINGS
Fridayl
CA SSELL-TOWLE
[July 28
ters have been conducted too loosely,
and the reason of that is — there has
been no one whose duty it was, es-
pecially, to attend to these matters.
We should appoint some man, with a
salary; and if we did we would save
thousands of dollars to the state.
There are many things about this
building that require attention, the
lightning rods, etc.; and we ought to
have a commissioner to attend to
these matters. I think if there had
been a commissioner appointed dur-
ing the last two years there would
have been enough saved to pay his
salary for the next ten years. My
idea is that this commissioner should
have the power to make contracts for
the public buildings, buy supplies,
coal, etc. The coal, for instance,
should be bought in the summer,
when coal is cheap, freights low.
Several hundred dollars could be
saved in this way each year; but we
find that coal has been bought in
the winter, when it is the highest,
and freights, too, are higher. I think
Mr. President, the duties wil be too
onerous for one man to perform, and
I am in favor of two commissioners.
The PRESIDENT. The question is
upon the amendment offered by the
gentleman from Lancaster.
Mr. TOWLE. Mr. President. I
would like to say a word, if I may be
allowed. ("Leave" "Leave.")
I hope the amendment of the
gentleman from Lancaster will not
prevail, as it is loading down the
constitution. I think a man of first-
<;lass ability can perform all the du-
ties of these offices, with a corps of
good clerks under him. There will
be scarcely any building done by
these officers. I undertake to say
that there will not be much duty for
this commissioner to do in a short
time. Then we find we have an offi-
cer elected with a salary of perhaps
$l,000or$l,800,and nothing for him
to do, except, perhaps to look after
the trees, put up lightning rods, etc.
It is necessary for some man of abili-
ty and character to take hold of our
land affairs. I believe, sir, that the
two can be combined in one and then
there will not be half enough for him
to do, except the first year, which
will be occupied in bringing order
out of chaos.
("Question," "question.")
The secretary read the amend-
ment as follows: "After the wora
"general" insert, "land commissioner
and commissioner of public build-
ings."
The yeas and nays being demand-
ed, the secretary proceeded to call
the roll.
The President announced the re-
sult, — ayes 19, nays 28 — as follows:
AYES.
Ballard,
Cassell,
Curtis,
Estabrook,
Granger,
Griggs,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Abbott,
Boyd,
Campbell,
Eaton,
Gibbs,
Gray,
McCann,
Majors,
Mandersoni,
Maxwell,
Moore,
Newsom,
Parchin,
Philpott,
Reynolds —
19.
NAYS.
Hascall,
Lake,
Ley,
Lyon.
Mason,
Myers,
COM. PUBLIC LANDS AND BUILDINGS
141
Friday]
TOWLE— WOOL WORTH— ROBINSON
[July 28
Neligh, Tisdel,
Price, Towle,
Scofield, Vifquain,
ShafE, Wakeley,
Sprague, Wilson,
Stevenson, Woolworth, — 28.
Thummel,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President. — 5.
Robinson,
So ttie amendment was not agreed
to.
The PRESIDENT. The question
is upon the motion to strike out the
word "land" in the 3rd line, and in-
sert "public buildings".
Mr. WOOLWORTH. Mr. Presi-
dent. The select committee propos-
ed, in the first amendment, one oflBce.
and to have the person filling the of-
fice discharge such duties as shall
be prescribed by law, just the same
as any other state officer. Section
20 follows to the effect that this of-
ficer, together with the secretary of
state, treasurer, and the attorney
general shall form a board which
shall have joint control of the lands
and public buildings of the state, ex-
cept such as relates to education, and
Shall perform such duties as shall be
prescribed by law. That is to say, that
he is a special officer who shall have
special duties to perform.
The secretary read the amendment
offered by the gentleman from Saun-
ders ( Mr. Sprague) as follows:
Strike out from the third line the
words, "public buildings and," and
insert in the third line after the word
"state" the words "who shall also
be a commissioner of public build-
ings."
The PRESIDENT. The question
is on the amendment offered by the
gentleman from Saunders (Mr.
Sprague.)
The convention divided and the
amendment was not agreed to.
Mr. ROBINSON. Mr. President. I
have an amendment which I desire
to offer, it applies to the first, second
and third sections. I have written
out the three sections embodying the
amendment which I will send up.
The secretary read the amendment
as follows:
Sec. 1. The executive department
shall consist of a governor, lieuten-
ant governor, secretary of state, au-
ditor of public accounts, treasurer,
superintendent of public instruction,
attorney general and commissioner
of public lands and buildings, who
shall each hold his office for the term
of two years from the first day of
January next after his election and
until his successor is elected and
qualified. Provided, however, that
the first election of said officers shall
be holden on the — day of 187 —
and the officers then elected shall
each hold his office for the term of
one year and until his successor is
elected and qualified. They shall, ex-
cept the lieutenant governor, reside
at the seat of government during
their term of office and keep the pub-
lic records, books and papers there
and shall perform such duties as may
be prescribed by law.
Sec. 2. The treasurer shall be
ineligible to said office of treasurer
for two years next after the end of
the time for which he was elected.
ELECTION.
Sec. 3. The officers of the execu-
tive department shall after the first
election hereinbefore provided for
be elected at the general election for
members of the house of representa-
tives to be holden in the year 1872,
and every two years thereafter at
such times and places as may be pre-
scribed by law.
142
EXECUTIVE STATE OFFICERS
Friday 1
PHILPOTT— ROBINSON
[July 38
Mr. PHILPOTT. Mr. President. I
•offer an amendment to the amend-
ment. It will leave the first section
as it is except adding the words "as
herein provided," and amend the
third section so as to read "the offi-
cers of the executive department
shall be elected for a term of one
year at the general election for mem-
bers of the house of representatives
to be held in the year 1871, and there-
after the term of office shall be two
years, and said officers shall be elect-
ed at such time and place as may be
prescribed by law."
Mr. ROBINSON. I will state, Mr.
President, I have looked over this
section carefully and I am very cer-
tain my amendment covers just what
I meant it to, and I don't know that
this amendment does. The only
change I intended to make was fix-
ing the time of the election.
Mr. TOWLE. Mr. President. I
think that matter of time should be
left to the committee on schedule.
Mr. ABBOTT. Mr. President. If
the amendment to the amendment
was not seconded, I move to amend
the amendment by striking out the
second section.
The aj'es and nays were demanded.
The secretary called the roll and
the President announced the result.
Ayes, 2 5, nays, 24, as follows:
Abbott,
Boyd,
Cassell,
Estabrook,
Oibbs,
frfanger,
Gray,
Griggs,
YEAS.
Hascall,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Scofield,
Thummel,
Wakeley,
Mr. President. -
-25.
NAYS.
Robinson,
Shaff ,
Sprague,
Stevenson,
Stewart,
Thomas,
Tisdel,
Towle,
Vifquain,
Weaver,
Wilson,
Woolworth, — 24.
Majors,
Maxwell,
Neligh,
Philpott,
Reynolds,
Ballard,
Campbell,
Curtis,
Eaton,
Hinman,
Mason,
Manderson,
Moore,
Myers,
Newsom,
Parchin,
Price,
ABSENT AND NOT VOTNG.
Grenell, Spiece.
Parker,
Mr. PHILPOTT. Mr. President. I
withdraw m amendment for the pur-
pose of considering the amendment
of my colleague (Mr. Robinson.)
Mr. GRAY. Mr. President. I
move to amend the first section of the
amendment by inserting the words
"but when that day shall fall on Sun-
day the term of office shall commence
on the following day."
Mr. ROBINSON. I do not see
what possible objection there can be
to the term of office commencing on
Sunday, there is nothing wicked about
it that I know of. It is not neces-
sary they shall be sworn in on the
day the term commences.
Mr. LAKE. Mr. President. I
agree with the gentleman from Lan-
caster (Mr. Robinson) that it is en-
tirely useless to put in this clause.
There is a provision that all these
officers shall hold their office until
their successors are qualified, and
they would not be qualified if
EXECUTIVE STATE OFFICERS
143
Friday]
GRAY— THOMAS
[July 2H
the year commenced on Sunday until
the following day.
Mr. GRAY. I withdraw the
amendment.
Mr. THOMAS. Mr. President. I
understand the object of this section
is to have the election of our state
officers in the same year as the Presi-
dential election. I hope the amend-
ment will not prevail, for I think it
would be much better that the state
officers should not be elected in that
year.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Lancaster (Mr. Robinson).
The ayes and nays were demanded.
The secretary called the roll, and
the President announced the result,
ayes 25, nays, 22, as follows:
YEAS.
Abbott,
Ballard,
Cassell,
Curtis,
Granger,
Gray,
Griggs,
Hascall,
Kenaston,
Kilburn,
Kirkpatrick,
McCann,
Majors.
Boyd,
Campbell,
Eaton,
Estabrook,
Gibbs.
Hinman,
Lake,
Ley,
Lyon,
Mason,
Maxwell,
Manderson,
Moore,
Myers,
Neligh,
Philpott,
PricQ,
Robinson,
Stewart,
Tisdel,
Thummel,
Weaver,
Wilson, — 25
NATS.
Newsom,
Parchiu,
Robinson,
Shaff
Sprague,
Stevenson,
Thomas,
Towle,
Vifquain,
Wakeley,
Woolwofth,-
-22.
ABSENT OR NOT VOTING.
Grenell, Splece,
Parker. Mr. President.
Scofield.
The PRESIDENT. The secretary
will read section four.
Mr. HINMAN. I rise to a point of
order. I do not know that these sec-
tions have passed as amended.
The PRESIDENT. The gentle-
man is right. The question now is
upon the adoption of the first section,
as amended; and will then recur on
section two and three.
The section was adopted.
The PRESIDENT. The question is
on the adoption of section three.
