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Full text of "Publications of the Nebraska State Historical Society"

Gc ^- Lj 

978.2 

N27p 

V.12 

Ser.2.v.7 

1237392 



C5E:n^ALOGY COl^LECTI 



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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 



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[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 



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[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 



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[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 



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FROFORTIONAL REPRESENTATION 



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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 



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[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 



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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 portion of the state. How 
is it with the officers of the state 
when they come to reside here? Does 
the gentleman understand they have 
left their former place of residence 
to live here temporarily? By leav- 
ing there to come here do not they 
lose their residence? The gentleman 
last upon the floor tells us that there 
has been no prejudice or local feel- 
ing manifested by the present judg- 
es in their official acts. At the same 
time he tells us thai these gentle- 
men constituting our present su- 



preme court have been brought to- 
gether from different portions of the 
state. Yes sir, heretofore we have 
brought them together from differ- 
ent portions of the state — why not 
do the same in the future. I say it is 
not impugining the principles of any 
gentleman who may be elected to the 
supreme court of this state, to say 
that they shall come from different 
portions of the state. 

Mr. HASCALL. Mr. President. I 
only rise in order to make an ex- 
planation. So that when the record 
of this body is made up, we may not 
have the history of our state wrong- 
ly given. It has been said that the 
legislature came near impeaching our 
present supreme court. The legis- 
lature requested the judges to ex- 
press an opinion as to a certain mat- 
ter, and the judges expressed that 
opinion and because that opinion 
did not seem to suit a few individu- 
als, there was some talk about im- ;^ 
peachment, but this talk was con- 
fined to a few -less than half a dczeu 

Mr. GRIGGS. Mr. President. I 
did not presume, when I introduced 
this amendment that it would be 
made a m?.tter of such strong op- 
position from certain quarters. I am 
sorry to bring in a proposition which 
will be ikely to give offense to cer- 
tain gentlemen, for there is no one 
in the state who would be more glad 
to elect certain gentlemen in this 
house, to the supreme bench of the 
state than I. It seems to me they 
have tried to ridicule the proposition 
and defeat it in that way and not 
by argument. In the Illinois consti- 
tution there was enacted the very 
thing I propose to have enacted here. 



170 



SUPREME COURT DISTRICTS 



Fridayl 



GRIGGS— WOOL WORTH 



[July 28 



It was well remarked by the gentle- 
man from Lancaster (Mr. Philpott) 
that one great inducement to keep 
our judicial officers so pure, Is that 
they came from three different parts 
of the state. The only difference be- 
tween that and what I propose is, 
that our present judges come from 
three different portions of the state 
that were called the "three districts" 
instead of three "grand divisions," 
as I propose to call them. But it is 
remarkable to me that this opposi- 
tion coming from certain quarters — 
from those places from which two or 
three gentlemen shall be taken and 
placed upon the supreme bench, 
looks somewhat strange. I don't be- 
lieve that if they are all selected 
from one place the judges will be 
quite as unbiased in their opinions 
as if they are selected from different 
parts of the state. And although the 
honorable gentleman from Douglas 
(Mr. Wakeley) thought it was in- 
tended as a joke, I am sorry to know 
that he was sleeping upon his judici- 
al rights, because it appears that he 
was deeply interested in it. It was 
not intended as a joke, when there 
was twenty-four to twenty-two that 
said they were in favor of it, and I 
do hope they will not go back on 
their votes. It was intended for the 
benefit of my constituents and for 
good to all parts of the state and 
therefore I hope it will remain. 

Mr. WOOLWORTH. Mr. Presi- 
dent. It is not very strange that this 
matter suddenly brought to the at- 
tention of the convention should ex- 
cite great feeling. It is not strange 
at all that those gentlemen who pro- 
posed it and have aspirations to this 



ofiice should feel perhaps somewhat 
disturbed by the course of these per- 
sons; but sir, it is not strange at all 
that every man who pleads the cause 
of his clients at the bench of this 
state should be agitated at the course- 
this is taking and must take. Now 
sir, I propose to have a plain talk 
about this matter, and unbosom my- 
self a little, and I hope that my col- 
league (Mr. Wakeley) and the gen- 
tleman from Gage (Mr. Griggs) will 
not get alarmed and excited, because- 
I think this is a pretty serious mat- 
ter, but sir, let us look the matter 
in the face. A great many persons 
have said to me since I have been in 
attendance on this convention and 
before I came down here, that they 
thought I would be a very proper- 
man to elect to the bench of the su- 
preme court; well, I have this to 
say, if there should be a compensa- 
tion fixed for that office which I 
think would warrant it, in justice to- 
myself and family, and other circum- 
stances should favor my taking a 
seat in that court; and I should be 
nominated and elected without any" 
effort on my own part, or on the part 
of my personal friends, but if the 
people should freely tender me the 
office and certain other matters 
should concur; I should be proud to- 
go there. Well, sir, before the dis- 
cussion of yesterday, I knew very 
well that the circumstances to which 
I have referred would not occur and 
the idea was dismissed from my 
mind. I said to more than one man 
that I proposed to come here and dis- 
cuss the question of salary just ac- 
cording to my own conscience, and" 
I determined I should go for the- 



SUPEEME COURT DISTRICTS 



171 



Friday] 



WOOLWORTH 



[July 2» 



very highest salary that could be ob- 
tained. Now sir, I do not think the 
first condition of my going into this 
court could ever possibly have oc- 
curred, and that is without any effort 
on my own part or the part of my 
friends, and therefore probably I 
never could have got there, if the 
compensation had been ever so much. 
I would not go there under obliga- 
tions to cliques and parties, or such 
associations of men influenced by 
partizen spirit, such things constrain 
the actions of a judge. I propose to 
enter into matters of detail, and 
name names in the course of these 
remarks, and I have said this much 
to relieve all of any idea that I speak 
for myself. Now, gentlemen, let us 
look at this matter practically. Let 
us see where the dividing lines of 
the state must be, and where the 
gentlemen must come from who are 
to be elected your judges. Suppose 
now, j'ou take a dividing line run- 
ning along the Platte river, and one 
division is north of that line, who 
are the gentlemen who are men- 
tioned and looked to by all the peo- 
ple of this state as the members of 
this court to come from that part of 
the state. Well, sir, the two gen- 
tlemen who now sit on that bench. 
Judge Lake and Judge Crounse, of 
course the eyes of the people are 
directed towards both, for sir, they 
have shown themselves fully compe- 
tent men. There are two, now, let 
us come into Douglas county and 
look around a little further. Refer- 
ence has been made by the gentle- 
man from Gage (Mr. Griggs) to my 
colleague (Mr. Wakeley.) I do not 
know his feelings whether he would 



go into this court or not, but I do 
know if the people of the state are 
permitted to make their choice 
neither trammeled by local lines, or 
party lines, that they are just as 
likely to select him aaany other man 
you can name in the state. I do not 
stop to eulogize his learning and in- 
tegrity. 

Now, sir, there are three men in that 
section, and is it proposed in this con- 
vention to say that not one of these 
three men shall be elected to a seat 
On that bench? Do you propose to 
say, sir, that because they happen 
to live, one in Washington county 
and the others in a neighboring coun- 
ty, they shall not go into this court? 
Is that what you propose to do? Let 
us look a little further in this mat- 
ter. Suppose you make two div isions 
of North Platte; well, sir, I am not 
very well acquainted up in that coun- 
try. There may be men there of 
ability and learning, fit to sit in 
this court, that I never heard of and 
do not know, but I apprehend sir, 
that if you make the dividing lines 
of these three grand divisions where 
the lines now are, why, I apprehend 
that in all the country north and 
west of Douglas county, I say I may 
be mistaken, but I doubt if in what 
is the third judicial district you 
have any man whatever who would 
himself think he was fit to sit in 
that court except Judge Crounse. 
Now you gentlemen who come from 
that region just cast about and see 
where you are going to come out in 
this matter. I say there may be 
gentlemen there fit to sit in this 
court, that I do not know, but sir, I 
do not think the people of this state 



172 



SUPREME COURT DISTRICTS 



Friday] 



WOOLWORTH 



[July 28 



know them. I mean no disrespect 
whatever towards any gentleman of 
the iM'ofession or any of the other 
walks of life, who reside there, but I 
do not believe, I say it with the ut- 
most frankness, that the people of 
this state do ftot know in that dis- 
trict of a single man who ought to go 
into the supreme court except Judge 
Crounse. Now sir, it is true the 
democrats are not supposed to be 
in the majority in this state, but sir, 
I will tell you one thing, that if the 
radical party do not nominate a good 
judicial ticket, if they do not put in 
the field men that command the re- 
spect of this people for that position, 
the democrats will put a ticket in 
the field and more than that they 
will elect it. I say it in all candor, 
just as sure as you sit in these seats 
the next supreme court will be every 
man democratic if you do not nomi- 
nate a good judicial ticket on the 
radical side. I tell you Douglas 
county that polls the largest vote of 
any county in this state, will cast 
politics on one side and vote for the 
best men. Now, sir, I want if we are 
to run a democratic ticket — and I 
hope you radicals will give us a 
chance — I want to run a good demo- 
crat against Judge Crounse. I want 
to find in the democratic party a 
man who, in my opinion, and the 
opinion of the people, will make a 
better judge than Judge Crounse. I 
want you to nominate him, if elected 
he will be a good judge; but I want 
the democrats to nominate a man 
who will be a better judge; and then 
I want the people to elect a demo- 
crat. I do not want you to propor- 
tion the state so that the democrats 



will have no chance. Look a little 
further. Suppose you do district 
the state as it is now districted, what 
can very easily happen? A man 
from Douglas county can go a dozen 
miles, locate himself on the boun- 
dary line of Washington, perhaps 
locate himself at Fremont, then he 
will come from that judicial district, 
after being there six weeks and lo- 
cated. He satisfies your constitu- 
tional provision. You will compel, 
not good men, democrats or republi- 
cans, you will never compel good 
men to do anything like that. A man 
who would resort to such a petty 
trick as that, even to get around 
such a provision as this is, I would 
not characterize as a gentleman. Sir, 
I say you cannot get a good man to 
play a little trick like that in order 
to get around such a provision as 
this. Why? Because a good man 
never will do it; it is a small man; 
it is a man that thinks a great deal 
more of the office than he thinks of 
himself; that thinks rather a great 
deal more of the mere title of the 
office than he does of the office itself. 
Those are the kind of men who will 
play that sort of trick. Why, sir, I 
said a little while ago I was pretty 
well acquainted in that region. I 
know myself of men in my county 
just about equal to that sort of a 
game, and you are going to drive, 
perhaps out of Omaha, some men 
that answer very well in their place, 
but certainly never will answer for a 
seat in the supreme court. Come 
down below the Platte and see where 
you will stand. There are three or 
four gentlemen below the Platte riv- 
er who have been spoken of in con- 



SUPREME COURT DISTRICTS 



175 



Friday] 



WOOLWORTH 



[July 2a 



nection with this office. Either one 
of them would suit me very well. 
I would rather have my friend from 
Nemaha (Mr. Thomas) than almost 
any one else, because, In the first 
place, he is a good lawyer*, and so are 
others; and he is a good man and 
so are others. But he is a democrat. 
Therefore I say frankly I should pre- 
fer him. There are many people 
all over this state, and I can speak 
particularly with regard to the coun- 
ty I come from, looking in the direc- 
tion of Nemaha county for one of the 
judges of the supreme court. And 
there is a gentleman besides who 
now presides in the supreme court. 
A gentleman I undertake to say who 
brings to the discharge of his duty 
more native power, more vigor of 
intellect than any man in this state; 
a man who has devoted to the dis- 
charge of his official duties an 
amount of labor; of thought so very, 
very great; of learning, of ability on 
every hand, in every direction of the 
first character. Now, sir, there is an- 
other gentleman that the people 
look to. I know a gentleman mem- 
ber of the convention from Cass 
county whose name I have heard 
mentioned in this connection — 
Mr. Maxwell. With his professional 
character, ability and learning I 
am not personally acquainted, but I 
know he enjoys the confidence of the 
people of the county and section in 
which he lives, and a large part of 
the people of this state among whom 
he is known. I could go on and 
name more than one, more than two 
gentlemen, two gentlemen living be- 
iow the Platte river, and out of the 
number vou are to select these 



judges. Now, gentlemen, where do 
these men live? They live in the 
river counties all of them. Now I 
r ean no earthly disrespect to tre 
g-ortleman from Lancaster county. 
I am free to testify to this, that 
tbough I have never attended 1 ut 
one term of the court in this county 
at that time I was perfectly aston- 
ished to see the amount and char- 
acter of the business pending here; 
and in the case I had down here, I 
was perfectly astonished to find that 
a gentleman, or two gentlemen, 
could not only teach me law. but 
could teach the court law, and did 
teach the court law in a case I 
thought tolerably safe and in which 
the court was about to decide for me 
when he interposed with authority 
which induced the judge to change 
his opinion. While I say all this 
for these gentlemen, I do not hesitate 
to say, I do not know of any one of 
them who will satisfy me as a mem- 
ber of the supreme court of this 
state. Perhaps I am mistaken. Per- 
haps there is somebody of more e.x- 
perience, not more ability, because I 
have in my mind's eye at this moment 
a man in Lancaster county, in whose 
future I have the utmost faith, and 
I tell the lawyers who have lived 
here from ten to fifteen years, that 
the day is coming to them, as per- 
haps it has already come to me, 
when they must look out for their 
laurels. I set out in this discussion 
by saying 1 should talk upon this 
discussion perfectly plain and call 
names. I could go on and mention 
other names, but I have done enough 
to answer my purpose. I have 
shown .vou, sir. that the circuit of 



174 



Sl'PKEME COURT DISTRICTS 



Fridarl 



WOOL WORTH 



[July 28 



country from which the three judges 
who are to sit in this court, is confin- 
ed to the river counties and limited 
principally to a small number of the 
river counties. It will be just as cer- 
tainly so as we go into this judicial 
election. Now I ask you to look at 
this matter practically. Supposing 
the republicans shall succeed in elect- 
ing Judge Lake, and the democrats 
shall succeed in electing Judge 
Wakeley from my county, do you 
propose to say one or the other of 
these gentlemen shall be determined 
ineligible? Do you propose to say 
that? That is what you will say in 
effect, or else you will say what I 
think will be a crying injustice to 
the people of the state, you will say 
to them they shall not take the men 
of their choice for this highest seat 
in the new state government. And 
so it will be all along down the river 
and on every hand. Now. sir, I 
hope I have not turned myself into a 
nominating convention because I 
expect the minority principle to ob- 
tain — -at any rate so far as the court 
is concerned, — and I sup.jose there 
will probably be but three candidates, 
and I have taken pains to mention 
just about enough gentlemen for you 
to see what situation we will be in 
if we pass this amendment. Now, 
gentlemen. I have taken up your 
time a great deal longer than I in- 
tended to. I have taken it up when 
I determined this morning not to oc- 
cupy your time at all unless it should 
become my imperative duty. I say 
T have taken it up a great deal long- 
er and wearied your patience, but 
I beg you, by every possible consider- 
ation, to think well before you say 



in effect, the people of this state will 
not select the best men, come from 
what part of the state they may, for 
this office of judge. Remember that 
what you do here is to go to the 
people, and there is no subject upon 
which the people are so much agi- 
tated as upon this matter of a new 
supreme court, its constitution and 
election. You have gone down just 
as far as you can afford to go, and 
stand before the people of this 
state, in fixing a brief term of office 
that of itself will have a tendency 
to prevent good men from giving up 
their practice and going into the 
courts; and just as far as you can 
by fixing the salaries. After doing 
all that, you undertake to say the 
people of this state shall not, for this 
brief term, and this small salary, se- 
lect the best men that will take it. 
I tell you, sir, that you write the epi- 
taph of this constitution, and you 
turn this convention into a public 
cemetary, just a sure as you bind 
the hands of the people of this state 
on this matter of a supreme court, 
so as to prevent the election of the 
very best men. I tell you that 
Douglas county will rise as one man 
and vote it down; and Douglas coun- 
ty, I apprehend, is not the only coun- 
ty that will do it. We wanted this 
body to be assembled more for the 
purpose of constituting this court, 
and constituting it properly, and se- 
lecting the right men more than any- 
thing else which called us. 

Now, sir, defeat us, and, the re- 
sult is just as certain as there is a 
God in heaven. Enough on that side. 

I appeal further to this house; I 
appeal to it from the highest mo- 



SUPKEME COUKT DISTRICTS 



175 



Friday] 



WOOLWORTH 



[July 2S 



tives. The days are coming to an 
end, when I shall come before the 
courts of this state to practice my 
profession, and earn my living. The 
days are coming to an end when 
several of the gentlemen who prac- 
tice at the bar, and show feeling on 
this subject, will appear before the 
courts of this state. But, rising 
above every consideration of myself, 
I enter a protest now and henceforth 
against the use of my name for a 
seat in this court — if anybody should 
be fool enough to mention it in that 
connection, so that I can stand be- 
fore you and plead, in the name of 
justice and of the people; to beg of 
you, in every consideration that can 
actuate good men and wise men in 
framing this constitution. I beg of 
you to retreat from the position you 
have taken; and I put it, sir, upon 
the high ground I placed it on yes- 
terday, when I asked you to make 
this salary sufficient to support good 
men, and right men, in the right 
way, in this office. Remember who 
you need there. You need men who 
are to adjudicate not only the causes 
of your clients, but the causes of 
yourselves. The titles of your own 
homes may come there in contest — 
the dearest interest you have. You. 
and every one of the people, and 
every citizen of this state, may go 
there to be at last adjudicated up- 
on; and who shall say but the life 
of some man who sits here may at 
last, go there; and the issue may be 
life or death, or a worse issue than 
life or death, the issue of guilty or 
not guilty. Think of what is to be 
done in that court. The foundations 
of the jurisprudence of this state are 



to be laid by the gentlemen who are 
to be elected- this fall. They are to 
be laid, sir, for all time to come. Do 
you want them merely pigmies? Do 
you not want for this work, before 
which any man may bow in humility, 
the best men come from what coun- 
ty or section they may? Sir, upon 
these foundations is to be erected 
the great structure of the law, be- 
neath the roof of whose vault are to 
be traced the destinies of the citi- 
zens of this state for all time to 
come. Will you have it built of poor 
material? Will you have it built 
by journeymen? Sir, this is a seri- 
ous question. Because if you look 
at it practically in the way I put it 
to you when I arose — in the forepart 
of my remarks — it utterly excludes 
the best men from sitting in the 
court: and you are driven to the ex- 
tremity of taking men that are not 
the best men, and probably you will 
get men who are not only not the 
best men, but men that are not fit 
to sit there. Now, I beg of you to 
pause. If I have been warm in my 
language, earnest in my appeal it is 
because, as I said before, upon this 
bill turns the character of this con- 
stitutional convention; upon this 
pivot turns the character of the civ- 
il government you are to raise. I 
may be w^arm; I may be earnest, but 
it is because I feel, and I livnow that 
if you persist in this vote, if you 
will do this thing, nothing under 
heaven can save you. 

Mr. LAKE. I do not intend to 
occupy but a very few moments of 
time. In fact, after the ground has 
been so entirely gone over by my 
eloquent and learned colleague, it 



170 



sri'REME COURT DISTRICTS 



Friday) 



LAKE 



[July 28 



would, perhaps, be best for me to 
abstain from saying anything; but 
there arc one or two considerations 
I desire to submit. I shall endeav- 
or not to trench upon the ground he 
has so completely covered.. I de- 
sire to say that it has been announc- 
ed upon this floor that this amend- 
ment was based upon a provision 
found in the constitution of Illinois; 
that the reasons why it ought, per- 
haps, to obtain in Illinois do not, and 
should not influence the action of 
this convention at this time. By 
an examination of the constitution of 
Illinois, Mr. President, it will be 
seen that the judges of the supreme 
court are not elected by the people 
of the state at large. I presume that 
this fact was entirely overlooked by 
the gentleman who introduced this 
amendment. I presume it may not 
have been understood by the gentle- 
men who have voted upon this ques- 
tion. In Illinois it is provided in 
her constitution, that the state shall 
be divided into grand divisions and 
districts, and in each of those dis- 
tricts a supreme judge shall be elect- 
ed by the people thereof. Therefore, 
the difficulty which has been fore- 
shadowed could not come to pass in 
Illinois. It has been abundantly 
shown by the gentleman who has ju?t 
taken his seat, that if one party 
elected a judge, resident in Otoe 
county, for instance, that if another 
political party should succeed in cast- 
ing a greater number of votes for its 
candidates, and its candidate happen- 
ed to live in the same county, that 
but one of these persons receiving 
a majority of the votes of the state 
fihould receive the offlce; and how 



are you to determine which of them 
should hold the office, the republican 
or the democrat? There is the dif- 
ficulty the amendment leaves you to, 
or may bring about. And It maji 
result when the candidates in these 
respective districts are voted for by 
the people of the state at large. If 
you should divide the state into these 
three districts, and provide, in addi- 
tion, that the people of each district 
shall elect one judge, the difficulty 
would not be occasioned, because 
each political party would select one 
candidate and but one could receive 
a majority of all the votes. Supt)ose, 
for instance, you create a district 
south of the Platte which should 
include the counties of Otoe, Nemaha 
and Richardson, and the people of 
the district including these counties, 
do not alone elect the judge, the 
candidates of both parties being vot- 
ed for by the people of the state at 
large; and suppose those two candi- 
dates receive a majority of all the 
votes of the state, what is the result? 
But one of them can be sworn into 
oflBce; and how are you to determine 
which of them, pray? Suppose, for 
instance, that Mr. Thomas, the gen- 
tleman from Nemaha, should be the 
democratic candidate for the su- 
preme bench, and suppose some other 
person, Judge Mason, for instance, 
should be the candidate of the re- 
publican party, nominated in that 
district, and voted for by the peop'Ie 
of the state at large; and suppose 
both those gentlemen receive a larger 
number of votes than are cast for any 
other candidates for the supreme 
bench. Suppose that these two gen- 
tlemen receive a larger number of 



SUPREME COURT DISTRICTS 



177 



Friday] 



LAKE 



[July 28 



votes than any other two candidates 
in the state. They both reside in one 
district, and under your constitution- 
al provision you have declared that 
but one of them can be elected. 
Don't you see, Mr. President, the dif- 
ficulty you would run into? Why, 
sir, we would have, under this provis- 
ion, at least six candidates for the of- 
fice of judge of the supreme court; 
there will be residing withis each 
district, two candidates who are run- 
ning for the office. Now, suppose 
that it should happen that two of 
them, — one a Republican, and the 
other a democrat, — should receive a 
majority of all the votes cast. 
What is to be done? I call upon the 
gentleman who introduced this pro- 
vision to explain what would be the 
result? How would he determine 
which of the two should be sworn 
into oflBce? 

Mr. President, if the gentleman 
desires this amendment to this sec- 
tion he should also provide that the 
people of each district shall elect one 
judge, and not leave it to the peo- 
ple at large. It must be arranged 
in this way, or the difficulty I have 
suggested will be the result. Why, 
sir, in the election of senators we 
allow the people of the senatorial 
district to select their frienator from 
such portion of the entire district 
as they see fit; they are permitted 
to select him from that county in 
which they can find material which 
best suits them and which they 
think will represent them best, and 
when we provide by our constitution 
that the state of Nebraska shall 
form one grand district for the elec- 
tion of judges of the supreme court, 
12 



we should say also provided that the 
people of the state shall be free to 
select their judiciary from whatever 
portion of the state they choose. It 
has been said that if this provision be 
cari;ied into effect, the judges can 
remove with their ramilies to the 
capital to reside and that that re- 
moval will not destroy their resi- 
dence in the place where they former- 
ly lived. Does the gentleman from 
Lancaster seriously contend that this 
is the law? Does he pretend to say 
that if a judge should remove to this 
place with his family to reside that 
such abandonment of his home in 
the county from whence he came 
would not cause him to lose his resi- 
dence in that county? I think, sir, 
that he would. I may be mistaken, 
but that is my opinion. I take it, 
Mr. President, that when this con- 
vention reflects upon the fact of 
what may possibly result by the 
adoption of this provision, not one 
will be found who will sustain it, 
because it will be found utterly im- 
possible to engraft such a provision 
in the constitution and operate suc- 
cessfully under it. We may as well 
adjourn this convention at once and 
go home, if we propose to engraft 
such a provision upon the constitu- 
tion, unless we also provide that the 
people of the several districts shall 
each elect one judge. But is it seri- 
ously contemplated. Mr. President, to 
leave the question of the election of 
the judges of the supreme court of the 
state of Nebraska to the people of 
districts? I can't think it is. The 
supreme judges should be brought 
from whatever portion of the state 
the people choose to call them, and 



ITS 



SUPREME COURT DISTRICTS 



Friday) 



LAKE-WAKELEY 



[July 28 



whent'vtM- candidates are found in | 
tho field, who have secured their 
nomination throush any wrongful or 
torrupt means they can be rebuked, 
and set aside by the people. I tell 
you, Mr. President, that no constitu- 
tion which deprives the people of 
thus making choice of the officials of 
the highest judicial tribunal in the 
state will satisfy the people. Any 
document which deprives them 
of that right, will be trampled un- 
der foot: it will not be endorsed; it 
would deprive them of one of the 
dearest rights they possess. I have 
had the honor of presiding as one of 
the district judges and also upon the 
supreme bench of this state for the 
last four years, and if I have ever 
thought of the lines which circum- 
scribed the limits of the county in 
which I reside, it was unknown to 
me; if such a thought had entered 
my breast I should have been un- 
worthy the confidence of the people 
who elected me to that high trust, 
and sir, I believe, I can speak for 
the gentleman who is absent (Judge 
Crounse) and if it were neces- 
sary for the gentleman who is 
present (.ludge Mason) that in no 
case decided in the supreme court 
of the state have any such unworthy 
considerations ever been felt or 
thought of. I don't believe that any 
member of the profession to which 
I belong, of sufficient character and 
ability to be entitled to a seat up- 
on the supreme bench, can be found 
who would be influenced by any 
such considerations. No man 

can pursue the study of the law 
without having inculcated within 
him those principles of honor and 



integrity which will prevent his be- 
ing influenced in this way. Allusion 
has been made — I beg pardon for al- 
luding to it, for I generally permit 
such matters to pass unnoticed as 
"the idle wind which I heed not" — 
but I say allusion has been made to 
certain things which occurred last 
winter, in which the supreme court 
and the legislature were connected. 
Sir, if my character is not sufficiently 
well established to stand without 
vindication by myself then let it go 
down. I am willing to leave all such 
questions with the people of the 
state. I know before God that my 
conscience is clear, I am satisfied 
that the people will do me complete 
justice and with that I am content. 
I only wish to say further, Mr. Presi- 
dent, that I trust that this conven- 
tion will not incorporate in the con- 
stitution a section, that shall render 
it impossible to carry its provisions 
into effect. 

Mr. WAKELEY. Mr. President. I 
have not risen to argue this ques- 
tion. I would not have uttered an- 
other word, but for the personal 
reference which the gentleman from 
Gage (Mr. Griggs) had made of me. 
I understood him to say that I 
thought he offered his amendment 
as a joke. I said that I expressed 
my surprise that a majority of the 
convention had endorsed the amend- 
ment. Mr. President, another word. 
The gentleman saw fit to go further 
and to allude to me personally, and 
to ascribe to some supposed aspira- 
tions I might have for a judicial po- 
sition, my remarks and views upon 
this question. It is the first time in 
this convention, so far as I remem- 



WOMAN ^S EIGHTS PARTY 



179 



Friday] 



GRIGGS— HASC ALL— ESTABROOK 



[July 28 



ber, that any gentleman has ascrib- 
■ed to any other gentleman such mo- 
tives. I have only this to say, I will 
leave the gentleman to decide for 
himself whether it is correct and pro- 
per. 

Mr. GRIGGS. Mr. President. I 
am sure if the gentleman only said 
what he says he did, I was mistaken, 
I understood him in the course of his 
remarks to say that I offered the 
section to get myself upon the rec- 
ord and show to my constituents 
where I stood. I understood him 
that he was surprised, not at the ac- 
tion of the convention, but that it 
was introduced. If I have offended 
him I ask his pardon for it. But it 
does seem to me strange why all the 
opposition to my proposition should 
come from one quarter, that the 
three able speeches that have been 
made against it have been made by 
gentleman from one place. I can say, 
so far as my constituents are con- 
cerned, they are in favor of this. 

In reference to one question of the 
gentleman on my right (Mr. Lake) 
he asks what would be done if two 
persons from the same district re- 
ceivea ajiiajority. To that I only have 
to say that only one could be elected 
from the same district. I do believe 
we can divide this state in such a 
manner that it will be entirely satis- 
factory to all parts of the state. I 
am perfectly willing to say that the 
judges of the supreme court shall be 
elected by the people of each district 
I nope it will not be reconsidered. 

Mr. HASCALL. Mr President. 
Allow me a moment. I do not 
rise for argument; but I rise 
to a question of duty. I wish 



to vote for the judges of the supreme 
court this fall, and inasmuch as there 
has been candidates nominated from 
the republican and democratic par- 
ties to this position this afternoon, 
I think there should be one nomi- 
nated from the Woman's Rights par- 
ty, and I take pleasure in putting 
in nomination the gallant, youthful 
and promising gentleman, my 
friend. Experience Estabrook, from 
Omaha, Douglas county, Nebraska. I 
will say that it is not proper to pass 
an eulogy upon a man until he is 
dead; but I will take it that he is 
not dead, but sleepeth, and pitch in. 
He is eminently qualified for the po- 
sition. He measures 7 5-8 around 
the head — "No. 11" upon the "last" 
— stands six feet in his stockings — • 
weighs 2 00 pounds avoirdupois — has 
hyperian curls; and a form and 
mould, that is the admiration of 
man and the delight of women. 
(Laughter.) 

Mr. ESTABROOK. Mr. President. 
In accepting the nomination of the 
judge I must express the gratitude 
which I feel, but declare that it 
comes entirely unexpected. If I 
am elected to the position I will en- 
deavor to serve you in the best man- 
ner possible. I know that I shall be 
elected, because the entire female 
portion of the community will give 
me their votes, and being the ma- 
jority will elect me (laughter). 

Having passed the joke let us come 
down to the plain consideration of 
this amendment. If there is any 
reason for this I am in favor of it; 
whatever is right, just and proper, 
I will adopt. Is it proper to divide 
the state into judicial districts for 



ISO 



SUPREME COURT DISTRICTS 



Friday] 



W AKELEY -KIRKPATRICK 



[July 28. 



The election of judicial Judges that 
shall preside over the district court, 
beiuuse they have to do with the par- 
ticulnr local concerns of each dis- 
trict? As I said last night, we 
should divide the state into separate 
senatorial districts, because particu- 
lar interests will be given to the 
charge of representatives, interests 
that pertain to the different sections. 
Are there any such considerations 
here. Suppose my friend Mr. Garn- 
ger has a case before Judge Crounse. 
The matter is to be determined be- 
fore him, and before an individual 
elected from the extreme portion of 
Nebraska, we will suppose at Rulo; 
an n other from L'Eau-qui-court. 
Is not he just as much interested in 
the election of the individual from 
Rulo as are the inhabitants of Rulo. 
He has just as much to do with the 
determination of the case; and if 
elected 300 miles from here, it has 
just as much to do with the decision 
of that case as a man at home. If 
that be so and no local interest in- 
volved in it, I ask what propriety is 
there that these persons should be 
elected from particular districts? 
The very idea is repulsive. There 
may be individuals selected from dif- 
ferent portions of the state, inas- 
much as it is not a question of 
representation. I again thank my 
friends for nominating me to the 
position they have. 

Mr. KIRKPATRICK. Mr. Presi- 
dent. My views coincide with those 
of the gentlemen who have express- 
ed themselves so eloquently. I have 
confidence in the integrity of those 
gentlemen likely to be elected su- 
preme judges. I regret to see so 



much sectional feeling. I uad hoped 
that was buried in this state. I have 
to thank the gentleman from Doug- 
las (Mr. Woolworth) for his inter- 
esting e.xhibit of the judicial and le- 
gal talent of Nebraska; I was very 
much interested in it. I look upon- 
the threat of defeating the constitu- 
tion as idle. It is a mistake to sup- 
pose you could defeat the constitu- 
tion by such a section as this. 

The PRESIDENT, (pro tern.) The- 
question is on the motion to reconsid- 
er. 

The ayes and nays were demanded. 

The secretary called the roll and 
the President announced the resul: 
Ayes, 36; nays, 10, as follows: 

AYES, 



Abbott, 


Mason, 


Ballard, 


Manderson^ 


Boyd, 


Maxwell, 


Campbell, 


Moore, 


Cassell. 


Myers, 


Eaton, 


Neligh, 


Estabrook, 


Parchin, 


Gibbs, 


Scofield, 


Granger, 


Shaff, 


Gray, 


Spraguei 


Hascall, 


Stevenson, 


Kenaston, 


Thummel, 


Kilburn, 


Thomas, 


Kirkpatrick, 


Tisdel, 


Lake), 


Towle, 


Ley, 


Wakeley, 


Lyon, 


Wilson, 


Majors, 


Woolworth, — 36^. 




NAYS. 


Curtis, 


Reynolds, 


Griggs, 


Robinson, 


Hinman, 


Stewart, 


Philpott, 


Vifquain, 


Price,, 


Weaver, , — 10. 


ABSENT 


OR NOT VOTING. 


Grenell, 


Parker 


McCann, 


Speice* 


Newsom, 


Mr. President.. 



TERM OF SUPREME COURT 



181 



Friday^ 



ROBINSON— M ANDERSON— HASC ALL 



[July 28 



Ml-. ROBINSON (when his name 
was called) Mr. President. I wish 
to explain my vote. I am favorable 
to the amendment. I think they 
should be chosen by the electors of 
each district. 

Mr. WILSON. Mr. President. I 
move to adjourn until eight o'clock 
this evening. 

The committee divided and the mo- 
tion was not agreed to. 

The PRESIDENT pro tern. The 
question recurs on the amend- 
ment of the gentleman from Gage 
(Mr. Griggs.) 

The amendment was not agreed to. 

Mr. MANDERSON. Mr. Presi- 
dent. I have an amendment to pro- 
pose to this section, rendered neces- 
sary by a change in section four. I 
move to strike out all after the word 
"years" in the third line. 

The motion was agreed to. 

The PRESIDENT. The question 
now recurs on the adoption of sec- 
tion four. 

The fourth section was adopted. 

Mr. KENASTON. I move we ad- 
journ until eight o'clock this even- 
ing. 

The motion was carried and the 
convention! at six o'clock adjourned 
until eight o'clock. 

Evening Session. 

The convention was called to or- 
der at eight o'clock, by the presi- 
dent. 

Mr. HASCALL. Mr. President. I 
move we pass over the order of the 
night and take up the judiciary ar- 
ticle. 



The motion was agreed to. 
The secretary read the 5th 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 terrji 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. 

Mr. MANDERSON. Mr. President. 
I move to strike out all after the 
words "six years." 

The amendment was agreed to. 

Mr. MYERS. Mr. President. I , 
move to strike out "two," "four" and 
"six," and insert "five," "ten" and 
"fifteen." 

The amendment was not agreed to. 

The PRESIDENT. The question 
is upon the adoption of the section. 

The section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 6. The judge of the su- 
preme court having the shortest 
term to serve), not holding his office 
by appointment, or election to fill va- 
cancy, 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. 

Section six was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 7. No person shall be eligi- 
ble to the office of judge of the su- 
preme court unless he shall be at 
least thirty years of age, and a citi- 
zen of the United States; nor unless 
he shall have resided in the state at 



IM' 



SUPREME AND DISTRICT COURTS 



Pri<Uy) 



BOYD-STEVENSON-ESTABROOK 



[July 28- 



least three years next preceding his 
I'lcition. 

The seventh section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 8. The supreme court shall 
appoint a reporter and clerk of said 
court, who shall have their offices 
respectively for the term of three 
vears. subject to removal by the 
court, and whose duties shall be pre- 
scribed by law. 

The eighth section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 9. The district courts shall 
have original jurisdiction in all cases 
of law and equity, and such appellate 
jurisdiction as is or may be provided 
by law. 

The ninth section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 10. The state shall be divid- 
ed into five judicial districts, in each 
of which shall be elected one judge, 
who shall be judge of the district 
court therein, and whose terraof office 
shall be four years, and until other- 
wise provided by law, said districts 
shall be as follows: 

Mr. BOYD. Mr. President. I 
move to amend by striking out 
"five" and inserting "four." 

The PRESIDENT. The question 
Is upon the amendment offered by 
the gentleman from Douglas (Mr. 
Boyd.) 

Mr. BOYD. Mr. President. Since 
the day the convention met, we 
have heard a good deal about econo- 
my. The judges have told us that 
there is not a sufficient amount of 
business to ocupy three judges sev- 
en months in the year. I think those 



who have talked should now im- 
prove the chance they have to use it. 

Mr. STEVENSON. Mr. President. 
I would like to amend by striking 
out the word "five" and inserting 
the word "four," and also adopt the 
original report with respect to dis- 
tricts. 

Mr. ESTABROOK. Mr. Presi- 
dent. I think we are passing over 
the article now, section by section, 
considering the alterations of the 
committee of the whole. 

The PRESIDENT. Yes sir. 

Mr. ESTABROOK. Then I think 
the better way would be to refuse to 
concur to the amendments of the 
committee. If we refuse to agree to 
these five districts, it is the best way. 

Mr. HASCALL. Mr. President. 
We are taking up the report of the 
committee -eection by section and 
passing upon the alterations made. 
We have a rule upon the subject (the 
last rule I believe) which provides 
that the reports shall be made to the 
convention, then the convention goes 
into the committee of the whole, and 
amends the report if they see fit, 
which is then referred back to the 
convention for its concurrence. We 
are now taking up this report, and 
considering it section by section. 

Mr. STEVENSON. Mr. President. 
I withdraw my amendment for the 
present. 

The PRESIDENT. The ques- 
tion is on the amendment to strike 
out "five" and insert "four." The 
ayes and nays are demanded, secre- 
tary call the roll. 

The vote was taken and the re- 
sult was announced — ayes, 17; nays, 
27 — as follows: 



JUDICIAL DISTKICTS 



18S 



Friday] 



HASCALL— MOORE-BOYD 



[July 28 



AYES. 

Stevensonl 

Stewart, 

Thomas, 

Tisdel, 

Vifquain, 

Wakeley, 

Weaver, 

Woolworth, — 17 



NAYS. 



Manderson, 

Maxwell, 

Moore, 

Xeligh, 

Philpott, 

Price, 

Reynolds, 

Scofield 

Shaff, 

Sprague 

Thiimmel, 

Towle, 

Wilson. — 21 



Boyd, 

Campbell, 

Curtis, 

Eaton, 

Estabrook, 

Lake. 

Majors, 

Mason, 

Myers, 

Abbott, 

Ballard, 

Cassell, 

Gibbs. 

Granger. 

Gray, 

Griggs 

Hascall, 

Hinman, 

Kilburn, 

Kirkpatrick, 

Ley. 

Lyon, 

McCann, 

ABSENT OR NOT VOTING. 

Grenell. Parker, 

Kenaston, Robinson, 

Newsom, Speice, 

Parchin, Mr. President. — 8. 
So the amendment was not agreed 
to. 