Mr. HINMAN. I wish to re-in-
state section two, with this addition.
After the word "The" add "officers of
the executive department." and
strike out the words "he was," and
insert "they were."
Mr. NEWSOM. As a substitute, Mr.
Chairman, to the gentleman's motion
I offer the following — "The treasur-
er shall be ineligible for the office of
treasurer for two years after he shall
have served two consecutive terms."
Mr. STEVENSON. I move to
amend by inserting "the balance of
the executive officers."
The President. That would hard-
ly be in order at this moment.
Mr. HINMAN. The object is sim-
ply to destroy the use of the patron-
age of these officers for securing their
re-election. I believe the routine of
office is better, if you cannot change
the features of the state fdr two
years, by at least having another
complexion. These men learn too
much in two years.
144
EXECUTIVE STATE OFFICERS
Friday]
ROBINSON-PHILPOTT
[July 2g
Mr. ROBINSON. If I was not in
favor of any provision of this kind
I should certainly vote for the
amendment. Now the meaning of
the amendment, as I would construe
it, is, that he must serve two terms;
and suppose, in order to make him-
self eligible for the third term, he
should resign? It seems to me the
amendment is deQcient.
Mr. ABBOTT. If the mover of
this resolution will withdraw it, and
offer one making all the executive of-
ficers ineligible, I will vote for it,
but I see no reason for doing it in
the case of one man and not all.
The yeas and nays were demand-
ed.
The secretary called the roll, and
the president announced the result,
yeas, 16; nays, 31, as follows:
YEAS.
Eaton,
Hascall,
Kenaston,
Kirkpatrick,
Lake,
Mason,
Manderson,
Maxwell,
Abbott,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hinman,
Kilburn,
Ley.
Lyon,
McCann,
Moore,
Newsom,
Sprague,
Stevenson,
Thomas,
Towle,
Wakeley,
Woolworth,-
-16.
NAYS.
Majors,
Myers,
Neligh,
Parchin,
Philpott,
Price,
Reynolds,
Robinson,
Shaff,
Stewart,
Thummel,
Tisdel,
Vifquain,
Weaver,
Wilson,. — 31.
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President, — 5.
Scofield,
So the substitute was not agreed
to.
The PRESIDENT. The question
now recurs on the proposition of the
gentleman from Lincoln.
Mr. McCANN. I offer a substitute
— "the oflBcers named in this section
shall be ineligible to their respective
offices for two years next ensuing,
after having served two consecutive
terms."
Mr. PHILPOTT. Mr. President. I
am opposed to the motion, for several
reasons
The PRESIDENT. The ayes and
nays are called and no debate is
in order, without general consent.
Mr. BALLARD. Mr. President. I
wish to offer an amendment.
The PRESIDENT. Has he leave?
("No," "no," "Leave, leave.")
Leave not granted.
The PRESIDENT. Pro tempore.
The question is upon the substitute.
"The officers named in this sec-
tion shall be ineligible to their re-
spective office .sfor two years next en-
suing after having served two con-
secutive terms."
The ayes and nays being demand-
ed the secretarv proceeded to call the
roll.
Mr. PHILPOTT. (When his name
was called) Mr. President. I rise to I
explain my vote, I will not vote to |
make a man ineligible to office with- i
out good cause. For that reason, I !
vote no.
The President announced the re-
sult, ayes, 22; nays, 26, as follows:
OFFICERS ELIGIBILITY FOR OFFICE
145
Friday]
MANDERSON— MYERS-HASCALL
[July 28
AYES.
Boyd,
Campbell,
Curtis,
Granger,
Griggs,
Hascall,
Hinman,
Kirkpatrick,
Lake,
McCann,
Mason,
Abbott.
Ballard,
Cassell,
Eaton,
EKtabrook,
Gibbs,
Gray,
Kenaston,
Ley,
Lyon,
Majors,
Manderson,
Myers,
Maxwell,
Moore,
Newsom,
Price,
Sprague,
Stevenson,
Thummel,
Thomas,
Wakeley,
Wilson,.
Woolworth,-
-22.
NAYS.
Neligh,
Parchin.
Philpott,
Reynolds.
Robinson,
Scofield,
Shaff,
Stewart,
Tisdel,
Towle,
Vifquain,
Weaver, — 2C.
ABSENT OR NOT VOTING.
Grenell,
Parker,
Speice,
Mr. President, — 4.
So the amendment was not agreed
to.
The PRESIDENT Pro tempore.
The question now recurs upon the
proposition of the gentleman from
Lincoln (Mr. Hinman.)
The secretary reads:
"All officers of the executive de-
partment shall be ineligible for office
for two years next after the term of
office for which they were elected."
The ayes and nays heing demand-
ed, the secretary proceeded to call
the roll.
I The President announced the re-
j suit, — ayes, 15; nays, 33, — as fol-
j lows:
' 10
AYES.
Shaff,
Sprague,
Stevenson,
Stewart,
Thomas,
Vifquain,
Weaver, — ^15.
NAYS.
-33.
Hinman,
Ley,
Mason,
Moore,
Neligh,
Newsom,
Parchin,
Price,
Abbott, Lyon,
Ballard, McCann,
Boyd, Majors,
Campbell, Manderson,
Cassell, Maxwell,
Curtis, Myers,
Eaton, Philpott,
Estabrook, Reynolds,
Gibbs, Robinson,
Granger, Scofield,
Gray, Thummel,
Griggs, Tisdel,
Hascall, Towle,
Kenaston, Wakeley,
Kilburn, Wilson,
Kirkpatrick, Woolworth,-
Lake,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parkei*, Mr. President, — 4.
So the amendment was not agreed
to.
Mr. MANDERSON. Mr. President.
I move to insert in Sec. 2, the follow-
ing:
"The treasurer shall be ineligible
to the office of treasurer for two
terms next after the two years for
which he was elected."
Mr. MYERS. Mr. President. I
move to amend the section by insert-
ing "The treasurer shall be ineligi-
ble to any office under the sun."
Mr. HASCALL. I move to
amend by adding "or under the
moon," also.
Mr. MANDERSON. Mr. President.
It seems to me this is a very proper
rule to apply to the disbursing of-
ficer of the state. I would not ap-
14t)
ELIGIBILITY OF STATE TREASURER
Friday)
MANDKRSON-ROBINSON-GRIGGS
lJul.v28
ply It to all offlrers. but the man who
handles \hv money of the state
should be frequently relieved. The
disbursinRofficers of the United States
army are frequently relieved, and it
is found to be a wholesome regula-
tion. It is customary to have army
disbursing officers turn over all they
have to account for and make proper
accounting not only to the officer who
relieves them, but to the government.
One officer is sent to relieve another
at some post and he is sent to some
other and it is necessary he should
turn over and account for all the
property and money that has come
into his possession, and it seems to
me is a good rule.
Mr. ROBINSON. Mr. President. I
am opposed to this amendment. It
may render a man ineligible for life;
at any rate ten years may intervene
between the terms that he holds.
Mr. MANDERSON. To relieve it
of that objection I would insert the
■word "consecutive."
Point of Order.
Mr. MYERS. Mr. President. This
is the same question on which the
convention has just passed and
therefore it is not in order.
Mr. KIRKPATRICK. Mr. Presi-
dent. It strikes me sir, that the pro-
position is clearly out of order, but
if it is held in order I hope it will
not be adopted.*
Mr. GRIGGS. Mr. President.
Neither of the gentlemen who have
last spoken upon this subject have
raised the point of order. I now
rise to a point of order. I hold that
the amendment is not in order. I will
read from Cushing's Manual, Section
7, on anipndments.
"If an amendment is proposed by
inserting or adding a paragraph or
words, and the amendment is reject-
ed, it cannot be moved again to in-
sert the same words or a part of
them: but it may be moved to insert
the same words with others, or a part
of the same words with others^ pro-
vided the coherence really make
them different propositions."
Now I understand that the gentle-
man's amendment is just the same
as that offered by the gentleman
from Otoe (Mr. Mason) which the
convention voted down, and under
this rule it is out of order.
Mr. MANDERSON. Mr. President.
I will explain
Mr. MYERS. I call the gentleman
to order.
The PRESIDENT. If the gentle-
man desires to speak to the question
of order, he is in order.
Mr. MANDERSON. I do, Mr. Presi-
dent. This proposition differs from
the one offered by the gentleman
from Otoe (Mr. Mason) in that it
requires that he shall be ineligible
for two terms, the change of words
makes it a different proposition.
The PRESIDENT. The proposi-
tion is in order.
Ineligibility of Treasurer.
The PRESIDENT. The question is
on the adoption of the proposition.
The ayes and nays are demanded, the
secretary will call the roll.
The vote was taken, and the re-
sult was announced — ayes, 27; nays
21 — as follows:
AYES.
Boyd,
Hascall,
Campbell,
Hinman
Curtis,
Lev,
Eaton,
McCann
ELIGIBILITY FOR STATE OFFICE
147
Friday]
BALLARD-STEVENSON— HASCALL
[July 28
Mason,
Manderson,
Maxwell,
Moore,
Newsom,
Price,
Robinson,
Shaff,
Sprague,
Stevenson.
Stewart,
Thummel,
Thomas,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,-
-27.
NAYS.
Abbott, Lake,
Ballard, Lyon,
Cassell, Majors, •
Estabrook, Myers,
Gibbs, Neligh,
Granger, Parchin,
Gray, Philpott,
Griggs, Reynolds,
Kenaston, Scofleld,
Kilburn, Tisdel, — 21.
Kirkpatrick,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President, — 4.
So the proposition was adopted.
Mr. BALLARD.. Mr. President. I
wish to offer this amendment.
"The treasurer and all other state
officers shall be ineligible to hold of-
fice after they shall have served a
lifetime in such office."