Mr. HASCALL. Mr. President. I 
move the adoption of the section. 

The PRESIDENT. Gentlemen, the 
question is on the adoption of the 
section. 

Mr. HASCALL. I move the previ- 
ous question. 

The "previous question" being 
seconded. 

The PRESIDENT. Gentlemen, 
the question is shall the main ques- 
tion be now put. 

The question was agreed to. 

The PRESIDENT. The question 
is on the adoption of the section. 



Section ten was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 11. Provision may be made 
by law for the increase of the num- 
ber of the judicial districts whenever 
two-thirds of the members of each 
house of the legislature shall concur 
therein. Such districts shall be 
formed of compact territory, and 
bounded by county lines; and such 
increase shall not vacate the office of 
any judge. 

Mr. MOORE. Mr. President. 1 
move to strike out the word "two- 
thirds" and insert "a majority." 

The motion was not agreed to. 

Mr. BOYD. Mr. President. I 
have an amendment to the section. 
I move to strike out all in the first 
line, including the word "districts" 
and insert the following: 

"The legislature ma y after the 
year 1875, and every five years 
thereafter increase the number of 
justices of the district courts and the 
judicial districts of the same." 

The PRESIDENT. The question 
is on the amendment of the gentle- 
man from Douglas (Mr. Boyd.) The 
ayes and nays are demanded — secre- 
tary call the roll. 

The vote was taken and the result 
was announced — ayes, 29: nays. 15 
as follows: 



AYES. 



Abbott. 

Ballard, 

Boyd, 

Campbell. 

Cassell, 

Eaton, 

Estabrook, 

Granger, 

Gray, 

Kirkpatrick, 

Hinman, 



Lyon, 

McCann, 

Mason, 

Manderson, 

Maxwell. 

Moore, 

Myers, 

Neligh, 

Reynolds, 

Shaff, 

Stevenson, 



1S4 



Pridayl 



SALARIES OF JUDGES 



WAKELEY-LAKE-MAXWELL 



[July 28 



Stewart. 
Thiiiuiuel, 
Thomas. 
Vifquaiu. 



Wakoley, 
Wilson, 
Woolworth, — 29. 



NAYS. 

Curtis. Philpott, 

(;ihl)s. Price, 

CnjjjKs. Scofield, 

Hascall. Sprague, 

Kiiburn. Tisdel, 

hake. Towle, 

I^ey, Weaver, — lo. 

Majors, 

ABSENT OR NOT VOTING. 
Grenell, Parker, 

Kenaston, Robinson, 

Newsom, Speice, 

Parchin. Mr. President. — 8. 

. So the amendment was agreed to. 

The PRESIDENT. The question 
is on the adoption of the Section as 
amended. 

Mr. WAKELEY. Mr. President. I 
think there is a verbal inaccuracy in 
the section, the word "justices" 
should be "judges." 

The PRESIDENT. It will be so 
amended if no objection. So amend- 
ed. The question is on the adoption 
of the substitute. 

The secretary read the next sec- 
tion as follows: 

Sec. 12. .Tudges of the district 
court may hold courts for each other, 
and shall do so when required by 
law. 

Section twelve was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. i:;. The judges of the su- 
preme court shall receive a salary of 
three thousand five hundred dollars, 
and the judges of the district courts 
shall each receive a salary of $3,000 
per annum, payable quarterly, until 
otherwise i)rovided by law, and 
after said salaries shall be fixed by 
law they shall not be increased or 



diminished during the term for which 
said judges shall be respectively 
elected. 

Mr. LAKE. Mr. President. I 
move to strike out the words "five 
hundred" after the words "three 
thousand." 

The ayes and nays were demanded. 

The secretary called the roll and 
the President announced the result, 
ayes, 22; nays, 23; as follows: 

AYES. 

Campbell, Moore, 

Cassell, Myers, 

Curtis. Neligh, 

E^stabrook, Philpott, 

Griggs. Price, 

Kiiburn, Reynolds, 

Kirkpatrick, Shaff, 

Lake, Sprague, 

McCann, Stevenson, 

Majors. Thomas, 

Maxwell, Tisdel. — 22. 

NAYS. 

Abbott, Manderson, 

Ballard, Scofield, 

Boyd. Stewart, 

Eaton, Thummel, 

Gibbs, Towle, 

Granger, Vifquain, 

Gray, Wakeley, 

Hascall, Weaver, 

Hinman, Wilson, 

Ley, Woolworth. 

Lyon, Mr. President. — 2 3. 
Mason, 

ABSENT AND NOT VOTING. 

Grenell, Parker, 

Kenaston, Robinson, 

Newsom, Speice. — 7. 

Parchin, 

Mr. MAXWELL. Mr. President. I 
move to strike out the words "three 
thousand" and insert the words 
"twenty-five hundred." 

Mr. STEVENSON. Mr. President. 
I hope this amendment will prevail. 
I do not see the necessity of paying 
five judges $3,000 each where at 



SALARIES OF DISTRICT JUDGES 



friday] 



STEVENSOX-GRAY 



[July 28 



least two of the five have got hardly 
anything to do. Today we cut down 
the salaries of the executive officers, 
who have to remove here to Lincoln 
with their families. I hold these 
judges of the district court should not 
be paid any more. I believe in pay- 
ing a man according to what he does. 
Take for instance the fifth district 
that has the counties of Platte, Hall 
and Lincoln in it. Only those three 
counties have had cases in the dis- 
trict court during the last four years. 
Platte had 4 7 cases, Hall 16 and 
Lincoln 65, and I am almost positive 
the business will not increase any 
more in those western counties than 
in the counties along the river. We 
have had the testimony of two dis- 
trict judges who say that four of 
them can do the business and do it 
easily. Why should we put our 
hands into the treasury of the state 
and take out $3,000 every year when 
there is no need of it? Upon what 
ground do I base my calculations? 
Here we have created county courts 
and given them jurisdiction in cases 
as high as $500. I hold there is not 
one case in ten where the amount 
in controversy amounts to more than 
that. They are generally ex parte 
cases; cases upon notes and collec- 
tions, in which parties can go into 
the county court and get judgment, 
and not wait until the district court 
sits. I think we should look to the 
amount of labor these judges have 
to perform and pay them according- 
ly- 

Mr. GRAY. Mr. President. It is 
not my disposition to detain the con- 
vention more than five minutes; but 
lest there should be some misappre- 



hension about the situation of that 
portion of the country which this 
gentleman came from, I desire to be 
heard. During all the discussion 
upon these questions about the num- 
ber of the districts and the salaries 
of the judges I have been willing to 
listen to others, yet some have mis- 
represented a little in reference to 
the question as to what should be 
the salary for district judges. I de- 
sire gentlemen to understand that 
when they speak from the experi- 
ence of one, two or three years ago, 
that it is no criterion to judge the 
present and the future by. I sup- 
pose what we have created in the 
fourth judicial district is a fair ave- 
rage of the other five we have cre- 
ated. It contains nearly all of what 
has been the third judicial district. 
With reference to that section I un- 
dertake to say that what we have 
created as the fourth judicial dis- 
trict here for the next year to come 
will have one-fourth the business 
more than in the year last past, and 
thus the business in that district has 
doubled each year. When I first 
went into Dodge county three years, 
ago, there was not so much business 
as there is now in Cuming county. 
In less than three years the county 
of Cuming will have enough to 
keep a judge at work for two weeks, 
and the same in Stanton county. I 
know how fast that county is filling 
up. I desire to say that the third 
district, at each term of court within 
the past three years, as a general 
rule, the court has worked all day 
and at least half the night, and the 
members of the bar have had to 
work night and day. because the 



186 



SALARIES OF JUDGES 



Friday] 



LAKE-GRAY-HASCALL 



[July 28. 



judfie has not had time. He was so 
llniltod in his salary, and he could 
not borrow the means to so beyond 
the reach of his salary. He had to 
'pay his expenses out of his salary 
and work night and day to work 
within that salary. I do not want a 
judge to work like a nigger, or a 
slave, or let the business be slobber- 
ed over in the hurry. There is no 
fault to find with the fact that we 
have made five judicial districts. 
We have not created them 6 months 
too soon. The next question is of 
pay. The gentleman moves to make 
them $2,500. I make an amend- 
ment that the salary of the judges 
be $3,500. I hope this amendment 
will prevail. I make it in 
earnest. I think the district judges 
should be paid as much as the su- 
preme court judges. Besides, sir, 
we desire to have on one district 
bench with us, and I presume the 
people desire the same — men of the 
best talent. I wish to practice before 
no other than such a man. 

Mr. LAKE. Mr. President. If the 
gentleman from Dodge is serious in 
the proposition he makes, inasmuch 
as he voted the negative on strik- 
ing out $3,500 and inserting $3,000. 
if he will move to reconsider that 
vote, I am satisfied the temper of 
this convention is such that we can 
make all the salaries $3,000. 

Mr. GR.\Y. I desire to say that 
I am not actuated by any such spirit, 
because if this convention should fail 
to increase the salary of the district 
judges with that of the supreme 
court judges— I feel no disposition 
on my part to dragthem down. While 
1 wish to see them on a level I will 



not drag them down to the level of 
the others, but help raise the lower 
to the higher. 

Mr. HASCALL. This $3,500 we- 
inserted was a compromise sum, and 
it seems to be satisfactory. I think 
it is unwise to travel over this 
ground again. So far as the district 
judges are concerned perhaps we can 
well afford to let it remain at $3,- 
000. But if the state could afford 
it I think it would, perhaps, be jus- 
tice to raise it up to $3,500 or more, 
but I think we will satisfy our con- 
stituency to let everything remain as 
it is at the present time. 

Mr. ESTABROOK. It is well 
enough to look around a little and' 
see where we stand on this ques- 
tion. We have had, since we have- 
been in the territory, 17 long years, 
.but three men on the bench. We 
have in this convention two gentle- 
men who since we became a state- 
have performed the functions of that 
place. They have both advised us 
and instructed us, and although 
they were compelled to come here- 
twice a year and sometimes, I think, 
oftener, to hold special terms of the 
supreme court, yet they have been 
unable to discharge all their duties, 
and have three, four, five, six ana 
seven months to themselves. Now, 
then, they have served the state - 
always as a territory and as a state, 
for $2,000 per year, and during a 
portion of the time when money was 
worth $2,75 on the dollar. I have- 
heard that no one even wished to re- 
sign, and whenever the office has 
been vacant I have heard of no par- 
ticular difficulty in getting a gentle- - 
man to make a martyr of himself to- 



SALARIES OF JUDGES 



18T 



Friday] 



ESTABROOK— GRAY 



[July 28 



take up his cross. Now we come in- 
to the convention and the subject is 
before us as to how many officers, 
judges of the bench, shall be re- 
quired for the next five years, as it 
stands, for the discharge of the du- 
ty that has been performed by these 
three men. Well, for the discharge 
of this duty we have agreed, solemn- 
ly and deliberately, calling the ayes 
and nays, that there should be five 
more district judges appointed, and 
that for five years we have declared 
solemnly that that number shall 
neither be added to or diminished. 
That is to say, that duty which, for 
15 years has been discharged by 
three gentlemen, having from five 
to seven months leisure, we will have 
eight gentlemen perform the same 
duty. 

The duties of our district judges 
have been relieved by our having 
provided for three supreme judges, 
and also by the provision for county 
judges, who will have jurisdiction 
of $500.00. I believe that the judges 
are relieved of fully one-third of 
their duties. 

Mr. GRAY. I would say that 
Judge Crounse, judge of the third 
district, recommended to the last leg- 
islature that the law should be 
amended so as to allow a two weeks 
term of court in Dodge county. 
Since then he has used up all that 
time. He made the same arrange- 
ment in Dodge county and he has 
used up all the time there, too. 

Mr. ESTABROOK. I have no 
doubt of it, sir, but that is met by 
the proposition I have made which 
was, that when you give county 
judges a jurisdiction of $500.00 it 



will relieve the district judges of a 
large proportion of their work. They 
will also, perform such chamber du- 
ties as shall be provided by law. So 
that it will not be necessary for the 
western counties to send to the riv- 
er to get a judge to serve an injunc- 
tion, but it can be done by a county 
judge for the time being, to be heard 
when the judge holds his regular 
term of court in that county. My 
friend from Dodge (Mr. Gray) says 
these district judges have a great 
deal of work to do, and they should 
have $3,000.00 a year. There are 
some counties where it is worth more 
than that to hold court in them, 
because when you go there, you must 
go with a guard. I would not be 
niggardly; I would pay every pub- 
lic servant what he is really worth. 
I would not hire a public servant 
unless I needed him. I want to 
pay him a good salary, for we are 
the richest state in the union. I re- 
peat it sir, for I want the reporters 
to get it — we are the richest state 
in the union according to our popu- 
lation. But do we need all these 
judges? If we have one in each 
county we will have 47 county judg- 
es in addition to the three supreme 
judges, and if we divide up among 
all these the business which has been 
done by three district judges and 
which has not occupied them more 
than seven months in the year, it 
seems to me that we will not require 
five district judges. If we have this 
luxury, then as a matter of course 
we will have to pay for it. ' 

If you place the smallest possible 
sum consistent with equity and jus- 
tice, take about twenty-five hundred 



188 



SALARIES OF DISTRICT JUDGES 



Friday 1 



HINMAN— ROBINSON 



[July 28 



dollars, why it would be truly ap- 
palling to think that we have to sup- 
ply a larpre army of lawyers at $3,500 
a head. It would be the biggest tax 
ever imposed on this people. It is 
true 1 tell you where there is one 
who makes over two thousand dol- 
lars in his profession in this country 
there is one hundred who don't make 
one thousand. There are some who 
make ten or fifteen thousand but 
they are very exceptional cases. Now 
I will vote for putting this thing 
down to two thousand dollars if we 
must vote for five mortal judges, for 
I tell you there is no one of them 
worth more than Judge Mason or 
Judge Lake. 

These are my views and now that 
everything has come down in price, 
corn is very plenty this year and 
cheap, I see no particular reason why 
you should take this kind of a strut. 
I tell you while we are serving a 
very good-natured master who will 
indulge us yet I think he will frown 
down upon us when he looks over 
this bill . 

Mr. HIXMAX. Mr. President. I 
was going to remark that I don't 
know whether we can instruct these 
ancient gentlemen who live in the 
villages, of the amount of business 
we do in this little fifth wheel where 
I happen to live. These gentlemen 
get up here and pretend to say that 
they don't get more than two thous- 
and dollars a year. I know of two 
lawyers in our place who will make 
more than that at the next term of 
court. Why don't you come out 
there where we have some business. 
May be we will elect you to the judg- 
ship if you will come out there and 



show your worth. Come out and 
show your bottom ( Laughter). Now 
let us for a moment look at the 
business of Lincoln county. I don't 
believe there has been a court there 
that has not had from 15 to 20 crimi- 
nal cases, it is not unusual to have 
30 indictments brought in at one 
term. If you look at the records of 
the state you will find that we have 
sent more men to the state peniten- 
tiary than any other county in the 
state except Douglas county. Why, 
sir, it is no unusual thing to run 
that court until two o'clock in the 
morning. The judge and the law- 
yers are both over-worked and you 
ask him to work for a mere pittance. 
We wish to elect a man who will try 
and do his duty. It is not infre- 
quent we have suits involving $1,000. 
In the last term of court we had a 
case that took six weeks to take the 
testimony, involving about $20,000, 
it had to be passed over, and is not 
yet settled. I hope the convention 
will vote a liberal salary. 

Mr. ROBINSON. I move the pre- 
vious question. 

The PRESIDENT. Shall the main 
question be now put? 

The question was agreed to. 

The PRESIDENT. The question 
is on striking out "three thousand" 
and inserting "twenty-five hundred." 

The ayes and nays were demanded. 

The secretary called the roll and 
the President announced the result 
ayes, 26; nays, 19, as follows: 

AYES. 
Ballard, Curtis, 

Campbell, Estabrook, 

Cassell, Gibbs, 



PERQUISITES— COUKTY JUDGES 



18& 



Friday. 



HASCALL-NELIGH 



[July 28 



Myers, 
Xeligh, 
Philpott, 
Price, 
Reynolds, 
Shaff, 
Sprague, 
Stevenson, 
Stewart, 
Weaver. — 2 6. 
NAYS 
Scofield, 
Thummel, 
Thomas, 
Tisdel, 
Towle, 
Vifquain, 
Wakeley, 
Wilson, 
Woolworth. — 19. 



Griggs, 

Kenaston, 

Kilburn, 

Kirkpatrick 

Lake, 

Lyon, 

McCann, 

Majors, 

Maxwell, 

Moore, 

Abbott, 

Boyd, 

Eaton, 

Gray, 

Hascall, 

Hinman, 

Ley, 

Mason, 

Manderson, 

Robinson, 

ABSENT AND NOT VOTING. 

Granger, Parker, 

Grenell, Speice, 

Newsom, Mr. President. — 7. 

Parchin, 

Mr. BOYD. Mr. President. I 
move the adoption of the section 
and on that motion move the previ- 
ous question. 

The PRESIDENT. Shall the main 
question be now put? 

The motion was agreed to. 

Section thirteen was adopted. 

Mr. HASCALL. Mr. President. I 
move a reconsideration and to lay 
that motion upon the table. 

The committee divided and the 
motion was agreed to. 

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 emolu- 
ments. 



Section fourteen was adopted. 
The secretary read the next sec- 
tion, as follows: 

Sec. 15. There shall be elected in 
and for each organized county one 
judge who shall be judge of the coun- 
ty court and whose term of office shall 
be two years, 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 and exercise the ju- 
risdiction of county judge in said 
district. 

Mr. NELIGH. Mr. President. I 
move to strike out all after the word 
"years," in the second line. My reas- 
on is this. That amendment pro- 
vides for two or three more counties 
being united in one district for a 
county judge. It will work great 
hardships to new counties. I believe 
each organized county ought to have 
one judge. In case of two or three 
counties being connected together, a 
person having some little law or pro- 
bate business to transact would 
have to go forty or fifty miles to 
have it done. Seeing that the people 
of Nebraska are so willing to pay 
taxes, I am for one, willing that the 
homesteader who goes on a settle- 
ment of fifty or a hundred miles out,, 
should have the benefit of a court in 
the county he settles in. I hope this 
amendment will prevail. 

The amendment was agreed to. 

The PRESIDENT. The question 
is on the adoption of the section. 

Section fifteen was adopted. 

'I'he secretary read the next sec- 
tion, as follows: 

Sec. IG. County courts shall be 
courts of record, and shall have origi- 
nal jurisdiction in matters of probate, 
settlement of estates of deceased per- 



190 



COURTS— REMO\^AL FROM OFFICE 



Frill !ivi 



ROBINSON 



[July 28 



sons. ;ii>iii)iiitnient of guardians and 
settlfiiuMit of their accounts, in all 
matters relating to apprentices, and 
In procei'dings for the collection of 
J axes and assesments, and such other 
jurisdiction as may be given by gene- 
ral law: provided, that in counties 
having a population of three thous- 
and and upwards, the legislature 
may confer upon said courts jurisdic- 
tion in sales of i-eal estate by execu- 
tors, administrators and guardians. 
But they shall not have jurisdiction 
in criminal cases in which the pun- 
ishment may exceed six months im- 
prisonment or a fine of over five hun- 
' dred dollars nor in actions in which 
the title to real estate is sought to be 
recovered, or may be drawn in ques- 
tion, nor in action on mortgages, or 
on contracts for the conveyance of 
real estate, nor when the debt or sum 
claimed shall exceed five hundred 
dollars. 

Mr. ROBINSON. I move to make 
an amendment to insert, after the 
word "estate" in the sixth line, "ou 
execution and." I think when this 
court has jurisdiction over $500 it 
may try to sell real estate on juris- 
diction. 

The convention divided and the 
amendment was agreed to. 

The sixteenth section as amended 
was adopted. 

The secretary read the next sec- 
tion, as follows. 

Sec. 17. Appeals to the district 
court from the judgments of county 
courts shall be allowed in all crimi- 
nal cases on application of the de- 
fendant, and in all civil cases, on ap- 
plication of either party in which the 
amount in controversy shall exceed 
twenty-five dollars, and in such othei 
cases as the legislature may pro- 
vide. 

The seventeenth section was adop- 
ted. 



The secretary 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. Provided?, 
that no justice of the peace shall 
have jurisdiction of any civil case 
where the amount in controversy 
shall exceed $100, nor in a criminal 
case where the punishment may 
exceed three months imprisonment, 
or a fine of over $100, nor in any 
cause involving the title to real es- 
tate. 

The eighteenth section was adopt- 
ed. 

The secretary read the next sec- 
ition, 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 practices of all courts of the 
same class or grade, so far as regu- 
lated by law, and the force and ef- 
fect of the process, judgments and 
decrees of such courts severally, 
shall be uniform. 



The nineteenth section was adopt- 



ed. 



The secretary read the next sec- { 
tion, as follows. ' 

Sec. 20. The legislature may, for 
cause entered on the journals, upon 
due notice an 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 of- 
fice, in such manner as may be pro- 
vided by law. 



The twentieth section was adopt- 



ed. 



SUITS AGAINST STATE— PROCESS 



191 



Friday; 



SECRETARY 



[July 2H 



The secretarj- read the next sec- 
tion, as follows. 

Sec. 21. All judges of courts of 
record, inferior to the supreme court, 
shall, on or before the first day of 
June each year, report in writing to 
the judges of the supreme court, 
such defects and omissions in the 
laws as their experience may sug- 
gest; and the judges of the supreme 
court shall, on or before the first day 
of January of each year, report in 
writing to the governor such defects 
and omissions in the constitution and 
laws as they may find to exist, to- 
gether with appropriate form 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- 
«?pective districts, during the preced- 
ing year. 

The twenty-first section was adopt- 
ed. 

The secretary 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 twenty-second section was 
adopted. 

The secretary read the next sec- 
tion as follows; 

Sec. 2 3. In case the office of any 
judge of the supreme court or 
any district court shall become 
vacant before the expiration of 
the regular term for which he 



was elected, the vacancy shall be 
filled by appointment by the gov- 
ernor until a successor shall be 
elected and qualified; and such suc- 
cessor shall be elected for the unex- 
pired term at the first annual elec- 
tion that occurs more than thirty 
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 
be filled by appointment, in such 
manner as the legislature may pro- 
vide. 

The twenty-third section was 
adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 24. The legislature shall pro- 
vide by law in what manner and in 
what courts suits may be brought 
against the state. 

The twenty-fotirth section was 
adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 25. The several judges of the 
courts of record in this state shall 
have such jurisdiction at chambers 
as may be provided by law. 

The twenty-fifth section was adopt- 
ed. 

The secretary read the next sec- 
tion, as follows: 

Sec. 2 6. All process shall run in 
the name of the People of the State 
of Nebraska and all prosecutions 
shall be ("arried on- In the name of 
the People of the State of Nebraska: 
anf^ roncludin<r against the peace 
and dignity of the same. 

The twenty-sixth section was 
adopted. 

The PRESIDENT. The question 
is now upon the engrossment of the 
article for its third reading. 



11«2 



SEl'ARATE BALLOT BOXES FOR JUDGES 



FridiiyJ 



t;RAY-\VAKELEY-GRIGGS 



[July 28 



Mr. GRAY. I now move to recon- 
sider the vote by which section ten 
was adopted, and also to move to 
lay that motion on the table. 

Th<' motion was agreed to. 

Mr. WAKELEY. Mr. President. I 
move the adoption of a new section, 
as follows: 

Ballots for judges ot 



the supreme and district courts shall 
be deposited into separate boxes to 
be provided for that purpose. 

Mr. HINMAN. I was about to 
suggest a provision for the election 
of district judges and their qualifi- 
cations. 

Mr. WAKELEY. Mr. President 
that is the same amendment in sub- 
stance that was offered in commit- 
tee of the whole by the gentleman 
from Otoe. I renew it here, and ask 
the attention of the convention foi 
a few moments while I speak to it. I 
suppose Mr. President that we shall 
all agree upon the plural proposition 
that the election of judges should 
so far as possible, be kept from all 
partisan and political things. There 
are two methods. 

It may be that it would not be 
deemed advisable in this state to 
have supreme and district judges 
elected on different days, but sir, the 
proposition which is now before the 
convention does not require any ad- 
ditional expense, trouble or labor. 
It simply provides that in the elec- 
tion of these judges, ballots shall be 
deposited in a separate box from 
that in which ballots for political of- 
ficers shall be deposited. I think, 
Mr. President, that the adoption of 
that simple provision would tend 



very considerably towards relieving 
the election of our judges from po- 
litical influence. I believe that vo- 
ters would be much more apt t. 
make a political question of the elec- 
tion of judges if their names are ou. 
the same ballot as are the names of 
candidates for political offices. The 
reason, as we all know, is obvious. 
We know that men take the ticket 
of their party, and vote it, because 
it is the ticket of their party. That, 
sir, is all I care to say on this pro- 
position. It seems to me it is emi- 
nently a proper one, and I think it 
is advisable that we should adopt 
it. 

Mr. GRIGGS. Mr. President. The 
gentleman from Douglas (Mr. Wake- 
ley) says that the election of judges 
of the supreme court should be kept 
as far as possible, from questions or" 
a political nature. I would agree 
with him in that respect, but don't 
see that the method proposed would 
secure the end desired. I don't be- 
lieve that simply depositing a ballot 
in another box would prevent the 
election of judges from becoming a 
political issue. Why our friend 
Woolworth gave due notice that he 
wanted to run a democratic candi- 
date against Judge Crounse. It 
seems to be understood that the fill- 
ing of these positions is to be a po- 
litical question. I don't see that the 
section offered by the gentleman 
from Douglas (Mr. Wakeley) will 
secure the end desired. The simple 
fact of having the ballots placed in 
a separate box will not accomplish 
that end. 

The PRESIDENT. The question is 
upon the amendment offered by the 



SALARIES FOR COUNTY JUDGES 



193 



Friday] 



WOOLWORTH— LAKE-THOMAS 



[July 28 



gentleman from Douglas (Mr, Wake- 
ley.) 

The ayes and nays being demand- 
ed the secretary called the roll. 

The President announced the re- 
sult — ayes 17; nays, 27 — -as follows: 

YEAS. 



Abbott, 


Moore, 


Boyd, 


Stevenson, 


Campbell, 


Thummel, 


Eaton, 


Thomas, 


Hascall, 


Towle, 


Hinman, 


Vifquain, 


Ley, 


Wakeley, 


Mason, 


Wcolworth. — 17 


Manderson, 






NAYS. 


Ballard, 


Maxwell, 


C'lrtis, 


Neligh, 


Ustabrook, 


Philpott, 


Gibbs, 


Pi ice. 


Granger, 


Reynolds, 


Gray, 


Robinson, 


Griggs, 


Sec field. 


Kenaston, 


Shaff, 


Kilburn, 


Sprague, 


Urkpatrick, 


Stewart, 


Lake, 


Ti^del, 


I.,yon, 


Weaver, 


M.;Cann, 


Wilson— 27. 


Majors, 




ABSENT 


AND NOT VOT[NG. 


Cassell, 


Parchin, 


Grenell, 


Parker, 


Myers, 


Speice, 


Newsom, 


Mr. President — ! 



So the amendment was not agreed 
to. 

Mr. WOOLWORTH. Mr. Presi 
dent. I desire to offer another sec- 
tion to the article. 

The secretary read the proposed 
section, as follows: 

"No salary shall be paid by the 
state to any county judge." 

I wish to protect the state from 
having to support these 47 judges. 
13 



Mr. LAKE. Mr. President. I 
hope this proposition will prevail. I 
believe that provision should be 
made by law for the payment of these 
county judges by their respective 
counties. 

Mr. MASON. I will say that our 
probate judges are now paid by fees, 
and if their jurisdiction is extend- 
ded to $500 there will be no difficul- 
ty about salaries. 

Mr. SPRAGUE. Mr. President. I 
am in favor of the county judges 
getting their pay from fees, but if 
the state should have business in 
these courts I think it should pay for 
it. 

Mr. THOMAS. Mr. President. The 
county judges provided for in this 
provision should be paid for in the 
same way probate judges are now 
paid; they get no salary, but are 
paid by fees. The proposition of the 
gentleman from Douglas (Mr. Wake- 
ley) is that they may be paid in this 
way, or if the legislature saw fit, it 
could be provided that they should 
receive a salary from the county. My 
plan would be to have these judges 
paid entirely by fees. What can 
these county courts do for the state 
Suits against the state will be 
brought in the district court. It 
seems to me that this section is ex- 
actly right. It is certain sir, that 
we shall provide for a guard of the 
state treasury to say that the leg- 
islature shall take no money out of it 
to pay these county judges. 

Mr. MASON. All I desire to say 
in answer to the gentleman from 
Saunders (Mr. Sprague) the .state 
never pays costs or fees in any case. 



I'.M 



ELIGIBILITY FOR JUDGE 



PridayJ 



SPRAGDE-HINMAN- STEVENSON 



[July 28 



In all criminal oases the costs are 
paid by the counties. I think that 
if yoti leave it an open question 
whether the state shall pay these 
county judges or not you sink 
the whole constitution. You have 
wiped out commencement fees and 
I think justly, and now say that you 
will not pay these fifty county judges. 
1 hope this provision may prevail. 

Mr. SPRAGUE. I believe by my 
vote I have shown as much desire to 
protect the state treasury as any 
other gentleman that has been here, 
and I am in favor of not paying a 
salary, but as to compensation, that 
is another question. 

The PRESIDENT. The question is 
on the adoption of the section. 

The ayes and nays are demanded; 
secretary call the roll. 

The vote was taken and the re- 
sult announced — ayes, 39; nays, 3, 
as follows: 



AYES. 



Abbott. 

Ballard, 

Boyd. 

Campbell, 

Curtis 

EJaton, 

Estabrook, 

Gibbs, 

Granger, 

Gray, 

Griggs 

Hascall 

Kilburn, 

Lake, 

Ley. 

Lyon, 

McCann. 

Majors 

Mason, 

Mandorson, 



Maxwell, 

Moore, 

Philpott, 

Price, 

Reynolds, 

Robinson, 

Scofield, 

Shaff, 

Stevenson, 

Stewart. 

Thummel, 

Thomas, 

Tisdel, 

Towle, 

Vifquain. 

Wakeley, 

Weaver, 

Wilson, 

Woolworth, — 39. 



Kilburn, 
Neligh, 

ABSENT 
Cassell, 
Grenell, 
Hinman. 
Kirkpatrick, 
Myers, 

Mr. LAKE. 



NAYS. 
Sprague,- 



AND NOT VOTING. 

Newsom, 
Parchin, 
Parker, 
Speice, 

Mr. President, — 10. 
Mr. President. If 
there are no other amendments to be 
offered I will move to order this ar- 
ticle engrossed for its third read- 
ing. 

Mr. HINMAN. Mr. President. I 
have an amendment to offer as an 
independent section. 

The secretary read the section, as 
follows: 

"No person shall be eligible to the 
office of judge of the district court 
unless he shall be 21 years of age 
and a citizen of the United States; 
nor unless he shall have resided in 
this state at least one year next pre- 
ceeding his election, and they shall 
be elected at the general election 
in the year 1871, and every four 
years thereafter." 

Mr. STEVENSON. Mr. President. 
I should like to know how a man 
could be elected to an office until 21 
and a citizen of this state? 
I don't see any necessity for this sec- 
tion. Of course he cannot hold of- 
fice until he is a legal voter. 

Mr. LAKE. Mr. President. I be- 
lieve this proposed section to be en- 
tirely useless. So far as the election 
is concerned it is provided that they 
shall be elected for six years. It is 
provided that the supreme judges 
shall be 35 years of age, and it was 
thought best to leave that of the dis- 
trict judges with the legislature. A 
constitution is intended to put re- 



THE JUDICIAL ARTICLE 



195 



Friday] 



MANDERSON— MASON— THOMAS 



[July 28 



strictions on the legislature. We 
liave thrown one restriction on the 
legislative power, in respect to the 
age of supreme judges, but do we de- 
sire to do it in respect to district or 
county judges? I think not. 

The motion was not agreed to. 

The PRESIDENT. The question 
is on engrossing the bill. 

Mr. EATON. Mr. President. I 
move that when we adjourn tomor- 
row it be at noon until Monday at 
two o'clock. 

The PRESIDENT. I will put the 
motion on engrossement first. 

Mr. MANDERSON. Mr. Presi- 
dent. I hope any further action 
upon that article will be postponed 
until next week. For one I must 
confess, that that judicial article as 
it now stands, and is about to be en- 
grossed is of a character that on its 
final passage will not receive my 
vote. I believe there are other mem- 
"bers of the convention who feel in 
the same way. I suggest more par- 
ticularly a very objectionable feature 
is the county court system as it 
stands there. I hope further action 
will be postponed until the coming 
week. 

Mr. MASON. Mr. President. I 
have the same request to make for 
myself. I desire to review this ar- 
ticle and there are other gentlemen 
Tvho feel in the same manner. I do 
not know whether it can be improved 
npon or not. If it can be, certainly 
the convention will be anxious to do 
so. 

Mr. THOMAS. Mr. President. I 
hope this article may not be ordered 
engrossed at the present time, I 



jthink the article should be perfectly 
examined. 

Mr. LAKE. Mr. President. At 
the solicitation of the gentlemen who 
desire further time to examine this 
article and being also of the opin- 
ion that we cannot give it too careful 
consideration I will withdraw the 
motion to engross. 

Mr. WAKELEY. Mr. President. 
I move that the further consideration 
of the judicial article be postponed 
until Monday at two o'clock. 

The motion was agreed to. 

The PRESIDENT. The question 
is on the motion of the gentleman 
.from Otoe (Mr. Eaton). 

The ayes and nays were demanded. 

The secretary called the roll and 
the president announced the result; 
ayes, 18; nays, 26 as, follows: 



YEAS 



Boyd, 

Campbell, 

Eaton, 

Estabrook, 

Hascall, 

Lake, 

McCann, 

Mason, 

Manderson, 



Abbott. 

Ballard, 

Curtis, 

Gibbs, 

Granger, 

Gray, 

Griggs, 

Hinman. 

Kenaston, 

Kilburn, 

Kirkpatrick, 

Ley, 

Lyon, 



Maxwell, 

Philpott, 

Robinson, 

Scofield, 

Shaff, 

Towle, 

Wakeley, 

Wilson, 

Woolworth,- 



-18. 



NAYS. 



Majors, 

Moore, 

Neligh, 

Price, 

Reynolds, 

Sprague, 

Stevenson, 

Stewart, 

Thummel, 

Thomas, 

Tisdel, 

Vifquain, 

Weaver, — 26. 



r.u; 



EXTRA FAY FOR REPORTERS 



Saturday] 



HASCALL-ESTABROOK— McCANN 



[July 28' 



ABSENT AND NOT VOTING. 
Cassell. Parchin, 

Grenell, Parker, 

MviTS, Speice, 

Newsoni. Mr. President. 

Leave of Absence. 

Mr. MASON. I desire leave of ab- 
sence until Tuesday afternoon. 

Leave was granted. 

Mr. BOYD. I ask leave of absence 
until Monday afternoon. 

Leave was granted. 

The following asked leave of ab- 
sence from Saturday noon until Mon- 
day afternoon. 

Messrs. McCann, Lake, Wilson, 
Kenaston, Campbell, Hascall, Wake- 
ley, Manderson, Maxwell and Esta- 
brook. 

Leave was granted. 

Mr. WOOLWORTH. I desire an 
indefinite leave of absence. 

Leave was granted. 

Adjournment Again. 

Mr. GRIGGS. I move we adjourn 
until 9 o'clock tomorrow. 

Motion agreed to and the conven- 
tion (at 10 o'closk and 30 minutes) 
adjourned. 

THIRTIETH DAY. 

Saturday, July 29, 1871. 
The convention met at 9 o'clock 
a. m., and was called to order by the 
president. 

Prayer. 

Prayer was offered by the Chap- 
lin to the convention Rev. L. B. Fi- 
fleld, as follows: 

O, Thou, who from everlasting to 
everlasting art God. In Thee may 
we put our trust. To Thee may we 



give our lives. May we desire that 
grace by which man may walk in the' 
way of the Most High God, that when, 
this life is ended we may enter that 
better life in Heaven. Amen. 

Reading of the Journal. 

The journal of the last day's pro-^ 
ceedings was read and approved. 

Mr. HASCALL. Mr. President. I 
would like to enquire if the standing 
committee on Education have re- 
ported the section back. If so I think 
it would be well to finish up that ar- 
ticle this morning. 

Mr. ESTABROOK. I have prepar- 
ed an amendment to correspond with 
the action of that special committee,, 
and am ready to submit it to the con- 
vention whenever they desire to take 
it up. 

Resolutions — Official Reporters. 

Mr. McCANN. Mr. President. I 
have a resolution. 

The secretary read the resolution,, 
as follows: 

Resolved, That the president of 
the convention is hereby authorized 
to certify to the auditor one day's ser- 
vices to the oflicial reporters of the 
convention for each night session of 
this body. 

Mr. McCANN. Mr. President. The 
object of this resolution is to secure 
to the official reporters pay for night 
sessions, inasmuch as we have al- 
ready employed them at a stated sum 
per day, while we were under the 
order of ten o'clock in the morning 
and two o'clock in the afternoon. 
We then commenced our meetings 
at nine in the morning instead of 
ten o'clock, there was an additional 
hour for which no account was 
made, and it is found that meetings- 



EXTRA PAY FOR REPORTERS 



197 



Saturday] 



McCANN— MASON— BELL 



[July 29 



at night render it impossible for our 
reporters to make up their work as 
they did while we were meeting six 
hours per day. In the constitutional 
■convention of Illinios their debates 
were reported at the rate of $132 
per day; in our convention we are 
having them reported at the rate of 
$30 per day. While we are run- 

ning during the day, with an extra 
session at night. If this resolution 
should pass you would be incurring 
additional expense, but I submit to 
the convention that it would be bet- 
ter, rather than foregoing the night 
sessions to incur this expense. The 
reporters find it impossible to keep 
up only by working at their notes 
after we have finally adjourned and 
must take additional time to com- 
plete" this work. Rather than give up 
the night session, thereby saving a 
half day's per diem of the members 
of the convention, let us pay these 
men, and then we can get through. 

Mr HINMAX. Does it give an ad- 
ditional day for every night's ses- 
sion. 

The secretary read the resolution. 

Mr. McCANN. I wrote it one day. 
The reporters insisting that they 
would work six hours by daylight, 
rather than three at night. I am in 
favor of the whole day, but if they 
will accept a half day I am in favor 
of that. I think five nights would 
carry us near to a close. 

Mr. MASON. Mr. President. I 
do not know any reason why this 
resolution should pass in favor of 
these employees of the convention 
any more than in favor of the clerks 
and other employees. If they can- 



not get through let us put in such a 
day's work as duty shall demand, 
and let every gentleman take the 
pay agreed upon. 

Mr. J. T. BELL (one of the report- 
ers). Mr. President. May I be al- 
lowed to say a few words? 

The PRESIDENT. If the conven- 
tion give leave. (Leave, leave.) 

Mr. BELL. Mr. President. When 
the members of this convention come 
here at night they simply sit during 
the session, and then go home, when 
we report three hours we require 
fifteen hours to write up. We re- 
quire five hours for transcribing each 
hour's short-hand notes. We trans- 
scribe till midnight and commence 
again early in the morning, when 
you hold day sessions only, but when 
night sessions are held we come here 
and report until ten and eleven 
o'clock, and then are worn out and 
cannot go home to transcribe. 