I offer this for the reason that I
want to get on the record.
Mr. STEVENSON. I move that
that twelve inches square of the rec-
ord be devoted to the gentleman from
Washington (Mr. Ballard.)
The PRESIDENT. This is all out
of order. The question is on the
adoption of the section.
The section was adopted.
The secretary read the next sec-
tion as follows:
Sec. 4. The returns of every
election for the above named officers
shall be sealed up and transmitted,
"by the returning officers, to the sec-
retary of state, directed to "The
Speaker of the house of Represen-
tatives, who shall, immediately after
the organization of the house, and
before proceeding to other business,
open and publish the same in the
presence of a majority of each house
of the legislature, who shall, for
that purpose, assemble in the hall of
of the house of representatives. The
person having the highest number
of votes for either of said offices shall
be declared duly elected; but if two
or more have an equal, and the high-
est, number of votes, the legislature
shall, by joint ballot, choose one of
said persons for said office. Contest-
ed elections for all of said offices
shall be determined by both houses
of the legislature, by joint ballot, in
such manner as may be prescribed
by law.
The section was adopted.
The secretary read the next section
as follows: •
Sec. 5. No person shall be eligible
to the office of governor or lieutenant
governor who shall not have attained
the age of twenty-five years, and
been for two years next preceding
his election, a citizen of the United
States and of this state. Neither the
governor, lieutenant governor,
auditor of public accounts, secretary
of state, superintendent of public in-
struction nor attorney general shall
be eligible to any other office during
the period for which he shall have
been elected.
Mr. HASCALL. I move to amend
by inserting "Commissioner of Pub-
lic Lands and Buildings," after the
word "general."
The motion was agreed to.
Mr. MOORE. Mr. President. I
move to strike out the word "twenty-
five" in second line and insert "thir-
ty."
The motion was not agreed to.
148
ELIGIBILITY FOR STATE OFFICE
Friday]
PRICE— WOOLWORTH— ROBINSON
[July 28
Mr. PRICE. Mr. President. It
seems to me the last part of this sec-
tion should be amended, I think it
should bo stricken out.
Mr. WOOLWORTH. Mr. Presi-
dent. I wish to say a few words with
regard to these amendments, and al-
so with regard to the general busi-
ness of making amendments to the
report. We have spent an hour on
the second section. All these mat-
ters were gone over in committee of
the whole and finally the article was
brought to perfection. Of course it
is perfectly right and perfectly pro-
per that matters of principle, matters
involving the question, for instance,
that came up on the first section,
whether the state election should be
brought around so as to come at the
same ^ime as a presidential election*
a very important matter. Of course
it is perfectly proper to propose these
other amendments, what I wish to
say is, these liberal amendments pro-
posed will end just as the second sec-
tion ended, by coming back substan-
tially where we were before. I
merely throw out these suggestions
for the purpose of saving Jime. I
am opposed to the amendment of the
gentleman from Jefferson (Mr.
Price). If a man is elected to a
state office, if he will take all the
pains he will have to take in
order to get elected to a state office, go
to his convention, get nominated, go
through all the expense and trouble
of an election before the people,
and then, after putting the people,
and his party friends to all that ex-
pense and trouble concludes not to
qualify. I think he has shown by that
course of conduct he Is Just the sort
of man who ought to be debarred
from holding public office for that
period of years. I do not propose in
this convention to follow through all
the amendments that may be proposed
one by one, and show their desir-
ability or whether they are not de-
sirable. So far as I thought it pro-
per I did follow these amendments
through, when I thought they ought
to be made I said so; when I thought
they ougiit not to be made I said so.
Mr. ROBINSON. I offer the fol-
lowing substitute for section five:
"Any elector shall be eligible to
any office provided for by this con-
stitution, but neither of the officers
named in this article shall be eligible
to any other office during the period
for which he shall have been
elected."
I move its adoption.
Mr. KIRKPATRICK. Mr. Presi-
dent. There is certainly no conflict
in the substitute offered by the gen-
tleman and anything which has been
adopted by this convention.
Mr. HASCALL. Mr. President. I
see we have not passed upon this
section of eligibility, that having
been adopted in the committee of the
whole and not by the convention. I
withdraw my objection.
The substitute was lost.
Mr. PRICE. I withdraw my
amendment.
The section, as amended, was adop-
ted.
The secretary read the next section
as follows:
Sec. 6. The supreme executive
power shall be vested in the gover-
nor, who shall take care that the laws
be faithfully executed.
POWERS OF GOVERNOR
149
Friday]
ROBINSON— HASCALL
[July 28
The sixth section was adopted.
The secretary read the next section
as follows:
Sec. 7. The governor shall, at
the commencement of each session,
and at the close of his term of office,
give to the legislature information,
l)y message, of the condition of the
state, and shall recommend such
measures as he shall deem expedient.
He shall account to the legislature,
and aecompany his message with a
statement of all monies received
and paid out by him from any funds
subject to his order, with vouchers,
and at the commencement of each
regular session, present estimates of
the amount of money required to be
raised by taxation for all purposes.
Mr. ROBINSON. There was an
amendment made in the second line
of this section in the committee of
the whole, adding the words "and
whenever the legislature may re-
quire."
The seventh section was adopted
as amended.
The secretary read the next section
as follows:
Sec. 8. The governor may, on ex-
traordinary occasions, convene the
legislature by proclamation, stating
therein the purposes for which they
are convened; and the legislature
shall enter upon no business except
that for which thej" were called to-
gether.
The eighth section was adopted.
The secretary read the next section
as follows:
Sec. 9 In case of a disagreement
between the two houses with respect
to the time of adjournment, the gov-
ernor may. on the same being certi-
fied to him by the house first moving
the adjournment, adjourn the legis-
lature to such time as he thinks pro-
per, not beyond the first day of the
next regular session.
Mr. HASCALL. I move to add "but
no general session of the legislature
shall be so adjourned by the governor
until twenty days after the com-
mencement."
The yeas and nays were demand-
ed.
The secretary called the roll, and
the president announced the result,
yeas, 9; nays, 38, — as follows:
YEAS.
Estabrook,
Lyon,
Hascall,
Myers,
Hinman,
Neligh,
Kenaston,
Price, — 9.
Kirkpatrick,
NAYS.
Ballard,
Newsom,
Boyd,
Parchin,
Campbell,
Philpott,
Cassell,
Reynolds,
Curtis,
Robinson,
Eaton,
Scofield,
Gibbs,
Shaff,
Granger,
Sprague,
Gray,
Stevenson,
Griggs,
Stewart,
Kilburn,
Thummel,
Lake,
Thomas,
Ley,
Tisdel,
McCann,
Towle,
Majors,
Vifquain,
Mason,
Wakeley,
Manderson,
Weaver,
Maxwell,
Wilson,
Moore,
Wool worth
-38.
ABSENT AND NOT VOTING.
Abbott, Parker,
Grenell, Speice,
So the amendment was not agreed
to.
Mr. WAKELEY. I move an
amendment to strike out the words:
"The house first moving the adjourn-
ment," and insert "either house."
I do not remember that this matter
was considered in the committee of
150
POWERS OF GOVERNOR
FYidsy]
WAKELEY-HASCALL
[July 28
the whole maturely. It does not oc-
cur to me that there is any good
reason for requiring this certificate
to come from the house first adjourn-
ing. It appears to me right that
either house have the 'right to call
the attention of the governor to it;
and call upon him to adjourn the
house. It seems to me of some 'con-
sequence.
Mr. HASCALL. This power is
broad enough, and the gentleman's
proposition will make it worse. I
shall oppose it.
The amendment was lost.
The ninth section was adopted.
The secretary read the next section
as follows:
Sec. 10. The governor shall nomi-
nate and by and v/ith the advice and
consent of the senate, (a majority of
all the senators elected concurring,
by yeas and nays) appoint all offi-
cers whose ofiices are established by
this constitution, or which may be
created by law, and whose appoint-
ment or election is not otherwise pro-
vided for; and no such officer shall
be appointed or elected by the legis-
lature.
The tenth section was adopted.
The secretary read the next section
as follows:
Sec. 11. In case of a vacancy, dur-
ing the recess of the senate, in any
office which is not elective, the gov-
ernor shall make a temporary ap-
pointment until the next meeting of
the senate, when he shall nominate
some person to fill such office; and
any person so nominated who is con-
firmed by the senate (a majority of
all the senators elected concurring,
by yeas and nays) shall hold his of-
fice during the remainder of the
ti^rni. and until his successor shall be
appointed and qualified. No person,
after being rejected by the senate.
shall be again nominated for the
same office at the same session, un-
less at the request of the senate, or
be appointed to the same office dur-
ing the recess of the legislature.
The eleventh section was adopted.
The secretary read the next section
as follows:
Sec. 12. The governor shall have
power to remove any ofilcer whom he
may appoint, in case of incompe-
tency, neglect of dutyi, or malfeasance
in office; and he may declare his of-
fice vacant, and fill the same as here-
in provided in other cases of vacancy.
The twelfth section was adopted.
The secretary read the next section
as follows:
Sec. 13. The governor shall have
the power to guant reprieves, commu-
tations and pardons after conviction,
for all offences except treason and im-
peachment, upon such conditions and
with restrictions and limitations, as
he may think proper, subject to such
regulations as may be provided by
law. relative to the manner of ap-
plying for pardons. Upon conviction
for treason, he shall have power to
suspend the execution of the sen-
tence, until the case shall be report-
ed to the legislature at its next
meeting, when the legislature may
either pardon or commute the sen-
tence, direct the execution of the
sentence, or grant a further reprieve.
He shall annually communicate to
the legislature each case of reprieve,
commutation or pardon granted, stat-
ing the name of the convict, the
crime of which he was convicted, the
sentence and its date, and the date
of the reprieve, commutation or par-
don. In cases of conviction, upon
impeachment, the legislature may re-
mit so much of the sentence as shall
disqualify the convicted person from
holding office.
ed.
The thirteenth section was adopt-
GO VERNOR—LIEUT.-GO PERNOR
151
Friday]
July 28
The secretary read the next section
as follows:
Sec. 14. The governor shall be
the commander-in-chief of the mili-
tary and naval forces of the state
(except when they shall be called in-
to the service of the United States)
and may call out the same to execute
the laws, suppress insurrection, and
repel invasion.
The fourteenth section was adopt-
ed.
The secretary read the next section
as follows:
Sec. 15. The executive ofTicers
named in this article, and the judges
of the supreme and district
courts shall be liable to impeachment
for any misdemeanor in office.
The fifteenth section was adopted.
The secretary read the next section
as follows:
Sec. 16. Every bill passed by the
general assembly shall, before it be-
comes a law, be presented to the gov-
ernor. If he appi'ove, he shall sign
it, and thereupon it shall become a
law; but if he do not approve, he
shall return it, with his objections,
to the house in which it shall have
originated, which house shall enter
the objections at large upon its jour-
nal, and proceed to re-consider the
bill. If, then, two-thirds of the mem-
bers elected agree to pass the same,
it shall be sent, together with the
objections, to the other house, by
which it shall likewise be re-consid-
ered: and if approved by two-thirds
of the members elected to that house,
it shall become a law notwithstand-
ing the objections of the governor.
But in all such cases, the vote of each
house shall be determined by yeas
and nays, to be entered on the jour-
nal. Any bill which shall not be re-
turned by the governor within five
days (Sunday excepted) after it shall
have been presented to him, shall be-
come a law in like manner as if he
had signed it, unless the legislature
shall by their adjournment, prevent
its return; in which case it shall be
filed, with objections, in the office of
the secretary of state, within five
days after such adjournment, or be-
come a law.
Section sixteen was adopted.
The secretary read the next section
as follows:
Sec. 17. In case of the deathv
conviction or impeachment to the
senate and notice thereof to the ac-
cused, failure to qualify, resignation,
absence from the state, or other dis-
ability of the governor, the powers,
duties and emoluments of the office
for the residue of the term, or until
the disability shall be removed, shall
devolve upon the lieutenant-gover-
nor.
Section seventeen was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 18. The lieutenant-governor
shall be president of the senate, and
shall vote only when the senate is
equally divided. The senate shall
choose a president pro tempore, to
preside in case of the absence or im-
peachment of the lieutenant gover-
nor, or when he shall hold the office
of governor.
Section eighteen was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 19. If there be no lieuten-
ant-governor, or if the lieutenant-
governor, shall for any of the caus-
es specified in Sec. 17 of this article,
become incapable of performing
the duties of the office the presi-
dent of the senate shall act
as governor until the vacancy is
filled, or the disability removed; and
if the president of the senate, for any
of the above named causes, shall be-
come incapable of performing the du-
ties of governor, the same shall de-
volve upon the speaker of the house
of representatives.
I
152
DUTIES OF STATE OFFICERS
Friday]
WOOL WORTH— KIRKPATRICK
[July 28
Section nineteen was adopted.
Mr. WOOLWORTH. Mr. Presi-
dent. In pursuance of the report of
the special committee, which was
adopted this morning, I move to in-
sert a section at this point to be num-
ber 20.
The secretary read the section, as
follows:
Sec. 20. The commissioner of pub-
lic lands and buildings, the secretary
of state, treasurer and the attorney
general, shall form a board which
shall have general supervision and
control of all the buildings, grounds,
and lands of the state; the states
prison, asylum and all other institu-
tions thereof, except those for educa-
tional purposes, and shall perform
such duties and be subject to such
rules and regulations as may be pre-
scribed by law.
Mr. KIRKPATRICK. Mr. Presi-
dent. I would like to ask if there
is no provision for pay for these of-
ficers? If not, I think it would be
well to insert it.
Mr. WOOLWORTH. Nol, sir, it is
not necessary to do so. The salaries
of the state officers are provided in
the constitution.
The PRESIDENT. The question is
upon the adoption of the proposition
of the gentleman from Douglas (Mr.
Wool worth.)
The section was adopted.
The secretary read the next section
as follows:
Sec. 21. If the office of auditor
of public accounts, treasurer, secre-
tary of state, attorney general or
superintendent of public instruction
shnll be vacated by death, resignation
or otherwise, it shall be the duty of
the governor to fill the same by ap-
pointment, and the appointee shall
hold his office until his successor shall
be elected and qualified in such man-
ner as may be prescribed by law.
An account shall be kept by the of-
ficers of the executive department,
and of all the public institutions of
the state, of all moneys received or
disbursed by them, severally, from
all sources, and for every service per-
formed, and a semi-annual report
thereof be made to the governor, un-
der oath; and any officer who makes
a false report shall be guilty of per-
jury, and punished accordingly.
Mr. WOOLWORTH. Mr. Presi-
,dent. I move to amend by inserting,
after the words "attorney general,"
the words "commissioner of public
buildings."
The amendment was agreed to.
The PRESIDENT. The question
is upon the adoption of the section
as amended.
Section twenty-one was adopted.
The secretary read the next section
as follows:
Sec. 2 2. The officers of the exe-
cutive department, and of all the pub-
lic institutions of the state, shall at
least 10 days preceding each regular
session of the legislature, severally
report to the governor, who shall
transmit such reports to the legisla-
ture, together with the reports of the
judges of the supreme court of de-
fects in the constitution and laws;
and the governor or either house of
the legislature may at any time re-
quire information, in writing, under
oath, from the officers of the execu-
tive department, and all officers and
managers of state institutions, upon
any subject relating to the condition,
management and expenses of their
respective offices.
The twenty-second section was
adopted.
The secretary read the next section
as follows:
SALARIES OF STATE OFFICERS
153
Friday^
WEAVER-HASCALL
[July 28
Sec. 2 3. There shall be a seal of
state, which shall be called the
"Great seal of the state of Nebras-
ka," which shall be kept by the sec-
retary of state, and used by him,
ofRcially, as directed by law.
Section twenty-three was adopted.
The secretary read the next section
-as follows:
Sec. 24. The officers named in this
section shall receive for their services
a salary, and they shall not, after
the expiration of the terms of those
in office at the adoption of this con-
stitution, receive to their own use
any fees, costs, perquisites of office
or other compensation. And all fees
that may hereafter be payable by
law for any service performed by any
officer provided for in this article of
the constitution, shall be paid in ad-
vance into the state treasury.
The salary of the governor shall be
$4,000. The salary of the secretary
of state, of the auditor of public ac-
counts and of superintendent of pub-
lic instruction shall each be $2,000.
The salary of treasurer and at-
torney general shall each be $2,500.
The lieutenant-governor shall receive
twice the compensation of a senator
Provided, that at the expiration of
five years from the adoption of the
constitution and every five years
thereafter, the legislature may, by
general law, re-adjust the said sala-
ries, but the salaries of the officers
named in this section shall not be in-
creased or diminished during their
official terms.
Mr. WEAVER. Mr. President. I
move to strike out the words "4,000"
and insert "3,000."
Mr. HASCALL. I move to strike
out "4,000" and insert "3,500."
The PRESIDENT. The question
is upon the motion to strike out
"4,000" and insert "3,500."
The PRESIDENT. The question
is upon the motion to strike out
"4,000."
The ayes and nays being demanded
the secretary proceeded to call the
roll.
The President announced the re-
sult — ayes, 36; nays, 13 — as fol-
lows:
Ballard,
Campbell,
Curtis,
Eaton.
Gibbs,
Gray,
Griggs,
Hascall.
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Maxwell,
Moore,
AYES.
Myers,
Neligh,
Newsom,
Parchin,
Philpott,
Price,
Reynolds.
Robinson,
Shaffi,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Wakeley,
Weaver, — 36.
NAYS.
Manderson,
Scofleld.
Vifquain,
Wilson.
Woolworth,
Mr. President — 13.
Abbott,
Boyd,
Cassell,
Estabrook,
Granger,
Hinman,
Mason,
ABSENT AND NOT VOTING.
Grenell. Speice.
Parker,
'So the motion to strike out was
agreed to.
Adjournment.
Mr. WILSON. Mr. President. I
move to adjourn now.
Mr. HASCALL. Mr. President,
call for a division of the question.
I The convention , divided and the
' motion to adjourn was not agreed to.
154
SALARY OF (40VERNOR
Friday]
PHILPO TT-KILBURN
[July 28
Salaries.
Mr. PHILPOTT. Mr. President. I
move to amend by striking out
"$3,500" and inserting "$3,000."
The PRESIDENT. The question
will be on the largest sum first.
Gentlemen, the question is on insert-
ing $3,500.
The ayes and nays are demanded
— secretary call the roll.
The vote was taken and the result
was announced — ayes, 23; nays, 2 4
— as follows.
AYES.
.A.bbott, Mason,
Ballard, Manderson,
Boyd, Moore,
Curtis, Robinson,
Gibbs,' Scofield,
Granger, Thummel,
Grigg's, ' Tisdel,
Hascall, Towle,
Hinman, Vifquain,
MoCann, Wilson,
Majors, Woolworth, — 23,
NAYS.
Neligh,
Campbell,
Cassell ,
Eaton.
Estabrook,
Gray,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Lyon,
Maxwell,
Myers,
Parchin,
Philpott,
Price,
Reynolds,
Shaff,
Sprague,
Stevenson,
Stewart,
Thomas,
Wakeley,
Weaver,- — 24.
ABSENT AND NOT VOTING.
Grenell,
Newsom,
Parker,
Speice,
Mr. President. — 5.
So the amendment was not agreed
to.