Mr. PHILPOTT. Mr. President. I 
am of the opinion that there are no 
oflicers in connection with this con- 
vention who work so hard as the re- 
porters. I think the laborer is wor- 
thy of his hire; and if there are any 
men entitled to extra pay for extra 
work it is our reporters. I know 
they work hard, early and late. I 
have seen them and so know of what 
I speak. 

Mr. MASON. I desire now and 
here to say that I am|, as far as I am 
concerned, ready and willing to re- 
lieve the reporters from taking any- 
thing that I may say. And rather 
than increase this pay, I stand here 
to protest, In the name of the peo- 



19H 



EXTRA PAY FOR REPORTERS 



Saturday] 



McC ANN- ABBOTT 



[July 29^ 



pie. wno nave to pay the taxes, and 
are not able to bear it. 

Mr. McCANN. I only offer this 
rosoiiilion simply because I under- 
stand and know, that the reporters 
will be discontinued, if satisfactory 
arrangements are not made for 
nifiht sessions. Your rules and the 
contract made with these gentlemen 
prescribed certain hours. You im- 
pose extra duties and you ought to 
give extra pay. These gentlemen 
have not taken down many words of 
mine during this session and I would 
prefer that not a single word; noth- 
ing more than a vote, shall be taken 
down. I do not ask the time of 
these reporters for taking much that 
I have said, and certainly any thing 
that I will say. I believe brevity is 
a principle which ought to be ac- 
knowledged by men here. The non- 
talking members have a few rights 
which the talking members are 
bound to respect. Gentlemen of this 
convention, the time is drawing near 
to an end when the few members of 
this convention are going to occupy 
hour by hour and day by day; in- 
creasing the expenses of this con- 
vention, burdening the taxpayers of 
this state needlessly. Now, I am 
just as willing as anybody has been 
or can be, to discontinue these re- 
ports altogether. When the reports 
of this convention were provided for, 
I did not expect we would be here 
over one-half the time we have been. 
I was willing for the sake of those 
who wish to occupy the time of this 
convention, to incur this expense. 
Now we have gone thus far I would 
nf)t like, if we go on with night ses- 
sions to have a break, and let the 



reports t)e discontinued, therefore 
we ought to do something with re- 
spect to remunerating the reporters. 
Mr. ABBOTT. Like the gentle- 
man from Otoe, I have a word to 
say against the breaking of the 
chain here. I have not taken up 
much time. When I do take up 
time and help to increase the labor of 
these employees, then I will protest 
against other expenses. The gentle- 
man from Otoe (Mr. McCann) says 
it will take us five days to finish 
this thing by holding night sessions, 
and that at $30 would be $150. I 
will come down with the $3 1 receive 
for one day, and if other gentlemen 
will do the same we can go along. 
But when men who pretend to talk 
about the people being burdened 
with taxes, and not being able to af- 
ford these expenses, and these gentle- 
men are those who talk the most, I 
think such remarks come with bad 
grace. I am willing to pay my share. 

Mr. GRIGGS. I would not be will- 
ing that the report should be broken 
off at this stage. I am like the gen- 
tleman from Hall (Mr. Abbott), I 
would be willing to pay the $3 1 re- 
ceive towards the pay of the report- 
ers. I believe the resolution is a 
just one. I know they do work un- 
til midnight. When we quit at 
night we have our leisure, but these 
men have to work for hours and then 
they do not get through more than 
half. If we had, at the beginning of 
the session said we did not wish the 
reports, then it would have been 
well enough, but not now. As w& 
commenced and are about three- 
fourths through, the people would' 
ask that we continue the debates 



EXTRA PAY FOR REPORTERS 



199 



Saturday] 



STEWART— EATON— MAJORS 



[July 29 



through the entire session. I hope 
the resolution, or something similar, 
will prevail. 

Mr. STEWART. I believe I have 
not occupied the time of this conven- 
tion very much, and when the report- 
ers were first employed I felt op- 
posed to it but as they are employed 
and have taken the speeches of the 
members, and are compelled to woriz 
five or six hours at night to trant.;- 
scribe in order to keep the matter 
from accumulating on their hands, 
I for one, think it nothing more than 
right that they should be paid. I 
am opposed to spending money as 
much as any one, but I am in favor 
of getting through as soon as pos- 
sible. This is not demagogery. I 
want the full proceedings, so that 
we may refer to it hereafter. 

Mr. EATON. I would inquire if 
these reporters received their pay 
while under adjournment? If so I 
see no justice in this demand. It 
is a regular bargain that they 
should receive $30 per day, and we 
$3; and there is no more justice in 
their claiming extra pay than we. I 
protest against that. If those who 
want to do the talking are in favor 
of continuing the reporters let them 
pay for it. This is the first time I 
have occupied the time of this con- 
vention since I came here. 

Mr. MAJORS. I am opposed to 
the resolution from this considera- 
tion — that I am opposed to the night 
sessions. I think if members would 
work well during the day that we 
should be relieved, and I shall vote 
against the resolution from that 
fact; and on those grounds I pro- 
pose to vote against night sessions, i 



Mr. McCANN. That is just the 
poinst. My idea is that you save 
the difference between $30 and $150 
per day. 

Mr. BALLARD. Mr. President. I 
wish, sir, in connection with others 
to say a word with regard to this 
matter. I was opposed to having any 
report, but upon mature reflection, I 
concluded it was best, one reason 
why I concluded it was best was that 
perhaps after generations would like 
to see that record, or in a few years 
it may become necessary to look over 
that record and see just what some 
gentlemen did here. It is possible 
some one of us is making up a state 
reputation. Now, sir, as we have 
commenced making up a journal of 
the proceedings of this convention, I 
am opposed to stopping it at this 
time. We have a record partially 
made up and for us to stop now, 
would be, in my opinion, boy's play. 
These gentlemen have served us 
faithfully, at figures I considered 
high, but I know nothing about this 
kind of business. I am opposed to 
stopping night sessions, because we 
don't work well in the day time. Sir, 
if this convention means to sit in ses- 
sion until the 1st of September I am 
one of the members that is going to 
resign and go home. It was expect- 
ed by the people generally, that 
from four to six weeks was all the 
time required to do this work. I 
am in favor of going right on, and I 
want the reporters paid for their 
night work. 

Mr. ABBOTT. Mr. President. I 
think I like the sound of my voice, 
and Iwould like to speak again, if I 
can get leave. (Leave, leave.) 



t>uo 



EXTRA PAY FOR REPORTERS 



>iiiiinluy J 



ABBOTT— MAN6eRSON— MAXWELL 



[July 29 



I want to say just one word. I 
think this thing of having night ses- 
sons is done to accommodate us. I 
am unwilling to call upon men who 
work to accommodate me to do this 
work for nothing. Now I want to 
know if there is any gentleman here 
who will refuse to vote one days 
pay to these reporters, and thus save 
five days work, and five days expense 
to the state, as it is said will be 
done by having these night sessions 
continued. A day's pay from each of 
the members will give the reporters 
$150 and that is all they ask for the 
five night sessions. The state will- 
save $G 30.00 by the transaction. 

Mr. MANDERSON. Mr. President. 
I would like to say one word on this 
subject, as I was chairman of the 
committee who employed these gen- 
tlemen. The first proposition was 
that these gentlemen, four of them, 
would do the work for $40.00 per 
day. The committee thought that 
was too much, but upon investigation 
we found that to be less than regu- 
lar prices. We afterwards secured 
these gentlemen at $30.00 per day, 
and I say that Is very cheap. The 
contract was that they were to work 
during the day, as we had adopted a 
rule at that time establishing the 
hours during which our sessions 
would be held. 

Mr. MAXWELL. I would like to 
ask the gentleman from Douglas 
(Mr. Manderson) a question. 

Mr. MANDERSON. Go on, sir. 
. Mr. MAXWELL. Did not you, as 
chairman of that committee report 
that these gentlemen would report 
the debates of this body for $30 per 
dav? 



Mr. MANDERSON. Yes sir. That 
was to be during the session of the 
convention. Now I am told by these 
gentlemen, and others who are ac- 
quainted with this kind of work, 
that it will take them from thirty to 
forty days after the rising of this 
convention to prepare their manu- 
script for the printer. For this they 
will receive no pay. Now I believe 
my friend from Otoe (Mr. Mason) — 
if he employed a man to labor on his 
farm by the day he would not ask 
him to work at night for nothing. 
This would be like the carpenter who 
said, after working his men all day, 
"let us knock off and play a while 
and dig cellars by moonlight." 
(Laughter.) 

Mr. MAXWELL. Mr. President. 
At the time the gentleman made this 
report to this body I certainly 
thought it was a high price. I re- 
member the phraseology of the gen- 
tleman's report. He stated that he 
had made arrangements with these 
gentlemen to report the debates of 
this body at $30 per day. There 
was nothing said about night ses- 
sions. I am willing to add. Now 
here we commence our sessions at 
nine o'clock and hold till twelve, 
meeting again at two o'clock and 
holding until six. Now the last two 
night sessions we met at eight and 
held until ten. Now we propose to 
pay for these two hours as much 
as a day's work. If it is right to 
pay this extra compensation to these 
reporters it is right to pay our 
clerks and our members. During 
the adjournment of ten or twelve 
days we have paid these reporters 
their regular price for working and 



EXTRA FAY FOR REPORTERS 



201 



■Saturday] 



MASON— KENASTON— WILSON 



[July 29 



tney nave done nothing unless It 
was writing up their notes. I for 
one don't object to the expense of 
reporting the long speeches which 
have been referred to . 

Mr. MASON. Mr. President. I 
don't propose to discuss this proposi- 
tion further but wish to say one 
word. I don't iindert'ike to instruct 
any gentleman as to what he should 
say or do in this convention; much 
less do I permit any gentleman to say 
what I shall do or when I shall 
speak. I don't admit the right of 
my colleague ,(Mr. McCann) to say 
who is the working man and who the 
talking man of this body. It comes, 
;sir, with ill grace. He shall not erect 
any standard of conduct for me; if 
he does I shall not recognize it as 
his right. 

Mr. KENASTON. Mr. President. 
1 understand this convention came 
■here for the purpose of making a 
constitution. It was proposed to 
pay the members $3.00 per day and 
when we work at night, we get noth- 
ing for it. I see no reason why these 
reporters, who are hired by the 
•day should not work at night the 
same as ourselves. The idea has oc- 
curred to me that perhaps these gen- 
tlemen will have to work 30 days in 
writing up, but it is evident they 
■considered this in their proposition, 
when they asked $30 per day. 

Mr. WILSON. Mr. President. I 
TQOve to amend the resolution of the 
gentleman from Otoe (Mr. McCann) 
"by striking out "one day" and in- 
.-serting "one-half day." 

Mr. EATON. I would like to ask 
whether, if we vote this extra pay 



for night sessions, they will be will- 
ing to lose the adjournments. 

The PRESIDENT. The question is 
upon the amendment offered by the 
gentleman from Johnson (Mr. Wil- 
son.) 

The PRESIDENT. The question 
is on the amendment to strike out 
"one" and insert "one-half." 

The ayes and Nays are demanded 
■ — secretary call the roll. 

The secretary proceeded to call 
the roll. 

Mr. SPRAGUE. (When his name 
was called said) Mr. President, I am 
opposed to the resolution, both for 
the half day and the day, but I will 
vote to give half instead of the whole 
day. 

Mr. WOOLWORTH. (When his 
name was called said). Mr. Presi- 
dent. I desire to say in this connection 
I do know for my part that all the 
reports that have been taken hereto- 
fore will be suppressed and never be 
published. For a good many more 
reasons than one I vote, no. 

Mr. BALLARD. Mr. President, I 
wish to change my vote, to aye. 



The result was announced- 
27; nays, 16, — as follows: 



-ayes. 



AYES. 



Abbott, 

Ballard, 

Boyd, 

Campbell, 

Cassell, 

Curtis, 

Gray, 

Griggs, 

Hinman, 

Kilburn, 

Lake, 

Ley, 



Lyon, 

McCann, 

Manderson, 

Neligh, 

Phil pot ij. 

Price, 

Robinson, 

Reynolds, 

Scofield, 

Sprague, 

Stewart. 

Thummel, 



202 



COUNTY OPTION 



Saturday] 



MANDERSON-KILBURN 



[July 29 



Towle, 
Weaver, 



Wilson, — 27. 

NAYS. 

Parchin, 

Scofield, 

Shaff, 

Stevenson, 

Thomas. 

Tisdel, 

Vifqiiain, 

Woohvorth, 



-16. 



Eaton, 

Est a brook, 

G ranker, 

Kenaston, 

Kirkpatrick, 

Majors, 

Mason, 

Maxwell, 

Moore, 

ABSENT 
Gibbs, 
Grenell, 
Hascall, 
Myers, 
Xewsom, 

So the amendment wa^ agreed to. 

The PRESIDENT. The question 
is on the adoption of the resolution 
as amended. 

The ayes and nays are demanded, 
— secretary call the roll. 

The vote was taken and the re- 
sult announced; ayes, 21; nays, 2 2, 
— as follows: 



AND NOT VOTING. 
Parker, 
Speice, 
Wakeley, 
Mr. President, — 9. 



Abbott. 

Ballard, 

Boyd, 

Curtis, 

Granger, 

Gray, 

Griggs. 

Hinman, 

Kilburn. 

Lake, 

McCann, 

Campbell, 

Ca.ssell, 

Eaton, 

Estabrook, 

Kenaston 

Kirkpatrick, 

Ley, 

Lyon, 



AYES. 

Manderson, 

Neligh, 

Philpott, 

Price, 

Reynolds, 

Scofield. 

Stewart, 

Thummel, 

Towle, 

Wilson, — 21. 

NAYS. 

Majors, 

Mason,, 

Maxwell, 

Moore 

Parchin, 

Robinson, 

Shaff, 

Sprague, 



Stevenson, 

Thomas, 

Tisdel, 



Vifquain, 
Weaver, 
Woohvorth, — 22. 



ABSENT AND NOT VOTING. 



Gibbs, 

Grenell, 

Hascall, 

Myers, 

Newsom, 



Parker, 

Speice, 

Wakeley, 

Mr. President. — 9. 



Mr. MASON. Mr. President. I' 
have now, one request that I have 
to make; that is that from this time 
forward that no remarks that I shall 
hereafter make will appear in the 
reports. 

Mr. MANDERSON. Mr. Presi- 
dent. I don't think the remarks of 
the gentleman from Otoe (Mr. Ma- 
son) made here belong to him. They 
are the property of this convention^ 
and I hope the convention will not 
agree in the gentleman's request. 

The secretary read the resolution 
offered by the gentleman from Saun-- 
ders (Mr. Kilburn) as follows: 

Resolved. That the special commit- 
tee on the subject of temperance are 
requested to consider the question of ' 
prohibiting the sale of all intoxicat- 
ing liquors to be used as a beverage. 

Provided, that such sale may be 
authorized within the limits of any 
county by a majority vote in the- 
county under such regulations and 
restrictions as may be prescribed by 
general laws. 

Mr. KILBURN. I move the reso- 
lution be referred to the special com- 
mittee on temperance. 

The motion was agreed to. 

The secretary read the resolution- 
offered by the gentleman from Saline- 
(Mr. Vifquain) as follows: 



SCHOOL LANDS AND FUNDS 



203 



Saturday 1 



VIFQUAIN— ESTABROOK 



[July 29 



"Considering the pecuniary pres- 
sure at the present time in our west- 
ern states, and desirous to see our 
people have fresh courage and in- 
creased hopes under our new consti- 
tution it is hereby, 

Resolved. That the committee on 
schedule be hereby instructed to in- 
sert in their article a section for the 
purpose of relieving all the tax pay- 
ers on the annual tax that became de- 
linquent on the first day of May, 1871 
of all the interest and penalties up- 
on same, and to extend the time of 
pavment up to the first of May, 
1S72." 

Mr. VIFQUAIN. Mr. President. I 
move to refer this resolution to the 
committee on schedule. 

The motion was agreed to. 

Mr. ESTABROOK. - Mr. President. 
I think we can finish up the school 
bill this morning. I move that it 
be taken up in convention. 

The motion was agreed to. 

Mr. ESTABROOK. I have pre- 
pared an amendment, which I move 
to make section 12 of this bill, it 
reads as follows: 

"The secretary of state, attorney 
general and commissioner of public 
lands and buildings shall ex-ofhcio 
constitute a board of commissioners 
for the sale, leasing and general 
management of all lands and funds 
set apart for educational purposes, 
and for the investment of school 
funds in such manner as may be pro- 
vided by law." 

The secretary read the first sec- 
tion, as follows: 

Sec. 1. The educational and 
school fund and lands of this state, 
shall be under the control and man- 
agement of the legislature. 

Section one was adopted. 
The secretary read the next sec- 
tion, as follows: 



Sec. 2. All lands, money or other 
property granted or bequeathed, or 
in any manner conveyed to this state 
for educational purposes, shall be 
used and expended in accordance 
with the terms of such grant, bequest 
or conveyance. 

Section two was adopted. 
The secretary read the next sec- 
tion, as follows: 

Sec. 3. The following are hereby 
declared to be perpetual funds for 
common school purposes, of which 
the annual interest or income only 
can be appropriated, to-wit: 

First, such per centum as has been 
or may hereafter be granted by Con- 
gress on the sale of lands in this 
state. 

Second. All moneys arising from 
the sale or leasing of sections num- 
ber sixteen and thirty-six in each 
township of this state, and the lands 
selected, or that may be selected, in 
lieu thereof. 

Third. The proceeds of all lands 
that have been or may hereafter be 
granted to this state where, by the 
terms and conditions of such grant, 
the same are not to be otherwise ap- 
propriated. 

Fourth, The net proceeds of lands 
and other property and effects, that 
may accrue to this state by escheat or 
forifeiture, or from unclaimed divid- 
ends or distributive shares of the es- 
tates of deceased persons. 

Fifth. All moneys, stocks, bonds, 
lands and other property now belong- 
ing to the common school fund. 

Sixth, All other grants, gifts and 
devises that have been or may here- 
after be made to this state, and not 
otherwise appropriated by the terms 
of the grant, gift or devise, the in- 
terest of which said funds, together 
with all rents of the unsold school 
lands, and such other means as the 
legislature may provide, shall be ex- 
clusively applied to the following 
objects, to-wit: 

(1.) To the support and mainten- 
ance of common schools in each 



204 



COMi'LLSORY EDUCATION 



LAKE— MAXWELL 



[July 29 



s( iKKii district in the state, ana the 
purchase of suilable libraries and 
apparatus therefor. 

(2.) Any residue of such funds 
shall bo appropriated to the support 
and maintenance of academies and 
normal schools, and schools of an in- 
termediate grrade between the com- 
mon school and the University, and 
the purchase of suitable libraries and 
apparatus therefor. 

Mr. LAKE. Mr. President. I 
• think there is a mistake in line six- 
teen. In the copy which I have I 
find a correction made by myself as 
follows: The w^ords "arising from," 
in place of the words "of which said.'' 

The PRESIDENT. The question 
is on the insertion of the words. 

The amendment was agreed to. 

The secretary read the next sec- 
tion, as follows: 

Sec. 4. The legislature shall by 
law require that every child of suf- 
ficient mental and physical ability, 
between the ages of eight and sixteen 
years, unless educated by other 
means shall in all cases where prac- 
ticable attend a public school sup- 
ported by the common school fund, 
for some definite length of time each 
year, to be fixed by law, and shall 
establish a school or schools for the 
safe keeping, education, employment 
and reformation of all children under 
the age of sixteen years who for 
want of proper parental care or other 
cause are growing up in mendicacy, 
ignorance, idleness or vice, which 
schools shall constitute a part of the 
system of common schools. 