The PRESIDENT,
on inserting $3,000.
The ayes and nays are demanded'
— secretary, call the roll.
The vote was taken and the result
was announced — ayes, 24; nays, 23
— as follows:
AYES.
The question is
Ballard,
Curtis,
Gibbs,
Griggs,
Hascall,
Lake,
Lyon,
Majors,
MoorG*
Myers
Parchin,
Philpott,
Abbott,
Boyd,
Campbell,
Cassell,
Eaton.
Estabrook,
Granger,
Gray,
Hinman,
Kenaston,
Kirkpatrick,
Ley,
Mr
Reynolds,
Robinson,
Shaft,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Wakeley,
Weaver,
, President,-
-24.
NAYS.
McCann,
Mason,
Manderson,
Maxwell,
Neligh,
Price,
Scofield,
Towle,
Vifquain,
Wilson,
Woolworth^ — 23.
AND NOT VOTING.
Parker,
Speice, — 5.
ABSENT
Grenell.
Kilburn,
Newsom,
Mr. KILBURN. Mr. President
desire to vote on this question.
The PRESIDENT,
the room?
Were you in-.
Mr. KILBURN. No, sir.
The PRESIDENT. You cannot
vote unless by unanimous consent.
(I object.)
Adjournment Again.
Mr. LEY. I move we adjourn.
SALARIES OF STATE OFFICERS
155
Friday]
BOYD— MAJORS— McC ANN
[Juiy 28
The motion was agreed to. So the
convention (at twelve o'clock and
thirty-five minutes) adjourned.
Afternoon Session.
The convention met at two o'clock
and was called to order by the presi-
dent.
The PRESIDENT. The question
occurs, gentlemen, upon the adoption
of section twenty four.
Mr. BOYD. Mr. President. I
have an amendment I wish to offer,
in reference to fixing the salary of
the commissioner of public lands and
buildings. Insert after the word
"senator," in the tenth line, as fol-
lows: "The salary of the commis-
sioner of public lands and buildings
shall be $2,500."
Mr. ROBINSON. I would suggest
it would be well to insert that along
with the auditor, treasurer, and at-
torney general, so as to avoid repe-
tition.
Mr. BOYD. I accept the amend-
ment.
Mr. MAXWELL. I wish to make
a motion before we pass further — to
strike out "$3,000" and insert
"$2,500" for the salary of governor.
The PRESIDENT. I am clearly of
opinion that the proper way to
do that would be to reconsider.
Mr. ROBINSON. There is a mo-
tion pending before the house.
Mr. MAJORS. I move to amend
the motion and say that "the salaries
of the secretary of state, auditor
and superintendent of public instruc-
tion, shall each be $2,500."
Mr. McCANN. How are those of
us who are in favor of low salaries to
get at that? This convention, I take
it, sir, has unmistakably expressed
an opinion today in favor of low
salaries. They have, as plainly as can
be expressed, said that the salary of
governor of the state of Nebraska,
shall be $3,000, and, from the na-
ture of the motion made by the gen-
tleman from Cass, a few moments
since, I take it there is a disposition
to reduce the governor's salary. Now,
would it not be well, Mr. Chairman,
for the purpose of saving time, ta
reduce all these salaries in a batch?
If the salary of the secretary of state,
auditor and treasurer be $2',500, the
governor's salary should be more
than that; and I hope the amend-
ment of my friend from Nemaha
(Mr. Majors) will not prevail. I
propose, at the proper time, to make
a motion to reduce all these salaries
to a sum far less than recommend-
ed in the section.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Nemaha (Mr. Majors.)
The yeas and nays were demanded.
Mr. BOYD. Mr. President. Before
the vote is taken I wish to say that
my amendment does not change the
salary of any officer. It only pro-
vides for a salary for the commission-
er of public lands. Mr. Majors'^
amendment proposes to increase the
salary of the secretary of state, au-
ditor, and superintendent of public
instruction.
Mr. MAJORS. My object, Mr.
President, is to make the salaries of
the secretary of state, auditor, and
superintendent of public instruction
equal where there is no more labor
156
SALARIES OF STATE OFFICERS
Friday]
MAXWELL— MAJORS
[July 28
attached. I believe in paying a uni-
form price for the same amount of
labor. I hope gentlemen will look
upon this question from a business
point of view, and give it that con-
sideration it merits at their hands.
Mr. MAXWELL. I trust we will
■make some distinction. The attorney
general is not prevented from prac-
ticing in the courts, and the position
of attorney general is often a good
recommendation to the man occupy-
ing the position, if he is industrious
■enough to endeavor to work up a
practice. I am in favor of paying
respectable salaries, but I want it
fixed now. The legislatures have a
tendency to give larger salaries.
Now, this, in a new state, where the
people are only just commencing,
many settlers having come in lately
— within the last six months. Half
of the people in this state are living
in temporary habitations, mud
houses, and log huts, and have all
they can do to get along. It is pro-
posed to pay salaries which already
amount to $100,000, for state of-
ficers. In addition to that expense
there is that of the penitentiary, the
insane asylum, and other expenses,
that would swell up to an aggregate
of $160,000, or a little over three
mills on the dollar. Now who could
be prevented from accepting these
positions if we pay rea&oiiabla sala-
ries? I do not think any one will re-
fuse the positions. If money was the
entire object, many of the members
of this convention would not attend
here today. Many of our number
here can earn from $20 to $2 5 per
day. I have never known a legislator
to refuse to serve because of the low
salary given. There is a provision
already adopted providing for the
increase of salaries; and if the peo-
ple see these salaries are too low
they can increase them. If you get
the salaries up too high you cannot
get them down. We are coming to
specie payment fast, and the living
in the next ten years will, in all pro-
bability, be much lower than for the
past ten years.
Now, why should we at this time,
when money is so exceedingly close
that many business men are hard
pressed to meet their engagements
give such high salaries? I am opposed
to the proposition.
Mr. MAJORS. Mr. President. We
fixed the salary of the attorney gene-
ral the other day. I am not seeking
to advance that salary at all, but as
the salary of the treasurer and attor-
ney general is set down here for
$2,500 each. I cannot see why other
officers, whose duties are as much, if
not more, should not receive as much.
I was going to remark, Mr. President
that the gentleman from Cass (Mr.
Maxwell), in his extreme love for
economy and low salaries, has refer-
red to gentlemen on this floor serv-
ing the state as members of this con-
vention, at a much lower remunera-
tion per day, than they could make
at home. I think there is no analogy
between the two cases. We are now
about to establish the salaries of men
who are going to enter upon duties
for the state. It seems to me that
when - we give them salaries we
should give them such as they are
justly entitled to. It is generally
considered that a man has the oppor-
tunity of sitting as a member of
SALARIES OF STATE OFFICERS
157
Friday]
MCCANN— MAJORS— C A SSRLL
[July 38
a constitutional convention, perhaps
only once in a life time, and the hon-
ors conferred are to be taken into
consideration, somewhat; but we are
now fixing the salaries of men who
are to support their families upon
their pay. I desire that they should
have a competence to live upon, and
if it requires $2,500 a year to support
himself and family here, I don't
think we should require our officers
to come here and work for less. I
think that $2,500 is not too high.
Mr. McCANN. Mr. President, i
would like to ask the gentleman from
Nemaha, (Mr. Majors), for whose
opinion I have great respect, one
question.
Mr. MAJORS. Go on, sir.
Mr. McCANN. I believe the gen-
tleman (Mr. Majors) voted this
corning to reduce the salary of the
governor to $3,000, did you not?
Mr. MAJORS. I voted to strike
out $4,000. Then I voted for $3,500,
then for $3000. I voted for the high-
est figure each time.
Mr. McCANN. My question is this.
If the governor is required to move
his family here; support the position
of governor; entertain not only his
friends, but the friends of the state
also, and can live upon $3,000, can-
not the other state officers, of whom
these things are not expected — who
have none of the public duties which
we require of our governor — live up-
on less than $3,000? I think that
should be taken into consideration.
Mr. CASSELL. Mr. President.
While I agree with the gentleman
from Nemaha (Mr. Majors) that it
requires more to live upon here, than
in any other place, perhaps, in the
state, still I say that the position
which the officer holds should be
taken into consideration. It is re-
quired that the governor should
spend $3,000 or $4,000 per year in
order to accommodate those who
come here as guests of the state, hut
I do not think it is necessary that the
other officers should have such a
salary. Now the superintendent of
public instruction is, or should be, a
professional teacher, and this should
be taken into consideration when
you fix his salary. I don't think
there is a teacher in this state who
receives over $1,200 or $1,500 to-
day, and if he comes here at a salary
of $2,000 he does much better than
he is now doing. It is generally con-
sidered, I think, that the duties of
the position, are not so hard as those
i t)f a teacher in some public institu-
tion. While I have been in favor of
as high salaries, or perhaps higher
than any other gentleman upon this
floor, I may say I am not in favor of
a high salary here. I doubt if
there are half a dozen attorneys on
this floor whose net proceeds are
more than$2000 per year, and the
leading lawyers of the state are here.
I think there are few lawyers whose
net proceeds amount to More than
$2000 or $2500 per annum. Now if
this be the case, taking into consid-
eration the fact that the governor's
salary has been reduced so low, I
think that we should not pay these
ofPicers so much. I am decidedly op-
posed to paying these officers $2,500
each.
Mr. ROBINSON. Mr. President.
Like the gentleman from Nemaha
158
SALARIES OF STATE OFFICERS
Friday ]
ROBINSON-KIRKPATRICK
[July 28
(Mr. Majors) I voted to strike out
the "$4,000" and voted for "$3,500"
and when I found we could not get
that, I voted for "$3,000." Now I
think that $3,000 under the present
circumstances, is a very good salary,
it is a fair salary, at least. In the
committee, these salaries were voted
in rotation. Some of the members of
the committee fixed the salaries of
the state officers generally, at $2,000,
hut when they came to the treasurer,
thought we ought to fix his salary at
32,500, although there was no very
good reason given for this discrep-
ancy. I think that $2,500 for these
officers and $3,000 for the governor
is a very fair figure.
Mr. KIRKPATRICK. Mr. Presi-
dent. The gentleman from Lancas-
ter (Mr.. Robinson) said there was
no very good reason given by the
committee why there was a discrep-
ancy between the salary of the treas-
urer, and that of the other officers.
I believe, sir, that the auditoi-
should receive the same pay as the
treasurer, and therefore, I think that
the treasurer ought not to receive a
larger compensation than the audi-
tor, but, sir, I am opposed to increas-
ing the salary of any of these officers
but in favor of reducing them down
to $2,000. I do think, sir, there
ought to be a distinction made be-
tween the office requiring mere cleri-
cal work from that of the executive,
or judicial.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Nemaha (Mr. Majors).
The ayes and nays are demanded
— secretary call the roll.
The vote was taken and the result
announced — ayes, 11, nays, 35 — as
follows.
AYES.
Manderson,
Moore,
Robinson,
Tisdel.
Towle, — 11.
NAYS.
Neligh.
Parchin,
Philpott,
Price,
Reynolds,
Scofield,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Vifquain,
Wakeley,
Weaver,
Vv^ilson,
Wool worth, -
Campbell,
Eaton,
Estabrook,
Granger,
Lake,
Majors,
Abbott.
Ballard,
Boyd,
Cassell,
Curtis,
Gibbs,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Ley,
Lyon,
McCann,
Maxwell, Woolworth,^ — 35.
Myers,
ABSENT AND NOT VOTING.
Grenell. Parker,
Mason, Speicej
Newsom, Mr. President, — 6.
Mr. PHILPOTT. Mr. President. I
have an amendment I wish to offer
now.
The secretary read the amendment
as follows:
The salaries of the secretary of
state, of the auditor of public ac-
counts, of superintendent of public
instruction, of treasurer, commis-
sioner of lands and public buildings
and attorney general shall be $2,000.
The lieutenant-governor shall receive
twice the compensation of a senator.
Mr. PHILPOTT. Mr. President. My
object is to reduce some of the sala-
ries. I have a great desire for my
OATH OF OFFICE
159
J'ridaj-]
STEVENSON— PHIL POTT
[July 28
part that this constitution should be
carried by the people, and inasmuch
as we are about to provide that these
salaries may be raised by the legisla-
ture, I do think we should fix the
amount to pay.
Mr. STEVENSOX. Mr. President.
I have been in favor of the salaries
just as the committee reported them,
and I am now in favor of them. 1
am not in favor of reducing the sal-
ary of the attorney general below
what the committee reported it, $2,-
000.
Mr. PHILPOTT. I will amend,
with the consent of the convention,
so as to make the salary of the at-
torney general at $2,000.
Mr. BOYD. Mr. President. I move
the previous question.
The PRESIDENT. Ten gentleman
up — Gentlemen, the question is
shall the main question be now put?
The motion was agreed to.
The PRESIDENT. The question is
on the amendment offered by the gen-
tleman from Lancaster (Mr. Phil-
pott.).
The ayes and nays are demanded
-^secretary call the roll.
The vote was taken and the result
was announced, ayes, 35; nays, 11 —
as follows:
AYES.
Kilburn,
Boyd,
Cassell,
Curtis,
Eaton.
Estabrook,
Ciiblis.
Cirigss,
Hascail,
Hiumai!,
ivenasLon,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Maxwell,
Moore,
Myers,
Thomas,
Tisdel
Towle,
Wakeley,
Weaver,
Wilson,
Woohvorth — 35
NAYS.
Robinson,
Scofield,
Stewart,
Thummel,
Vifquain, — 11.
Neligh,
Parchin,
Philpott,
Price,
Revnolds,
Shaff,
Sprague.
Stevenson,
Abbott,
Ballard,
Campbell.
Granger,
Gray,
Manderson,
ABSENT AND NOT VOTING.
Grenell, Parker,
Mason, Speice,
Newsom, Mr. President. — G.
So the amendment was agreed to.
Mr. BOYD. Mr. President. I
withdraw my amendment.
Mr. MAXWELL. Mr. President. I
move the adoption of the section as
amended.
The motion was agreed to.
The President read the next sec-
tion, as follows:
Definition and Oath of Office.
Sec. 25. An office is a public po-
sition created by the constitution or
law. continuing during the pleasure
of the appointing power, or for a
fixed time, with a successor elected
or appointed. An employment is an
agency, for a temporary purpose,
which ceases when that purpose is
accomplished.
Section twenty-five was adopted.
The president read the next sec-
tion as follows:
Sec. 2G. All civil officers except
members of the legislature and such
inferior officers as may be by law
exempted shall before they enter on
the duties of their respective offices
take and subscribe the following oath
or affirmation.
IGO
OFFICIAL OATH AND BOND
Friday]
GRIGGS -ROBINSON
[July 28
I do solemnly swear (or affirm as
the case may be) that I will support
the constitution of the United States
and I he stp.te of Nebraska, and that
I will faithfully and impartially dis-
charge the duties of the office of —
according to the best of my
ability and th:\t I have not directly
or indirectly paid or contributed
anything or made any promise in
the nature of a bribe to directly or
indirectly influence any vote at the
election at which I was chosen to fill
said office and have not accepted nor
will I accept nor receive directly or
indirectly any money or other valu-
able thing from any corporation or
person for any official act.
Any officer refusing to take the
oath herein proscribed shall forfeit
his office and after conviction of hav-
ing sworn falsely to or violating his
oath shall forfeit his said office and
shall be disqualified from holding
any office of trust or profit in the
state.
No other oath, declaration or test
shall be required as a qualification.
Mr. GRIGGS. Mr. President. I
move to strike out after the word
"ability" in the oath down to the
word "no" in the ninth line of the
section.
The ayes and nays were demand-
ed.
The secretary called the roll and
the president announced the result;
yeas, 12; nays, 32, as follows:
Abbott,
Estabrook,
Gibbs,
Griggs,
Lake,
Myers,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
AYES.
Neligh,
Reynolds,
Stevenson,
Stewart,
'^hummel,
Wakeley, — 12.
NAYS.
Eaton,
Granger,
Gray,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Ley,
Lyon,
McCann,
Majors.
Manderson,
Maxwell,
Moore,
Philpott,
Robinson,
Scofield,
Shaff,
Sprague,
Thomas,
Tisdel,
Towle ,
Vifquain,
Weaver,
Wilson,
Woolworth-
-32.
ABSENT AND NOT VOTING.
Grenell. Parker,
Mason, Price,
Newsom, Speice,
Parchin, Mr. President, — 8.
The PRESIDENT. The ques-
tion is upon the adoption of the sec-
tion.
Section twenty-six was adopted.
The President read the next sec-
tion, as follows:
Bonds.
Sec. 27. The officers mentioned
in this article shall give bond in
double the amount of money which
may come into their hands, with
such provisions as to sureties, and
the approval thereof, and for the in-
crease of the penalty of such bonds',
as may be prescribed by law.
Section twenty-seven was adopted.
Mr. ROBINSON. Mr. President. I
move to amend section one, filling
the blank by inserting "the first
Tuesday in September."
Mr. HASCALL. Mr. President. I
offer an amendment to tte proposi-
tion just offered by the gentleman
from Lancaster. I move to insert
"the Tuesday succeeding the first
Monday in November next."
Mr. ROBINSON. I will accept
that amendment.
Mr. WAKELEY. I have no idea
what the amendment applies to. I
CKEATION OF NEW STATE OFFICES
161
Friday]
VVOOI.WORTH-HINMAN
[July 28
do not see anything i^ the printed
article to whicti it can apply.
The PRESIDENT. It applies to
the day of the year on which the elec-
tion should be held. This merely
fills a blank.
The amendment was agreed to.
Mr. WOOLWORTH. Mr. Presi-
dent. I wish to move an amendment
to the article, section twenty-eight —
"No other state offices shall be cre-
ated." I do not think I will say that
this is necessary. I think when the
first section of the article says that
the executive department of the
state shall consist of certain officers
it excludes altogether the power on
the part of the legislature or any
other department of the government,
to create any other executive offices.
But I present the amendment be-
cause our present constitution con-
tains a similar provision to our first
section, and notwithstanding that a
number of state executive offices
have been created, and to prevent
the mischief under which we have
suffered heretofore, I move that
this section be incorporated into the
article as section twenty-eight, and I
ask the ayes and nays on that mo-
tion.
Mr. ROBINSON. I move to strike
out the word "offices," and insert
"office."
Mr. WOOLWORTH. I accept the
amendment.
Mr. STEWART. I move that the
article be ordered engrossed for a
third reading.
Mr. MAXWELL. Mr. President. I
move the bill be now engrossed for
a third time.
II
The motion was agreed to.
Judiciary Article.
Mr. HINMAN. Mr. President. I
move that we now proceed to the
consideration of the judiciary arti-
cle.
The motion was agreed to.
The secretary read the next sec-
tion, as follows:
Sec. 1. The judicial powers of
this state shall be vested in one su-
preme court, district courts, county
courts, justices of the peace, police
magistrates, and in such other courts
inferior to the district courts as may
be created by law for cities and in-
corporated towns.
The first section was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 2. The supreme court shall
consist of three judges, a majority
of whom shall be necessary fo form a
quorum, or pronounce a decision. It
shall have original jurisdiction in
cases relating to the revenue, man-
damus, quo warranto and habeas cor-
pus, and such appellate jurisdiction
as may be provided by law.