Mr. MAXWELL. Mr. President. I 
move to strike out section four. I 
do it for the reason that I think this 
should be submitted to the people as 
an independent proposition for their 
adoption or rejection. It provides the 
legislature may require compulsory 
education. While I am in favor of 



having all children of suitable age 
attend school, it appears to be. better 
not to insert a section of this kind 
in our constitution, compelling the 
people to adopt that or reject the 
whole constitution. There is another 
objection to be urged to this section, 
the taking care of children destitute 
of proper parental care. This propo- 
ses an innovation also. It proposes 
to take the school funds and estab- 
lish houses of reformation for chil- 
dren wandering about the streets. I 
am in favor of the object, but think 
it should be submitted as a separate 
proposition. If the people approve 
of it it will still become a part of 
the constitution. It might possibly 
hazard the adoption of this instru- 
ment, and I trust it will be submit- 
ted as an independent proposition. 

Mr. SPRAGUE. Mr. President. .1 
will not discuss the principle con- 
tained in this section. I might say 
I am in favor of it. This matter was 
discussed in the convention at some 
length some time ago, and the pa- 
pers of the state have discussed it 
pretty thoroughly/, and take a po- 
sition against it, hence we see there 
is a strong opposition to it in 
the state. I am opposed to encum- 
bering the constitution with anything 
that will cause anyone to vote 
against the adoption of the entire 
constitution for the purpose of kill- 
ing any clause they may be opposed 
to. 

Mr. LAKE. Mr. President. I 
move to amend the proposition of the 
gentleman from Cass by striking out 
the words "shall require by law" and 
insert the words "may by suitable 
legislation require." Now I hardly 



COMPULSORY EDUCATION 



205 



Saturday] 



LA KE— KIRKP ATRI CK 



[July 29 



think it would be wise to put a | 
clause in the constitution that would ' 
frighten anybody. I hardly think it \ 
would be best to have this imperative I 
requirement upon this section al- 
though I do not see what could be 
done by the legislature if they should 
refuse to enact these laws. We 
might, perhaps, impeach them for 
disobedience of the injunctions of the 
constitution. But I think that would 
hardly be practicable. In order to 
leave the matter entirely in the 
hands of the legislature and show to 
the people of the state what is the 
sense of the convention and to indi- 
cate what perhaps, would be a suit- 
able policy for the state to pursue, 
but still to leave it entirely within 
the control of the people and the leg- 
islature elected by the people. I pro- 
pose this amendment. So that the 
section as amended, will read as 
follows: "The legislature may, by 
suitable legislation, require that 
every child of sufficient mental and 
physical ability, between the ages 
of eight and sixteen years, shall at- 
tend public schools," etc. Certainly 
the people of the state will not be 
frightened into the rejection of the 
constitution because of a provision 
which shall be left entirely to their 
discretion whether it shall be put 
in force or not — its requirements 
carried into effect. Therefore I trust 
that we shall not encumber our con- 
stitution with the submission of so 
many provisions to the people sep- 
arately from the constitution itself. 
Put in a form that shall be unobjec- 
tionable and let it go before the peo- 
ple as a whole. I am not afraid of 
the people objecting to a constitu- 



tion which gives a provision leaving 
the enforcement of anything made to 
the legislature, so that they may con- 
trol and regulate it as they see fit. 

Mr. MAXWELL. I move to strike 
it out and submit it as a separate 
proposition. 

Mr. KIRKPATRICK. The gentle- 
man from Douglas says it is useless 
he thinks, to encumber the consti- 
tution by submitting a separate ar- 
ticle. My opinion is that it will not 
encumber the constitution at all, and 
I think an objectionable provision 
may. If this provision shall be 
found to be objectionable they will 
not adopt it. I approve of the mo- 
tion of my colleague (Mr. Maxwell) 
to strike it out. I desire to enter 
my protest against inserting such a 
provision as section four in the con- 
stitution. Now, sir, I think the free 
school system of this state will be 
an honor and a glory to her. And 
this school system is superior to that 
of any other country in the world. I 
don't except any part of Europe, not 
even Prussia. I believe, sir, that 
every child of suitable age ought to 
be educated, but there are other 
provisions which I think are even 
more objectionable. That is the un- 
defined power, but after all the im- 
plied power contained in the last 
portion of the section. The first por- 
tion is plain, direct and unambigu- 
ous, and means, doubtless, just what 
it says. It is investing the legisla- 
ture with power and not only with 
power, but making it mandatory on 
the legislature that they shall actu- 
ally exercise this power unless the 
children are educated by other 
means. But the latter part of this 



*JlHi 



COMPULSORY EDUCATION 



Saturday] 



KIRKPATRICK 



[July 30 



seoiion is an ainbiguoua provis- 
ion. It proposes the commission 
of a dangerous power to some agent 
of the laws of this state; and I 
think it is very objectionable. It 
goes on to say. "and may establish 
schools for the safe keeping, educa- 
tion and employment and reforma- 
tion of all children of such age who 
are destitute of proper paternal care, 
etc." Now, sir, we have had long 
dissertations upon this particular pro- 
vision of the section. Gentlemen 
have argued that it is the duty of 
the state to take care of the children; 
but I dissent from the argument that 
the children are the property of the 
state. I am not willing to turn the 
hand of progress back and go to the 
system of despotic government, and 
adopt the rule of ancient times. 
But, sir, it is a dangerous power for 
another reason. Gentlemen are not 
agreed upon as to what is "proper 
parental care." One gentleman ar- 
gued it was the duty of the state to 
see that every child had "proper pa- 
rental care;" ascertain what is pro- 
per parental care. And it is said 
here that the state must really pro- 
vide proper food or clothing; and it 
is bound to make such provision. 
Now, gentlemen, this involves the ex- 
ercising of a power you never can 
carry out in the United States. Who 
is to say what is "proper parental 
care?" The parent is responsible. 
But I admit there is dernier resort 
— that is in the state. The state is 
bound, most certainly^ to afford full 
sustenance for poor children. I am 
very sure that the incorporation of 
such a section will endanger the 
adoption of the constitution. The 



gentleman's proposition is fair and 
right. It will incur no extra expense 
to submit this separately. I wish to 
defer for a moment. The indication 
of the public feeling on this question 
has developed in the newspaper 
press. The Cass Democrat, in an 
editorial a few days ago, took strong 
exceptions to this section four, and 
said it would endanger the constitu- 
tion. The other paper published in 
our town also objected to the pro- 
position. I claim the privilege of 
reading an extract from the first 
named paper, which I mainly adopt 
After adverting to this section four, 
giving the items of it, the editor goes 
on to say: 

"We have no desire to discuss this 
question — in fact, we hardly believe 
it admits of discussion — but we do 
desire to enter our protest against 
placing any such clause as this in the 
body of the constitution as it is to be 
submitted to the people, for the sim- 
ple reason that it would endanger 
the entire document. If any one 
wishes to have a fair expression of the 
views of the people upon this ques- 
tion let the proposition be submitted 
separately. For ourself, we can 
say that we are opposed to the 
clause, because we believe it to be 
in direct opposition to the principles 
of republican government. While 
we think no one will question the 
fact that education is the great civi- 
lizer of the world, and is the founda- 
tion stone of republican institutions 
and self government, yet we have no 
more right to force education than 
we have to force religion, which is 
strictly prohibited by the constitu^ 
tion of the United States. In the in- 



COMPULSORY EDUCATION 



207 



Saturday] 



ESTABROOK 



[July 29 



telligence of the masses lies the safe- 
ty of the nation; but if we attempt 
to force that intelligence the innate 
principle of liberty itself rebels 
against it and thereby we kill the 
root by endeavoring to increase the 
growth of the branches. Let our 
constitution makers and our law 
makers strengthen the branches of 
free government by cultivating the 
root, which is a desire for knowledge 
and truth. Render every aid possi- 
ble to the system of education, ana 
we will guarantee that the parents 
of the country, who as fully appreci- 
ate these benefits, as does any mem- 
ber, of the constitution, will not be 
backward in accepting them, and the 
men and women of the country will 
grow in knowledge li^cauHe they love 
knowledge, and not because it is at- 
tempted to be forced upon them." 

Now, sir I simply desire to have this 
published and submitted. I do think 
it will be dangerous to embody it in 
the constitution. There are a few 
gentlemen now and then who assume 
to manufacture public opinion. The 
local papers generally advocate the 
popular course unless some influences 
are brought to bear. I hold, sir, in 
this government, that the proverb, 
vox populi, vox dei is true. 

Mr. ESTABROOK. Mr. President. 
I sent a copy of this report to every 
paper I could think of, inviting com- 
ments on it, and until some consider- 
able time thereafter I heard no word 
from these editors but what was 
highly commendatory. Subsequent- 
ly these papers have not said a single 
word against it upon its merits. One 
of these papers is the Plattsmouth 
Herald, one is the paper here (the 



Journal) and the third is the Oma- 
ha Herald, with which I have had 
some difficulty about another mat- 
ter and the editor seemed to think 
I thought this proposition the gem of 
the article, and opposed it of course, 
because I introduced it. Now no- 
body claim^ that these gentlemen 
will be bought and sold like beef, 
but sir, is it not true that the state 
has some kind of interest, or proprie- 
torship in them? How is it that a 
state can enact laws by which its 
people are drafted in the military 
service of the country, unless the 
state has some sort of interest in 
them, and as a reciprocal duty to 
them, the state is bound to protect 
jthem wherever they go. One of the 
proudest claims of our country dur- 
ing the war was the intelligence of 
its soldiers. That is one difference 
between this country and the old 
countries. Why sir, there were tons 
and tons of mail matter coming from 
our common soldiers every week, 
and some of the best letters in the 
papers came from the lowest soldiers 
in the ranks of the army. Now do you 
pretend to saj' that the state has no 
interest (In the children who are 
lounging about the country. Why, 
sir, it has been said here that this 
was regarded as the crowning glory 
of the labors of this convention. It 
is not proposed to incorporate any- 
thing that shall be aggressJTe. It 
simply proposes to take the little 
waifs that run about the streets with 
no one to care for them, and have 
the state pro\ide for them. There 
has been some discussion about what 
shall be "parental authority." Do 
you remember what the papers, a 



•20S 



COMrULSOKY EDUCATION 



Saturday] 



ES T A BROOK— ROBIN SON 



[July 29 



few days ago, had to say about an ] 
affair which occurred in lUinios a 
short time ago it was shown that 
a little fellow, ten years old, was 
sent to the field to work. He said 
almost with his dying breath, to his 
little sister that he did not know 
what his father was whipping him 
for because he did all the work he 
could." His father not only whip- 
ped him in the field but whipped 
him all the way home, through the 
out buildings and into the presence 
of his mother who had just arisen 
from Iter hed of accouchement and 
then struck him a last blow, which 
caused him to shut his little eyes to 
the light of this world. The neigh- 
bors gathered together and hung the 
father. Now, I propose to say that 
there shall be some power in this 
state which shall take the little crea- 
tures, who come into this world 
through no will of their own from 
the power of these such as I have de- 
scribed. How often does the heart 
bleed to hear the cries of these little 
ones who are under the control of 
drunken parents. Now I don't ex- 
pect to be educated any more, except 
what I may get from day to day by 
absorption and while I have no chil- 
dren who require any other parental 
care than they now have, yet I say 
thousands and thousands of children 
are running around our streets who 
do need this provision. 

Mr. ROBINSON. Mr. President. I 
am not in favor of this section as it 
now stands but am in favor of strik- 
ing it out. I will now state a pro- 
position which may sound at this day 
paradoxical. It is this, that in those 
countries where the system of com- 



pulsory education is adopted there is 
less learning than in those countries 
where no such system is in vogue. 
Among the lower classes in Ger- 
many whei'e this system is followed, 
there is five times more ignorance 
than in this country where we have 
our free common school without com- 
pulsory education or any such laws 
as this. There are more ignorant 
people, more people with very lit- 
tle education in that country where 
there is so much learning and where 
laws have been passed to compel 
education than there is in this coun- 
try where there are no such laws. I 
do not know how that can be ex- 
plained but it is a fact universally 
true. There they have the most 
learned men without doubt, that can 
be found in any country, the greatest 
philosophers, the greatest poets, the 
greatest historians and the greatest 
mathmeticians, but they stand away 
up above the people, they talk in a 
language that is almost a dead lan- 
guage to the people. What is the 
explanation? They have the com- 
pulsory system. Now if this system 
works well why is it that learning is 
not generally diffused in that coun- 
try? In this country no such laws 
have been adopted, and yet there is 
a public sentiment prevailing which 
compels by a stronger force than any 
statute, every man to send his chil- 
dren to school. It is said we find 
in our midst a large class of igno- 
rant people. Is that so? It is en- 
tirely to the contrary; all the chil- 
dren have some education, and to a 
greater degree than can be found in 
any other country. It is not from 
these laws, from any laws to compel 
the attendance of children at schools. 



COMPULSORY EDUCA.TION 



209 



Saturday] 



LAKE-MASON— NELIGH 



[July 2» 



but from that public sentiment al- 
most undefinable, which compels 
every man to submit to its force. I 
would much rather depend upon that 
I believe, to take the average right 
through this country, all the states, 
eastern and western, that there is 
more learning, taking the aggregate, 
while we have not so many learned 
men as they have in other countries, 
I undertake to say, in the aggregate, 
there is more knowledge among the 
people, among what is called the 
"rag-tag," than is to be found any- 
where else. If gentlemen can show 
any necessity, that any evil is to be 
remedied by the adoption of any such 
law, I would not oppose it. It may 
be it would do no harm, but I am in- 
clined to think its moral effects 
would be bad, that it would be im- 
possible and impracticable for the 
Legislature to adopt anything like a 
high standard of education. They 
must put it low so that the people 
without means would not be deprived 
of the services of their children for 
a great length of time. I undertake 
to say the moral effect of any such 
clause, putting the general standard 
of education down so low would be 
bad. Every man would think when 
he had complied with this law he 
was done. Every man is desirous of 
giving his children at least an aver- 
age education. I am entirely oppos- 
ed to any such provision, I think it 
is useless. I believe if children have 
parents who are able to bestow up- 
on them proper parental care, that 
they would give them a fair average 
common education. 

Mr. LAKE. Mr. President. For 
the purpose of relieving the conven- 

14 



tion of the difficulty it has got into, 
I withdraw the amendment. 

Mr. MASON. (Mr. Mason's speech 
given to him for correction and not 
returned — Reporter. ) 

Mr. NELIGH. Mr. President. I 
desire to reply to the gentleman 
from Lancaster (Mr. Robinson.) 
He said that, in those countries 
where they have compulsory educa- 
tion, the lower classes, as a rule, do 
not have proper education. I have 
had some experience with that class 
of people in a county that is settled 
up, to a great extent, by foreign- 
born settlers. On my return home 
on this last trip I made it mj^ 
duty to examine into thi.s sub- 
ject of compulsory education and 
I find that universally the (ier- 
man population are in favor of it, 
and further in all my transactions 
with these people I never found one 
of them that could not write his 
name to a legal paper, but I have 
found -many Americans that could 
not write their names and I have a 
number of papers in my possession 
and looking over them I find prob- 
ably ten crosses signed, and not one 
of them signed by a German; and I 
further state that I have been 
connected with a board of school 
officers from the organization of 
the county of Cuming, and my ex- 
perience teaches me that it is nec- 
essary to compel a portion of the 
population of this county to send 
their children to school. I know that 
in the last two years that I had to 
go to a teacher and get him to take 
back children that he had expelled 
from school — boys fifteen and six- 
teen years of age, who could not read 



210 



PRAYER— ROLL CALL 



Monday] 



MANDERSON-GRAY-KIRKPATRICK 



[July 31 



or write. I believe the gentleman 
from Otoe (Mr. Mason) in his argu- 
ment thought if you compelled him 
to pay taxes for the education of the 
{•hikirfii of the state, the state had a 
right to compel these children to 
go to school. 1 claim that we have 
as good a school in our town as any 
town in the state, but yet I know 
there are children who run about our 
streets and do nothing. 

Mr. ESTABROOK. Will not the 
gentleman from Cuming (Mr. Ne- 
ligh) give way until Monday at 2 
o'clock at which time the gentleman 
can have the floor. 

Mr. NELIGH. I am willing. 

Mr. ROBINSON. Mr. President. I 
think we have an order for that very 
hour. 

The PRESIDENT. It is not out 
of order to set two matters for the 
same hour. 

Adjournment. 

Mr. MANDERSON. Mr. Presi- 
dent. I move we adjourn until two 
o'clock Monday. 

The ayes and nays being demand- 
ed, the secretary proceeded to call 
the roll. 

The President announced the re- 
sult — ayes, 23; nays, 22, — as fol- 
lows: 



Boyd, 

Campbell, 

Cassell, 

Eaton, 

Estabrook, 

Granger, 

Hascall. 

Konaston, 

I>ako. 



AYES. 
McCann, 
Mason, 
Manderson, 
Maxwell, 
Moore, 
Parchin, 
Philpott, 
Robinson, 
Scofield, 



Tisdel, 
Towle, 
Woolworth, 



Wilson, 

Mr. President, — 2 3. 



NAYS. 



Abbott, Majors, 

Ballard, Neligh, 

Curtis, Price, 

Gibbs, Reynolds, 

Gray, Shaff. 

Griggs, Sprague, 

Hlnman, Stevenson, 

Kllburn, Stewart, 

Kirkpatrick, Thummel, 

Ley, Vifquain, 

Lyon, Weaver, — 22. 

ABSENT AND NOT VOTING. 
Grenell, Speice, 

Myers, Thomas, 

Newsom. Wakeley, 

Parker, 

So the motion was agreed to, and 
the convention (at eleven o'clock 
and fifty-five minutes) adjourned. 



THIRTY-FIRST DAY. 

Monday, July 31st, 1871. 
The convention met at two o'clock 
and was called to order by the presi- 
dent. . 

Prayer. 

Prayer was offered by the chap- 
lain as follows: 

Almighty God, thanks be unto 
Thy great name for the peace of his 
day. Unto Thee we look for the wel- 
fare and happiness of our country. 
May we have wise laws, and may we 
respect Thee with intelligence, with 
diligence and honor. May our rulers 
guide the state with right minds and 
cheerful hearts. May the people ac- 
cept the high duties of our Ameri- 
can citizenship in the sight of God 
and of man. Amen. 

Reading of the Journal. 

The journal of the previous day 
was read and approved. 



THE JUDICIARY ARTICLE 



211 



Monday' 



WAKEL.EY-HASC ALL-GRAY 



[July 31 



Mr. GRAY. Mr . President. I 
move that the judiciary article be 
now taken up in convention. 

Mr. KIRKPATRICK. I would be 
glad if this report could be laid over 
for a little while as some of the 
leading lawyers are absent. 

Mr. WAKELEY. I think. Mr. 
President, that it is altogether 
wrong to proceed with this judicial 
article at this time. The chairman 
is absent, many of the members of 
the judiciary committee are absent 
and it is altogether contrary to the 
practice we have observed through- 
out this session, to take up these 
reports in the absence of the chair- 
man, or any considerable number of 
the members of the committee. I 
desire there should be a full house 
when this subject is considered. It 
is one of the most important articles 
in the whole of the constitution, 
one in which I take more interest 
than I do any other, and I see no 
need of any undue haste. I do not 
see why the gentleman from Dodge 
(Mr. Gray) should press it at this 
particular time, this article is one 
that behooves us to go a little slow 
upon, and I move that the consider- 
ation be postponed until tomorrow 
at two o'clock. 