The PRESIDENT. Gentlemen of
the convention, the gentleman from
Otoe (Mr. McCann) will take the
chair for a minute or two.
Mr. ROBINSON. Mr. President. I
move to amend section two.
Mr. WAKELEY. Mr. President. I
wish to offer an amendment to this
section.
1 The secretary read the amendment
fas follows:
"Insert after the word "revenue"
the words "cases in which the state
shall be a party."
Mr. LAKE. Mr. President. I am
opposed to the amendment. The con-
162
JURISDICTION OF SUFREME COURT
Friday]
LAKE-WAKELEY
[July 28
stitution of Wisconsin, which con-
tains a provision that the state may-
be sued, and that the legislature may
provide in what courts it may be
sued, contains a restrictive clause in
its judiciary article, which ours does
not. I will read:
"The supreme court, except incases
otherwise provided in this constitu-
tion, shall have appellate jurisdiction
only, which shall be coextensive with
the state; but in no case removed to
the supreme court, shall a trial by
jury be allowed. The supreme court
shall have a general superintendence
control over all inferior courts; it
shall have power to issue writs of
habeas corpus, mandamus, injunc-
tions quo warranto, certiorari, and
other original and remedial writs,
and to hear and determine the same."
Now this clause, Mr. President, is
quite restrictive in its provisions; but
I take it, the whole constitution must
be taken together and if there is any
section or clause which controls that
case or its signification, it ought to
be .taken into consideration. Then,
again, we find in the same constitu-
tion, the following:
"The legislature shall direct by
law in what manner and in what
courts suits may be brought against
the state."
That gives general authority to
the legislature. Now we have pro-
vided in our article, as it came from
the hands of the committee of the
whole that the legislature shall di-
rect, by law, in what manner suits
shall be brought against the state,
and we have a law conferring that
authority upon the supreme court, as
provided for in this section. It
seems to me it is filling up our article
with useless words. In our section,
we find that the legislature is left
with full authority to determine whai
court shall have full jurisdiction
where the state may be made to ap-
pear. Take this section with the
section which was adopted in com-
mittee of the whole, which saj-s that
the legislature shall provide in what
■courts the state may be sued, and it
is complete.
Mr. WAKELEY. Mr. President. I
agree with my colleague that the
whole constitution must be consid-
ered together, and that we allow the
state legislature to provide that the
state may be sued in the supreme
court, but I hope he does not wish it
to be taken as his opinion as a lawyer
that the legislature will have pow-
er to confer any jurisdiction upon
the stipreme court which is not cov-
ered by some express provision of the
constitution.
Mr. LAKE. I meant to say this to
be my opinion; that, taking the sec-
tion now under consideration, and
the one which came from the commit-
tee of the whole providing that the
legislature may declare in what
cotirts the state may become a party,
it is giving the legislature power to
declare which court shall have juris-
diction in these cases.
Mr. WAKELEY. Mr. President.
With the opinion of my colleague, as
now expressed, I entirely concur; but
I rise to say that in putting this lan-
guage in the constitution, we are but
following the language of the United
States constitution, which reads:
"In all cases, affecting ambassa-
dors, other public ministers, and con-
suls, and those in which a state shall
be a party, the stipreme court shall
have original jtirisdiction."
ELECTION OF SUPREME COURT
163
Friday
ROBINSON- WOOL WORTH-THOMAS
[July 38
It seems to me that there is no
impropriety in inserting the provis-
ion in this section, and that in adopt-
ing here the language of the United
State constitution, we are not load-
ing down our own constitution. If
We mean that the state shall be
sued in the supreme court , it does
no harm to say so here.
Mr. ROBINSON. Mr. President. I
think it is not to be disputed that
unless we confer upon the supreme
court originally the jurisdiction in
these cases it does not have it. Now
the only question is whether in the
provision of the legislative article we
confer upon the legislature the pow-
er to make this: "The legislature
may say in what courts these cases
'may be brought." Now. sir, I fear
that will be construed with reference
only to the second section.
The PRESIDENT PRO TEM. The
question is on the amendment of the
gentleman from Lancaster (Mr. Rob-
inson) .
The convention divided and the
amendment was agreed to.
The PRESIDENT PRO TEM. The
question is on the adoption of the
section as amended.
The section was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 3. At least two terms of the
supreme court shall be held in each
year, at the seat of government.
The PRESIDENT PRO TEM. The
question Is on the adoption of the
section as read.
The third section was adopted.
The secretary read the next sec-
tion as follows:
Sec. 4. The judges of the supreme
court shall be elected by the electors
of the state at large, and their term
of office shall be for six years, except
at the first election, as hereinafter
provided.
Mr. PHILPOTT. Mr. President. I
have an amendment for that section
to send up.
Mr. WOOLWORTH. Mr. Presi-
dent. While the gentleman is pre-
paring his amendment I would like
to ask the chairman of the judiciary
committee (Mr. Lake) if he thinks
the language of this section is suffi-
ciently full? It reads, "their term
of office shall be six years, except at
the first election, as hereinafter pro-
vided." What does the word "ex-
cept" refer to?
Mr. LAKE. To the term of office.
It is the language used in the Ohio
constitution, I believe.
Mr. THOMAS. I will state Mr.
President, that that portion of the
Bection is not from the Ohio constitu-
tion. The intention of the commit-
:tee was that those elected at the first
election should not hold their office
for six years.
Mr. MANDERSON. Here it is
Mr. President as in the Ohio consti-
tution.
Sec. 11. The judges of the su-
preme court shall, immediately after
the first election under this constitu-
tion be classified by lot: so that one
shall hold for the term of one year,
one for two years, one for three
years, one for four years, and one for
five years: and at all subsequent elec-
tions the term of each of said judges
shall be for five years.
Mr. PHILPOTT. Mr. President. If
the gentlemen will allow me I have
my amendment prepared. It is to go
164
SUPREME COURT DISTRICTS
Friday]
WOOLWORTH-GRIGGS-TOWLE
[July 28
in as a section of the article as a
substitute for section four which I
move to strike out.
The secretary read the substitute,
as follows:
The legislature shall divide the
state into three districts from which
there shall be elected one member
of the supreme court, except at the
first election thereof when they shall
be elected by the electors of the
state at large; and their terms of of-
fice shall be six years, except at the
first election their terms of office
shall be as hereinafter provided.
The PRESIDENT pro. tem. The
question is on the substitute just
read.
The substitute was not adopted.
Mr. WOOLWORTH. Mr. Presi-
dent. I propose an amendment; be-
tween the words "office" and "shall"
to insert the following words "ex-
cept of those chosen at the first elec-
tion as hereinafter provided," and
to strike out the words "except at the
first election, as hereinafter provid-
ed," so that it will read "the judges
of the supreme court shall be elected
by the electors of the state at large,
and their term of office, except of
those chosen at the first election, as
hereinafter provided; shall be six
years."
The PRESIDENT pro. tem. The
question is on the amendment offer-
ed by the gentleman from Douglas
( Mr. Woolworth ) .
The convention divided and the
amendment was agreed to.
The PRESIDENT pro. tem. The
question is on the adoption of sec-
tion four as amended.
Mr. GRIGGS'. Mr. President. I
move to strike out all in the first
line to the word "and," and insert
the following:
"The state shall be divided into
three grand divisions to be denomi-
nated, southern, central and north-
ern, and one judge of the suprenxe
court shall be elected from each of
said districts"
Point of Order.
Mr. TOWLE. Mr. President. I
rise to a point of order. This is
the same amendment substantially"
offered by the gentleman from Lan-
caster (Mr. Philpott) which has
been voted down by the convention
and is not in order.
Mr. GRIGGS. Mr. President. I
do not believe they are the same.
I will read the proposition offered"
by the gentleman from Lancaster
and then the one offered by me.
"The legislature shall divide the
state into three districts from which
there shall be elected one member
each of the supreme court, except at
the first election thereto, when they
shall be elected by the electors of the
state at large, and their terms of
office shall be six years, except at the
first election their terms of office
shall be as hereinafter provided."
The amendment offered by me
reads. "The state shall be divided
into three grand divisions to be
denominated southern, central and
northern, and one judge of the su-
preme court shall be elected from
each of said districts."
Mr. GRIGGS. Mr. President. The
reason I make this motion at this
time is because I believe that in the
SUPREME COURT DISTRICTS
165
Friday]
MOORE— PHILPOTT
[July 2«
supreme court every part of the
state should be represented. I be-
lieve, if we divide the state into three
grand divisions as is the case in Illi-
nois, that we will have as good
judges as to elect them from the
state at large. I believe it will suit
the people of the state better. I be-
lieve the people of the southern
part of the state are entitled to be
represented in that supreme court.
It is true it is not a political oflBce,
l)ut if these three judges are elected
Irom the state at large there will be
rings formed in such a way that we
will not succeed in getting the best
men we have for those positions, and
I am satisfied that all parts of the
state will be better satisfied. I hope
the motion will prevail. I call for
the ayes and nays that the people
may know who are their friends and
who are not in this matter.
The secretary called the roll and
the President announced the result
yeas, 24; nays, 22, — as follows:
Ballard,
Curtis,
Gibbs,
Griggs,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
McCann,
Moore,
Myers,
Philpott,
Abbott,
Boyd,
Campbell,
Cassell,
Eaton,
Estabrook,
Granger,
YEAS.
Price,
Reynolds,
Robinson,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Tisdel,
Vifquain,
Weaver,
Wilson.-
NAYS.
Gray,
Hascall.
Lake,
Ley,
Lvon,
Majors,
Mason,
24.
Manderson, Thomas,
Neligh, Towle,
Parchin, Wakeley,
Scofield, Woolvvorth. — 22.
ABSENT OR NOT VOTING.
Grenell, Parker,
Maxwell, Speice,
Newsom. Mr. President.
Mr. MOORE. Mr. President. I
move a reconsideration of that vote.
I did not properly understand the
amendment made by the gentleman
from Gage (Mr. Griggs). When I
voted I thought I understood it but
did not, and upon further reflection
I am satisfied that the people of this
state should choose the men to repre-
sent them upon the supreme bench
from any part of the state where they
can find a man suitable for the pur-
pose. This thing of confining it to
sections or sectional lines there can
be no possible reason for. I do not
wish to ascribe any impure motives
to any gentleman present. I do not
believe they have any. I think the
best men of this state should be se-
lected, no matter where they may be
found. The questions that will come
before this supreme court are ques-
tions which affect the whole people
alike. There will not be any local
questions for decision in this court
affecting one part of the state more
than another, therefore I do not
wish any sectional boundaries to be
made. ' I wish us to select our judg-
es wherever we can find the best tal-
ent, and not confine them to sepa-
rate portions of the state and be
forced to take up men that we other-
wise would not choose.
Mr. PHILPOTT. I hope the mo-
tion will prevail for several reasons.
The people believe that while a man
166
SUPREME COURT DISTRICTS
Friday]
HASCALL-MYERS-MASON
[July 28
pretends to be honest and faithful in
the discharge of his duties, notwith-
standing tliat he may be influenced
by local consideration, by reason of
living in a certain section he may
be induced to act in the interest of
that section more than any other. A
human heart being pretty full, and
any man is liable to do this. The
executive, legislative and judicial
department. I want the judicial de-
partment to be so arranged that it
may be selected from different parts
of the state, not that all the judges
and governors should be elected
from one part of the state. I think
we should have fair and impartial
decisions, and if the judges were all
selected from one section influences
might be brought to bear on them
which would prevent a fair discharge
of their duties; and for that reason
I am in favor of the amendment.
Mr. HASCALL. We do not want
a local judge. We want a judge for
the whole state, and the judges
should be elected from different lo-
calities. The whole state is interest-
ed and ought to have a voice
Mr. MYERS. I rise to a point of
order. The motion pending is to re-
consider, and does the chair consider
that a debatable question?
The PRESIDENT (pro tern.) A
motion to re-consider is not debat-
able.
Mr. MASON. I trust the gentle-
man will have leave to proceed, or
sir, I do not believe
Mr. MYERS. I rise to a point of
order, with all due deference to the
honorable gentleman.
Mr. MASON. I want to see your
authority.
Mr. MYERS. It is in the rules.
Mr. MASON. Then I move that
the gentleman have permission to
proceed. I hate to see the provision
marred by such a monstrous thing
that the chief justice shall be compel-
led to live in the district from which
he is elected.' It is degrading to the
interests of the state to presume that
these sectional influences are to
permeate the minds of those who are
called upon to settle the great ques-
tions of property and right. Why,
sir, if the Marchalls of this state live
in Douglas county, I would take
them away from there, and the day
is not far distant, doubtless, when
they will be congregated around the
library at the Capitol, and is a state
to be deprived of their learning and
influence because they live at the
captial, or is the day coming when
we can forget, for a single moment,
the little county in which we live
and take in the whole state, and the
whole interests? It seems to me this
amendment was still born. I do be-
lieve, sir it is a most dangerous in-
novation that has been presented or
proposed to this judiciary article.
Consider, sir, for a single moment,
the object of this amendment to this
court of dernier resort. It is not
for local parties, or to represent any
certain interest, not as a representa-
tive body in anything, but as a mere
oracle of the law, to interpret that
which is made. Why, how unseemly
it is to compare this tribunal, which
represents every interest in the law
making department of the govern-
ment; to compare that tribunal
SUPREME COURT DISTRICTS
167
Friday]
MASON— HASC ALL— ROBINSON
[July 28
which alone declares what that is
which has been written, to that tri-
bunal which shall take note of every
local interest and every local commu-
nity in the whole state! There is a
reason for adopting a thing like
this in an old state, but, sir, even the
old states grew sick of this danger-
ous innovation. Look at New York,
with her eight supreme courts of
judicature at one time, and, sir, as
many conflicting decisions in the su-
preme courts as there were tribu-
nals; and it was with great difiicul-
ty that the law was ever settled;
and those eight tribunals all local
in their character. Now, sir, we
have but one supreme court. We lift
it over and above all locality and
prejudice, and all influences that can
intimidate or prejudice or bias; and
it is shut out from view. The idea
of the possibility of locality influ-
encing the decisions of a judge! I
would be false to myself, to my con-
victions of right; false, sir, to the
high duty I owe to this state; false,
sir, to the duty I owe to my children,
were I to stand here and see this
amendment prevail in silence. I
hope no such dangerous innovation
will prevail, and that the amendment
may be defeated.
Mr. HASCALL. Mr. President. I
believe I had the floor, and only took
my seat in obedience to the rule
which says that a member when out
of order must take his seat. The
rules entitled me to the floor.
The PRESIDENT (pro tem.) You
are right.
Mr. HASCALL. This rule would
prohibit judges, after they have
been elected, having a residence at
the capital, and then being eligible
for re-election, because this rule re-
quires them to live in their district
to be eligible and if they come to
live at the capital they would be
ineligible.
Mr. ROBINSON. I do not know
that I am in favor of the section as it
now stands. My own views are that
it should require judges to be elect-
ed by the electors of their several
districts, for I am certainly in favor
of dividing the state into three ju-
dicial districts, and to require the
judges to be brought from each
one of them. We are accused of
making dirty aspersions when we
presume that the supreme court
would consider local interests. But
I say they are guided by them, and
every man is actuated by the preju-
dices imbibed from his sectional dis-
trict. Now, I want to utilize this,
Perhaps the people, in nominating
their judges would in order to make
them available as candidates, bring
them from different portion of the
state. I believe if they are brought
from different portions of the state
they will not be actuated by these
prejudices. I do not believe they
are above their prejudices, even if
they wore the long robe and the
powdered locks of old, and notwith-
standing their dignity.
Mr. WAKELEY. Mr. President. I
can hardly think it is necessary that
any member of the convention should
add anything to the very forcible
considerations which have been pre-
sented by the distinguished gentle-
men from Otoe (Judge Mason.) I
felt some amusement when the vote
upon this proposition was announc-
168
SUPREME OOCTRT DISTRICTS
Friday]
WAKELEY
[July 2»
ed. I had supposed it was offered,
as propositions sometimes are, in or-
der that the mover and some who
believe with him, might have the
pmvilege of recording on the journal
of this body their opinions and sen-
timents in regard to important ques-
tions. But I do not, for a moment
believe that it would be the pro-
nounced sense of this constitutional
convention that the people, left to
their untrammeled judgment, their
unbiased choice in selecting the judg-
es who are to sit in the highest tri-
bunals of this state could not be
trusted to elect men who would go
upon the judgment seat unbiased,
uninfluenced by any consideration of
a local, of a partisan or a personal
nature. And, sir, if you cannot trust
the people of this state to select their
judges anywhere within the limits
of the state for fear they will prosti-
tute their positions to any personal,
partisan purpose, then, sir, for God's
sake strike out this provision in
your judicial article, abolish your
separate supreme court, which we
were sent here to establish and or-
ganize; go back to the system under
which we have lived* where you have
selected judges from three different
districts, and sir, when gentlemen
stand up on this floor and say that
men elected from particular locali-
tes in this state will be influenced
by this consideration, they do but
insult the judiciary of our state,
which for four years have come from
different portions of the state. Can
any gentleman stand up here and
say that our judges have, for one
moment, remembered the particular
section of the state in which he lived.
or in what county his wife and chil-
dren were sheltered, when en-
gaged in his ofl!icial duties? I
say, sir, it is an insult in advance to
all men who may occupy a position
upon that bench. Why, sir, the man
who takes his position upon the
bench, to administer justice and al-
low himself to be influenced by such
considerations and be prejudiced in
his decisions, that man should va-
cate his position and go home. Why,
sir, is this proposition made? You
say that because men live in particu-
lar localities their judgment may
be swayed by favoritism. Suppose
sir, that some question would arise
where the question of North and
South Platte may arise. Suppose the
legislature should say that all north
of the Platte river should consti-
tute one grand division and all south
of the Platte should constitute an-
other division. Would they not have
it in their power to prevent the peo-
ple selecting more than one judge
from that side of the river. But, sir,
the time when that unfortunate di-
vision shall trouble the people of
the state is fast passing away. I see
no reason for the proposition — I see
very great reason for opposing it sir,
when you elect men for long terms
of office, is there anything they can
do which will better fit them to per-
form the duties of their office than to
come here with their families, with
their household goods and settle
among the people residing here; here
where they can go into your state li-
brary, which, in a short time will be
a far better library than any private
library found in the state. Shall you
say that if one judge shall come here
SUPREME COURT DISTRICTS
169
Friday]
PHILPOTT-HASC ALL— GRIGGS
[ Ju'y 2^
to live and the other two do not?
Sir, I do think that when so anoma-
lous a proposition as this is broached,
a man should give some special reas-
on for supporting it. I suppose that
the people of this state are going to-
place upon the supreme bench of the
state, judges who will be honest
men and uninfluenced by local preju-
dices.
Mr. PHILPOTT. Mr President. I
can say this; that whatever I think,
I can say upon this floor, although I
don't wish to cast any reflections of
any kind upon the judges of this
state, yet I do say that judges can
fall; their acts have been impeached.
Judges are but human. It is well
known that, high though our pres-
ent judges may be in character,
learning and ability, they came neai
being impeached by our legislature.
I don't know, sir, whether the gen-
tlemen of our state were right or
wrong. I am decidedly in favor of
bringing the judges together from
different parts of the state, believing
that thereby we will be likely to
have a better administration of jus-
tice, than if they were brought from
the same p 