Mr. HASCALL. I heard the chair- 
man of the committee express him- 
self that he was satisfied that the ar- 
ticle should be engrossed. I think it 
has been duly considered in all its 
bearings. We have gone through it 
section by section in committee of 
the whole and in convention, after 
doing that there were new sections 



offered and all was said that could 
be said. If we expect to finish our 
work in a week or ten days, we must 
proceed to do something. 

Mr. TOWLE. Mr. President. I 
do know that Judge Lake is anxious 
to be present at any and all times 
when this judiciary article may be 
under consideration, and it is a fact 
patent to everybody that Judge 
Lake has scarcely ever been absent 
from his post of duty, and as he is 
not here today we could pass over 
this article until he is present. I do 
hope that this motion to take up 
this matter will not prevail. 

Mr. KIRKPATRICK. Mr. Presi- 
dent. I hope this will be postponed, 
it is one of the most important arti- 
cles in the constitution. I know that 
Judge Mason desires to be here 
when it is taken up. He cannot come 
today on account of sickness in his 
family. It is nothing but courtesy to 
these eminent men to lay this mat- 
ter over until tomorrow. I hold that 
these important matters ought to be 
left open to the consideration of 
this convention as long as possible. 

Mr. GRAY. Mr. President. What 
are the facts in this matter? The 
judiciary article was postponed to 
this hour, it is a special order, 
every gentleman spoken of here 
who is now absent knows the time it 
will come up for action. If they desir- 
ed to be here to offer more amend- 
ments, why are they not here? What 
is the use of setting a special order, 
if not to notify the parties interested 
so that they might be here? If this 
had not been made a special order, 
there might be some reason for post- 



I'l; 



THE jrOlClARY ARTICLE 



Monday ] 



VVAKELEY— HASCALL, 



[July 31 



ponlng action on it. I do not de- 
sire to take advantage of any one, 
nor will I do so willingly. I do hope 
that the motion to postpone will not 
prevail. I hope we will be able to 
finish up this business just as though 
every gentleman was here. Is the 
ability of this convention all con- 
fined to one or two gentlemen? I 
never thought so myself. Let us dis- 
pose of this and go on with our 
work as though every member was 
here. It is not our fault they are 
not. 

Mr. WAKELEY. Mr. President. 
It is somewhat difficult to account for 
the exceeding interest of gentlemen 
to press this article to a vote. Has 
the gentleman from Dodge (Mr. 
Gray) any more interest in this 
amendment than the gentleman from 
Otoe (Mr. Mason) or my colleague 
(Mr. Manderson) who is a member 
of that committee? Has he any 
more interest in it than I? And 
why is my honorable colleague (Mr. 
Hascall) who has just spoken and 
who is a member of the bar; or not a 
member but a practicing lawyer, so 
an.\ious to proceed with this article? 
Gentleman say arguments are ex- 
hausted on this article. I desire to 
say that I wish to offer an important 
amendment to this Judiciary Article; 
but I am not prepared to do it at this 
moment. If this is pressed to a vote, 
I think I can find a way of bringing 
this before the convention. Mr. 
President, I say to you and the con- 
vention, in all seriousness, that it 
Is well not to go too fast with this 
Judiciary article. I say, sir, that 
with this ponderous judicial ma- 
chine, as contemplated in the arti- 



cle now, there will be another tribu- 
nal interested in this, and that will 
be heard on it. I desire, above all 
things, to have a judiciary article 
presented to the people of this state, 
that will be adopted. I think it is 
wanted at this time. I do not want 
an article presented which will meet 
with opposition of the judicial power 
of this state; which will appear to 
the people to be expensive. I do 
not see the object of putting this 
thing through under whip and spur, 
or why certain gentlemen should be- 
tray all this eagerness and anxiety to 
put this to a vote and place it be- 
yond the power of amendment. I do 
not think we are doing justice to 
the people, or ourselves to crowd 
this matter through until all gentle- 
men have had an opportunity to be 
heard, and submit to this convention 
such amendments as they see fit. 
After deliberations on this article 
were closed at eleven o'clock at 
night several gentlemen at that time 
said they wished to make fuller ex- 
amination on it before it was passed. 
I know that my reflections have lead 
me to the conclusion that a very im- 
portant change should be made be- 
fore this article is submitted to the 
people; and I will be prepared for 
it at two o'clock tomorrow, and 
would desire that it be postponed un- 
til all others who are interested can 
be here. 

Mr. HASCALL. I would ask 
whether the gentleman who has just 
spoken has any more interest in this 
article than the gentleman from 
Dodge, or any other member of this 
convention? 



THE JUDICIARY ARTICLE 



213 



Monday] 



STEWART— STEVENSON 



[July 31 



Mr. WAKELEY. I have not 
claimed any more, but I have claimed 
that gentlemen are away from the 
convention who are as much interest- 
ed as my friend. 

Mr. HASCALL. This putting on 
so many airs, and these professions 
are not in good faith. Not because 
the gentleman has any superior points 
to urge. This report is a good one 
and able in every sense of the word. 
It was fully considered in the com- 
mittee of the whole, section by sec- 
tion, and after being satisfactorily 
fixed in the comniittee, was reported 
to the convention and acted on there, 
and parties who made certain opposi- 
tion in the committee of the whole 
could not, at that time, get it suited 
to their particular notions, offered 
them in the convention. As I re- 
marked before, the usual way is to 
offer your propositions and abide by 
the vote. Propositions were offered 
and rejected by the committee, they 
were rediscussed, and out of order 
And now the gentleman is referring 
to the same thing again. We are 
to go on and do right, without par- 
ties saying there is a certain tribunal 
to take the matter in hand. I con- 
sider there is a tribunal — the peo- 
ple — and if we follow the dictates 
of our conscience and do right, that 
tribunal will endorse us. There is 
no fear in that tribunal; only some 
fix up schemes and things not proper, 
and then there is reason to believe 
they will refuse to endorse. The 
gentleman says "why this undue 
haste?" There has not been un- 
due haste. Rather ask "why this 
unusual delay?" When, according to 
the rule of this convention, and it 



was to be delayed until to day at 
two o'clock; and made a special or- 
der, and now it comes up and, by 
our rules, would have come up at 
a previous time, but for our action 
in delaying it. What is the object 
in asking for a delay, and the con- 
vention drags its slow length along? 
The tribunal the gentleman referred 
to never will get a chance to ex- 
press itself if we proceed in this 
manner much longer. I do not know 
what reason the gentleman had to 
say, in the first instance, that I was 
a member of the bar, and then cor- 
rect himself and say I was a lawyer? 
I believe I am as old a lawyer almost 
as the gentleman himself. I have 
practiced eighteen years only. Per- 
haps I make no profession, and while 
I am not a practicing member of 
the bar, I may probably know as 
much about it as gentlemen who 
have been practicing for only two or 
three years. K the gentleman has 
propositions let Aim make them 
now. 

Mr. STEWART. I am not a law- 
yer, but I have some interest in this 
article, and am in favor of its post- 
ponement until tomorrow. I remem- 
ber that on Friday night the gentle- 
man from Douglas (Mr. Hascall) 
proposed a new section in regard to 
the new districts; he was aware 
many members were opposed to it, 
but moved the adoption of his 
amendment and then moved the pre- 
vious question, and cut off all de- 
bate. That is something which has 
been unheard of in this convention. 
For these reasons I wish the question 
to be postponed. As it stands now. 



214 



THE JUDICIARY ARTICLE 



Monday) 



THOMAS-SCHOFIELD-McCANN 



[July 31 



I shall vote against its being en- 
grossed. I am willing there should 
be four districts, and I want them 
apportioned. 

Mr. STEVENSON. — I hope this 
matter will be postponed. As I un- 
derstand it there are several gentle- 
men absent today who cannot prob- 
ably get here, and are deeply inte- 
rested in the matter, as much so as 
any member here, and I am desirous 
before we adopt anything which is 
to become a part of our organic law, 
that every gentleman shall have the 
right to express himself. I do not 
believe anything should be rushed 
through, as some matters have 
within the past few days. I can 
read the sentiments of the parties 
who are trying to rush this through 
now, just as well as if they were 
written in large italics on the wall. 
I want a full expression. Judge 
Lake, who is chairman of the com- 
mittee reporting this article, does not 
wish to see the instrument engrossed 
as it is, and we owe him the courtesy 
to wait. I have not heard members 
of the judiciary committee express 
themselves particularly upon it. As 
it has been changed in many respects 
I am desirous of seeing as many 
members present as can be before 
we put it into the constitution. 

Mr. THOMAS. Mr. President. I 
hope this article will be postponed. 
It is one of the most important arti- 
cles in the constitution. Now If I 
thoiight that the postponement of 
this article V(Ould retard the busi- 
ness of this convention, 1 perhaps, 
would be opposed to the postpone- 
ment but It will not retard it at all. 
I believe there was another article 



set for this hour, why not go on and 
consider that. I know of nothing 
more important in the constitutioa 
than the judiciary article, and I 
thing it should be fully discussed. 

Mr. HASCALL. Mr. President. I 
expressed myself to the chairman of 
this committee. Judge Lake, and he 
said he was satisfied with the report 
as it now stands. 

Mr. STEVENSON. Mr. President. 
If I am not mistaken Judge Lake 
was in favor of the postponement. 

Mr. SCOFIELD. Mr. President. 
At the time of the postponement of 
this article, a previous motion had 
been made by Judge Lake to have 
it engrossed, but out of deference to 
some other gentlemen, he withdrew 
his motion to have the article en- 
grossed. I know of my own knowl- 
edge, that Judge Lake is perfectly 
satisfied with the article as it is. I 
hope it will be engrossed and so far 
disposed of. 

The PRESIDENT. The history of 
this matter is this: Judge Lake made 
a motion to have the article engross- 
ed, but General Manderson wished 
to have it postponed and Judge Lake 
consented. 

Mr. McCANN. Mr. President. The 
statement made by my colleague 
(Mr. Scofield) agrees with my recol- 
lection of the matter. I believe it 
would be the duty of this convention 
to postpone the consideration of this 
article until tomorrow if we were 
satisfied that the chairman of the 
committee wished it; but as this 
question occupied a large share of 
the attention of this convention for 
the last week and was so fully dis- 



THE JUDICIARY ARTICLE 



215 



Monday] 



KIRKPA TRICK-MAX WELL 



[July 31 



cussed, I see no reason for postpon- 
ing further. We have already occu- 
pied a long time in the consideration 
of the article and to open it up at 
this convention, and discuss it for 
one, two or three days more, I don't 
think we can well afford it. I would 
be glad if no other amendments are 
to be offered, that the article be 
immediately engrossed. It may be, 
Mr. President, that the article, as it 
now stands, may not be altogether 
satisfactory to me. I would be glad 
if the article be now considered, and 
that my friend from Douglas (Mr. 
Wakeley) offer today, his amend- 
ment. I feel, Mr. President, that it 
is time we were dispatching business 
and get off one article after another, 
as speedily as possible. I intimated 
Saturday that the people of the state 
are looking upon our proceedings 
with a great deal of interest and even 
impatience. I, sir, am perusaded 
that this is satisfactory, and I desire 
to satisfy the greatest possible num- 
ber of the people of our state. I 
wish we may consider this article at 
once, and dispose of it and proceed 
with other business. 

Mr. KIRKPATRICK. Mr. Presi- 
dent. I merely wish to say that I 
am in favor 

Mr. ESTABROOK. Mr. President. 
I rise to a point of order. The gen- 
tleman from Cass (Mr. Kirkpatrick) 
has exhausted his privileges on this 
subject. 

Mr. KIRKPATRICK. Mr. Presi- 
dent. I have spoken but once, and I 
don't wish to discuss this question I 
merely wish to say that this conven- 
tion cannot take up the section. It 



is fixed and discussed, and the ac- 
tion of the convention is a finality 
upon that point. 

Mr. MAXWELL. Mr. President. I 
would extend courtesy to every mem- 
ber of this convention, and did I 
think that any member who is absent 
wished to offer any amendment to 
this article I would favor its post- 
ponement. Now this bill has 
been written out three, several 
times by the committee and re- 
vised carefully; the greater part 
of three days has been spent 
upon the bill in the house, and I 
think not less than two weeks al- 
together has been spent upon the 
bill. It is satisfactory to a large ma- 
jority of the members of the conven- 
tion. Now, Mr. President, I am anx- 
ious to get through — I am anxious to 
get this constitution framed and go 
home and attend to my business, and 
I know that there are others of the 
same opinion. How can we get 
through with this when it takes 
nearly an hour to discuss the ques- 
tion as to whether it shall be taken 
up. Let us dispose of this business. 
Let us dispatch it. Now sir, I 
wish it to be understood that I fear 
no threats from any quarter. I pro- 
pose to do my duty and take the 
chances; and when gentlemen make 
threats as to "another tribunal," I 
wish it to be understood that I am 
not influenced by it. 

Mr. WAKELEY. Mr. President. I 
have a few words to say 

Mr. MAXWELL. Mr. President. I 
rise to a point of order; the gentle- 
man has spoken twice upon this pro- 
position. 



iMti 



THE JUDK'IARY ARTICLE 



Monduy i 



W AKELEY-ESTA BROOK-MAJORS 



[July 31 



Mr. WAKELEY. I have spoken 
but once, and as I am the mover of 
the proposition, I have a right to 
speak again. Mr. President, there is 
no need of trepidation. I have said 
that the people of this state will pass 
upon our work, and I desire to give 
Ihoni work that they will approve. 
If this is threatening, then I have 
threatened — otherwise, I have not. 
If I believe that they will not approve 
of a certain system, I have a right 
to think so, and say so. It is said 
that the chairman of this committee 
is satisfied with this; suppose he is, 
is it of any more importance that the 
chairman of the committee should 
be satisfied than that any other 
member of the convention should be 
satisfied. Judge Mason and General 
Manderson both said they were not 
satisfied with the article, and wished 
to have the consideration of it post- 
poned. I have said that I should 
present an amendment, but I am not 
ready to present it now. I wish as 
full an attendance as can be. The 
gentleman across the way (Mr. Has- 
call) says he knows my motives in 
offering my amendment. If he 
knows what my motives are in this 
case, he knows more about that sub- 
ject than he does about anything 
else. (Laughter.) 

Mr. ESTABROOK. Mr. President. 
The question whether Judge Lake is 
satisfied with this or not don't weigh 
at all with me. It is a little out of 
the ordinary rule to take up a re- 
port in the absence of the chairman. 
I know that Judge Lake is not satis- 
fled and I would not like to hurry it 
— another thing, I don't think the 
poople will be suited with this arti- 



cle. It is more far-reaching than we 
may at first think in the change 
that will be effected with it as it now 
stands, and it may not be so easy 
to take the people from three judges 
whose total salaries amount to only 
$G,000 and the most of that paid 
from commencement fees, to eight 
judges with an aggregate salary of 
$23,000 and no commencement fees. 
As I understand it, Mr. President, 
the agony has been over how many 
judges there should be. It was urg- 
ed that they should be increased so 
that every little town, every little 
prairie dog hole should be visited at 
least once a year and have their 
hearts cheered by the presence of 
one of these honorables. Now let 
me make this one suggestion by way 
of a hint; can anybody get up here 
and tell me why we need a separate 
supreme court? In all the lately or- 
ganized states the judiciary has been 
the same as ours has — what they call 
the nisi-prius system, that is that 
the several district judges of the 
state should meet together at such 
time as was necessary and pass upon 
such questions as are submitted to 
them as the supreme court of the 
state and I believe their judgments 
are generally as good as any. We 
can still have the five judges with 
this system and we may empower 
the legislature to create a supreme 
court in five or ten years if it is 
necessary. In this way I think we 
might diminish this thing of expense 
a little. Now this is only a sugges- 
tion and if somebody will prepare 
something like this I don't think 
it will run across anybody's pet 
scheme. 



THE JUDICIARY ARTICLE 



217 



Monday] 



SPRAGUE— STEVENSON-NELIGH 



[July 31 



Mr. MAJORS. Mr. President. I 
hope the postponement will carry 
from the fact that the gentleman 
from Lancaster who is not present 
now, gave notice that he wished to 
move a reconsideration in one part 
of this matter. 

Mr. SPRAGUE. Mr. President. It 
seems to me there is a strange incon- 
sistency in the action of these men 
today, and their action before. If I 
understand they fear the tribunal be- 
fore whom this constitution is to 
come for adoption, and that too on 
account of expense. Now, sir, the 
friends of the five district move, 
were in favor, and did by their votes 
cut down the salaries by which they 
saved the people — this dear people, 
about $7,000 more than if they had 
allowed the salaries to remain as re- 
ported from the committee of the 
whole. 

Mr. STEVENSON. Allow me to 
correct you, you are $1,500 out of 
the way. 

Mr. SPRAGUE. Five hundred 
dollars out of the way, let me see if 
I am. These men were in favor of 
raising the salary of the supreme 
judges up to $4,000, while we favor- 
ed $3,000 and we compromised on 
$3,500, saving $1,500 there. They 
wanted to give $3,500 to each of 
the district judges and the friends of 
the five districts did cut it down to 
$2,500 thus saving $5,000 more. I 
am in favor of getting through with 
our work that we may go home, and 
go before this tribunal and let the 
them pass upon it. If the people see 
fit to differ with me it is their privi- 
lege, but I shall not have a single re- 
morse of conscience for what I have 



said and done here. I fear the dis- 
pleasure of this tribunal for continu- 
ing this convention into undue 
length. 

Now, sir, the chairman of this 
committee stated in my presence he 
had no more amendments he wished 
to offer, he himself having made the 
motion that it be engrossed. I hope 
this convention will now go on and 
dispose of it so that we may go 
home. 

The PRESIDENT. The question 
is on postponing until tomorrow at 
two o'clock. 

The ayes and nays were demanded. 

The secretary called the roll and 
the president announced the result: 
ayes, 22, nays, 19, as follows: 

YEAS. 

Campbell, Robinson, 

Curtis, Shaff, 

Estabrook, Stevenson, 

Griggs, Stewart, 

Kenaston, Thomas, 

Kirkpatrick, Tisdel, 

Lyon, Towle, 

Majors, Vifquain, 

Neligh, Wakeley, 

Parchin, Weaver, 

Reynolds, Wilson, — 2 2. 



Abbott. 

Ballard, 

Cassell, 

Gibbs, 

Granger, 

Gray, 

Hascall, 

Hinnian, 

Kilburn, 

ABSENT 
Boyd, 
Eaton, 
Grenell, 
Lake, 
Mason, 
Manderscn, 



NAYS. 
Ley, 

McCann, 
Maxwell, 
Moore, 
Phil pott. 
Price, 
Scofield, 
Speice, 
Thumniel.- 



-19. 



AND NOT VOTING. 
Myers, 
Newsom, 
Parker, 
Woolworth, 
Mr. President, — 11. 



L>1S 



(^OMPULSORV EDUCATION 



Monday] 



NEL.IGH 



[July 31! 



The PRESIDENT. The gentlemaii 
from Pawnee (Mr. Stewart) will 
please take the chair. 

The PRESIDENT, pro tempore. 
The school bill is before the conven- 
tion, the gentleman from Cuming 
(Mr. Neligh.) has the floor. 

Mr. NELIGH. Mr. President. We 
have a liberal donation of lands 
from the general government of 
nearly 3,000,000 of acres to be used 
for the educational interests of the 
state of Nebraska, to educate her 
youth, and not only those that wish, 
but all her children, that none 
should grow up in ignorance and 
vice: that in future generations the 
government may be more powerful 
by the intelligence of its citizens. I 
claim it is the duty of the state to 
provide by law for the best use of 
this liberal donation of the general 
government, and I cannot see how 
we can carry out the intentions of 
the government to a better advant- 
age than in educating every child 
within the boundaries of the state of 
Nebraska, than by compelling ev- 
ery child of suitable age to attend 
the common school. It is claimed 
that compulsory education will be 
obnoxious to the people of Nebras- 
ka. I cannot see that this section 
will be obnoxious as it is claimed 
by some gentlemen of this conven- 
tion: as most of the people are in 
favor of education of its children, 
and there is only a small portion of 
the inhabitants of this state that 
this section is intended to reach; 
only those that let their children 
grow up in ignorance and vice, and 
tliose having orphans in their care. 
Is there a gentleman on the floor 



that is not in favor of these unfortu- 
nate children of our land receiving 
a proper education? And this is 
only the intention of this section, it 
is not intended for those parents that 
educate their children at home or at 
private schools. It is intended only 
for those that have not the proper 
care. I claim that the authoritr 
that compels you and I to pay out 
money for the education of the chil- 
dren of our land, is not only to edu- 
cate those that are willing to avail 
themselves, but I claim the authority 
that reaches in my pocket and takes 
my money for the purpose, and the 
pretentions it makes for the edu- 
cation of its children, shall make 
every child under the control of that 
law attend and receive the benefits 
of the conimor school education. I 
am not willing that the state shall 
only educate those children that aro 
willing to avail themselves of the 
benefits of that money that is taken 
from me for the purpose of educa- 
tion, but I demand that that authori- 
ty which exercises the right to take 
the money from you and I has also 
the right to compel the children of 
this state who have not the proper 
parental care to attend the school 
that it provides for the children 
of the state, and I shall demand here 
that the state must and shall provide 
for a universal education of its chil- 
dren, and especially those unfortu- 
nate ones that have parents more 
beastly than human, and the unfor- 
tunate orphans of our state. 

Sonie gentleman said that this 
section will endanger the constitu- 
tion, if we retain it and move to 
strike it out. I disagree with hina 



COMPULSORY EDUCATION 



219 



Monday] 



NELIGH 



[July 31 



and I am in favor of its adoption as it 
now stands. 

I am glad to hear some gentle- 
men speak against oppressive and 
tyrranical laws, for I hate them, and 
I love liberty. But, sir, there are 
many considerations interwoven with 
this question, the perpetuity of our 
institutions is connected with the 
educational interest of the state, and 
of the nation; such has been the 
views of the best men of this country 
and of the present age. Some mem- 
bers have spoken in the committee 
of the whole when this section was 
under consideration, of the rights 
of parents. Now, Mr. President, if 
parents have righta. children also 
have rights. I know that sometimes 
parents have exercised their au- 
thority Qver children against the 
rights of the children with austerity 
and severity, you and I know that 
often parents in the exercise of their 
parental rights have robbed their 
offspring of the opportunity of re- 
ceiving a proper education; and 
thus they have deprived their chil- 
dren of one of the sacred rights ot 
man. They have by their acts, decid- 
ed that their children should be "hew- 
ers of wood and drawers of water." 

Mr. President, when the officer of 
the law undertakes to arrest some 
youth for some crime, how few rea- 
lize that the offence has arisen, not 
from fault of the youth, but from his 
ignorance of the laws of the land, 
under which he lives. His igno- 
rance of the moral obligations which 
he owes to his fellow men, and to 
the community, ignorance resulting 
in most cases from parental neglect. 
Such a one instead of being a culprit 



subjected to confinement, imprison- 
ment, punishment or death is deserv- 
ing our deepest sympathy. Now, 
Mr. President; here then comes in 
the right of the state which is superi- 
or to all other rights, the right to 
preserve children of the state from 
ignorance and vice. If I am not mis- 
taken, very much of the people's 
money may be saved and expended 
in the prosecution and conviction of 
criminals — very much of the people's 
money may be saved, thereby reduc- 
ing the burdens of the tax-payers 
and the security of the community. 
Now, Mr. President; the question 
under consideration is to strike out 
section four and submit it as a sepa- 
rate article to the people. I hope 
the motion will not prevail, but will 
be adopted as a part of the constitu- 
tion. I think it is an important pro- 
vision for the wellbeing of this 
state, and that it would conduce to 
the honor and glory of our nation 
if every state of this glorious union 
should adopt this wise and noble 
principle. 

Now, Mr. President; I claim 
that this section does not involve any 
disregard of the sacred rights of 
man, but that it is a measure of pro- 
tection such as should be afforded 
to every citizen of this country. It 
is a measure calculated to give ad- 
ditional security of life, liberty and 
property. Now, Mr. President; when 
the children of this state shall have 
become thoroughly educated, intel- 
lectually and morally, instead of be- 
ing obliged to keep a guard in every 
town or city, and a watchman at 
every corner of the street we can lie 
down in perfect security. 



2*J0 



COMPULSORY EDUCATION 



Miinduy] 



MAXWELL 



[July 31 



111.' Kiiiilenian from Otoe (Mr. 
Mason) will get the commission of 
the Christian mothers, not against 
the rights of female suffrage but 
for universal rights. That will be a 
happy day — a day when we shall 
shine out as a nation more bright- 
ly than any other nation under the 
sun. 

Mr. MAXWELL. Mr. President. 
This section I propose to strike out. 
My idea of submitting the constitu- 
tion is not to put in any controvert- 
ed matter; any principle or set of 
principles where it will lead to dis- 
cussion as to whether they shall be 
adopted or not. • Those questions 
ought to be submitted as indepen- 
dent propositions. "Whatever argu- 
ment may be used in favor of this, 
there are many people who do not 
approve of it. People do not always 
adopt what is best. If it is true that 
this will carry by being submitted 
as an independent proposition, it 
will become a part of the constitu- 
tion, and those parties will still se- 
cure the benefit. But does not the 
fact that these parties insist so 
strongly that it shall go into the 
constitution, show that they have 
fears that it will not carry as an 
independent proposition. They pro- 
pose to have the constitution carry 
that measure. We have submitted 
no independent propositions at pres- 
ent. We have kept out everything j 
that might raise a question as to its I 
adoption. AVe may differ on minor ! 
matters, but when it comes to princi- I 
pies it is different. There is no new } 
theory. The people in olden times 
thought it was right to encourage 
1hp spread of Christianity, and so ' 



I they established state churches, and 
in later days they have established 
state schools. We all know what the 
result' of state churches has been. 
They cannot live side by side with 
free .churches, as has been demon- 
strated in many parts of Europe. 
The census returns show that the 
number of children growing up in 
ignorance is decreasing. All through 
the north today it is almost an im- 
possibility to find any but that can read 
and also write their name. We have 
a school fund of $25,000,000 and 
nothing has to be paid out, and ex- 
perience shows that these children 
will be sent to school. And why the 
necessity of compelling parents to 
send their children to school, and 
putting it in the constitution, so that 
people must vote for the constitution 
to carry that measure, or vote 
against it to defeat it. What does 
this mean? — "to establish schools 
for the safe keeping, education, em- 
ployment and reformation of all 
children destitute of proper parental 
care." What does that mean? Does 
it mean officers shall be authorized 
to pick up every ragged child on the 
streets; that they shall enter the 
sanctity of home and say, "You are 
not taking care of your children, we 
must take them?" It may bear 
such a construction. Now, is it poli- 
cy for us to insert in the body of this 
instrument a section of that kind. 
Who is to benefit by the measure? 
Not the children in the country, not 
the small towns. You will find them 
in one or two large towns. Now, 
Mr. President; I am in favor, in 
proper cases, of children that are not 
under proper parental care, of en- 



COMPULSORY EDUCATION 



221 



Monday] 



MAXWELL— STRICKLAND 



[July :n 



couraging institutions of this class. 
But is it proposed to build up these 
institutions out of the scliool fundi 
and keep them out of that fund with- 
out limit; and give $100,000 to one 
place, and another to another place? 
You must give to all cities alike. 
Every little town in the state will 
claim title to that fund. This pow- 
er ought not to be imposed upon the 
legislature. A powerful lobby will 
be instituted, and they might insist 
on one for this town; and the ar- 
gument will be that they are au- 
thorized to- do it by the constitution. 
If we submit this as an independent 
proposition we ao not imperil the 
constitution. Parties tell us there 
will be very little opposition to this 
measure. I find a very different 
state of feeling. And if this is sub- 
mitted as an independent proposi- 
tion, it is much more liable to carry 
than if they are asked to swallow it. 
People want it independent. They 
will say they do not propose to give 
any such power to the legislature and 
compel children to attend school. 
Many parents don't want to send 
their children constantly to school. 
Some have delicate children, and do 
not want them to attend all the time; 
and some children are deformed and 
can not go. The tendency of the 
age at this time is to overeducate the 
children, thereby greatly impairing 
their health. For these reasons I 
trust this will be submitted as an 
independent proposition; and I have 
drawn up one to submit after this 
is struck out. 

Mr. STRICKLAND. When I look 
at this section, it strikes me it is a 
matter of concern whether we 



should adopt it or not. It says "the 
legislature shall require by law that 
every child of sufficient mental and 
physical ability between the ages of 
eight and sixteen years, unless edu- 
cated by other means, shall attend 
public school supported by the con- 
mon school fund, for some definite 
length of time each year, etc." What 
does that mean? It means that you 
shall force his attendance. How 
force? You will have to have a po- 
lice force larger than enough to en- 
force the Ku Klux bill, it is plain to 
be seen. It does, as my friend here 
(Mr. Maxwell) says — it invades the 
sanctity of the fireside. What law 
shall say I and my wife are not the 
natural guardians of our child; and 
that the officer shall come and saj^ 
we must send it to school. Suppose 
a teacher taught a religion that I and 
my wife did not endorse? "For an 
indefinite length of time." In a 
large city it might work, where there 
are many children without home and 
learning; but it will not answer in 
Nebraska, where everybody has 
plenty to eat and drink, and where 
everybody is carefully and kindly 
taken care of. The mother would 
substantially lose all control over 
the child, at the time when she ought 
to have it under her special care. A 
man might come into my friend Gen. 
Estabrook's home, and say, "You 
are teaching something to your chil- 
dren which neither religion nor the 
Bible sanctions," and drag the chil- 
dren away from home. Gentlemen 
from Otoe and Cuming say they are 
taxed, and want to know where the 
money goes. I want the money ap- 
propriated to the specific purpose for 



'2'2'i 



COMPULSORY EDUCATION 



Moaduy] 



STRICKLAND— McCANN 



[July 31 



which It Is Intended. Now if that ar- 
gument was substantial you might 
say I'mle Sam has been very liberal 
in providing homesteads for any man 
who wishes one; in giving thousands 
of arres for that purpose; and why 
would you compel a man to go take 
one? Would you force him? And 
take a few soldiers and with bayo- 
nets behind him, push him out to 
enjoy these extraordinary privileges 
that a great nation has held out to 
him: or they might go into some of 
your large cities and say, "you have 
got a loafer here, who hangs around 
and plays ten cent poker, we will 
force him to go and take a home- 
stead." Never was a truer sen- 
tence uttered in the world than that 
uttered by my friend from Cass 
(Mr. Maxwell) that the crowning 
glory of our country is our system of 
free education. Now sir, if you get 
the machinery of this compulsory 
education so perfect as the mover in- 
tends I say a father would be justi- 
fied in standing at the door with his 
gun in his hands and keep his chil- 
dren from being taken away and 
compelled to go to school, and he 
would have a right to call on his 
neighbors to assist him in thus de- 
fending his rights. But here is an- 
other thing standing out in broad 
daylight. It is proposed to build re- 
formatory institutions, to build up 
houses of correction where idlers, 
beggars, thieves and vagabonds are 
to be gathered together, and our 
children are to be sent to these insti- 
tutions, which are to be built out 
of our school funds. In the city of 
Rochester, New YorkJ. where I was 
born, there is an institution of this 



kind, and it is filled with vagabonds 
and thieves, and these little ones 
which have been spoken of as run- 
ning about the streets of our large 
cities, and are picked up as crimi- 
nals, and sent there to be corrected. 
Now, as my friend upon my right 
(Mr. Maxwell) says, "shall we take 
this school fund, this great fund of 
ours, to build penitentiaries with 
it?" Why, I apprehend that the 
people will say that this school fund, 
no matter how large it may be, shall 
be appropriated to the religious 
purpose of educating our children, 
and shall not be used in building 
houses of correction. If the legisla- 
ture meant to make an appropriation 
to build institutions of this kind let 
them do so and not take our school 
fund. I regard this as the most ex- 
traordinary thing I ever heard of. I 
dislike to take up the time of the 
convention, and will not say any 
more now. 

Mr. McCANN. Mr. President. I 
will occupy but a few moments in the 
discussion of this question, because, 
supposing that those who have had 
charge of this matter had so thor- 
oughly digested and prepared their 
views in favor of the 4th section of 
this article, that I have not prepared 
myself to make a speech, as I did not 
suppose it would be necessary. I do 
not now propose to occupy but a mo- 
ment. For myself, I am in favor of 
this section number four as it stands. 
I have had some experience as an 
educator, in my younger days and I 
favor the principle of taxing the pro- 
perty of every citizen to the purpose 
of educating the children of the com- 
monwealth. Now the proposition 



COMPULSORY ED L CATION 



223 



Monday] 



MCCANN 



[July 31 



which was stated by the gentleman 
from Otoe (Mr. Mason) Saturday — 
that "if you have the right to tax A 
for the education of the children of 
B, you have the right to compel B to 
send his children to the school sus- 
tained by the state during a certain 
portion of the year," is one that all 
must admit the force of; but I, Mr. 
President, do not recognize it as any 
new principle. I remember that ten 
years ago, this principle was discuss- 
ed and enforced in regard to the pub- 
lic schools of Philadelphia and in the 
state of Pennsylvania, by that able 
educator, William H. Mann, of Phil- 
adelphia. I was surprised to hear, 
on Saturday, that this principle was 
a new one. I am satisfied it is right 
to tax the people of this state to edu- 
cate every child in the state. If my 
property shall be taxed to pay for the 
education of the children of the 
state, it is to my interests to see that 
they are all educated, so that they 
shall not be compelled to make their 
mark, in signing their names. I 
do insist that it is not only right but 
expedient that every child within the 
state may be educated in all the ru- 
diments of an English education. 
Now. sir, it is not only necessary, but 
to the interest of the state that they 
shall not only be taught reading, 
writing and arithmetic, but should 
be taught in all these branches which 
fit them for the duties of every day 
life. Now, sir, as to this point of 
taking the child away from parents 
and home. Of course it is not inten-. 
ded to invade the sanctity of the 
home and take the child away from 
its parents. Is it in the sanctity of 
home that we find the child prepar- 



ing for the gallows? Not at all. The 
sanctity of the home is that place 
where the child is not only being 
educated in those things which con- 
stitute what we call a common educa- 
tion, but the place where the spir- 
itual interests of the child are be- 
ing cared for. But then, sir, it is to 
the interest of the state and humani- 
ty to take the child which is not 
being educated at home, and educate 
it for a certain length of time. The 
question has been asked what we 
mean by "a certain length of time." 
That certain length of time is to be 
established by law. Suppose that for 
seven years the child is compelled to 
attend school for three months in the 
year — twenty-one months then will 
be all the time that child shall have 
spent in the school room preparing 
for the avocations of life. But sup- 
pose that the law requires but two 
months each year. I hold, Mr. Presi- 
dent, that it is not only for the in- 
terest of the state but sir, the state 
has a right to educate the children 
within her borders and prepare them 
for usefulness here, and happiness 
hereafter. I hope that the remarks 
of the gentleman from Otoe (Mr. 
Mason) may be remembered by 
those who heard them. Many of 
I those considerations he mentioned 
were urged in Massachusetts, that the 
state has no interest in the children 
I of its citizens, were made then and 
discussed. At the time the public 
schools were inaugurated in Penn- 
■ sylvania, it was provided that no 
! city should be taxed to keep the pub- 
I lie schools of that city open longer 
I than three months in the year. In 
i Pennsvlvania at that time it was urg- 



224 



COMPULSORY EDUCATION 



Monday 1 



McCANN 



[July 3r 



ed. Mr. President, that no state should 
provide further than for a session of 
the public schools more than three 
months in the year and this limita- 
tion was maintained in the Penn- 
sylvania legislature. That was the 
argument used there and at that 
time the friends of education had 
more prejudice to contend with than 
we have at the present day. We 
hold it is proper to keep them open 
ten months. We hold that the pro- 
perty holder should be taxed for the 
support of the common schools, just 
as he is taxed for any other public 
good. Every man throughout the 
commonwealth is benefited by sup- 
porting these schools, and not only 
that, but also by making it the duty 
of every parent to educate his chil- 
dren in some way. Not that we will 
compel a man to educate his chil- 
dren in a college, or . any particular 
school. We insist that every child 
shall be educated in some school. I 
care not where — it may be in a de- 
nominational school, the convent or 
the public school; but these little 
charges of the commonwealth must 
be educated. Educate them where 
you please, give the choice to the 
parents, and do not restrain them, 
but insist that they shall be educat- 
ed somewhere. I believe, sir, that 
this bill is wise in its provisions, 
section 4 reads, "The legislature 
shall require that every child of suf- 
ficient mental and physical ability," 
then if not of sufficient mental and 
physical ability it does not apply — 
"between the ages of six and sixteen 
years," which was modified in com- 
mittee to "eight to sixteen years." 
.^nd Mr. President, when we look 



back to the time we spent in the old 
log school house and went from 
there to the academy, and some of 
us from there to the college; when 
we realize ho^v little we know and 
how much more we wish to know to 
fit us for the duties of good citizens, 
we cannot deny that this twenty- 
three months to be spent in the com- 
mon school is little time enough. 
Again, "unless educated by other 
means," so it will not Interfere with 
those parents who are educating 
their own children; but if the child 
is not being educated at all, it will 
be apparent there should be a way 
provided for them and wherever 
there is such a necessity, instead of 
sending them to the houses of cor- 
rection or the poor house, I insist 
they shall be provided for and sent 
to the public schools, "in all cases 
where practicable." I am glad to 
know that the gentleman from Ne- 
maha made this amendment. For 
we may find a man and his family, 
who have gone out upon the prairie 
to take his homestead and no 
school within five miles of him. We 
do not intend to invade the sanctity of 
that house and take the child from 
its parents, who perhaps would glad- 
ly send it to school if it was practi- 
cable, — "for some definite length of 
time each year, to be fixed by law." 
Why, sir, is it supposed that the 
legislature is going to compel the 
child to be taken away from its 
home for ten months in the year 
Not at all. It is not proposed to 
take the child away from its home at 
all sir, but to compel the parents to 
send the child to some school, only 
so long each year as may be neces- 



COMPULSORY EDUCATION 



225 



Monday^ 



McCANN-CAMPBELL 



[July 31 



sary to give the child the education 
which is requisite for fitting it for 
life as a citizen of the state. The 
next part of the section reads: 
"And shall establish a school or 
schools for the safe keeping, educa- 
tion and employment, and reforma- 
tion of all children under sixteen 
years of age, who are growing up in 
mendicancy, and ignorance, idleness 
or vice." Do I hear it hinted around 
me that there is something hidden in 
this section, an intent to build up 
schools for your benefit and mine 
individually? I take it that those 
who advocate this system have no 
such object in view. This seems to 
me would be the most improbable 
plan for one having an ulterior ob- 
ject in view. It is not diflicult to 
see how we may provide for all con- 
tingencies under such a system and 
I believe, sir, that the state that 
shall provide for the compulsory edu- 
cation of its children will gain a 
reputation that shall last when all 
other things are swept away. The 
best interests of the taxpayer lies in 
the education of those for whom the 
state so provides and we are all wil- 
ling to thus be taxed provided all will 
avail themselves of the opportunity 
so offered them. We have thus pro- 
vided these schools and is it not 
within the province of the state to 
say to the parent for whose child this 
provision is made, "you must see to 
the education of that child, to a cer- 
tain extent," that it can compete 
with the greatest number of those 
with whom it has to do, when it 
takes its place upon the scene of 
active life as a citizen of this, or 
any other state. I regret, sir, that I 



did not prepare myself to present 
my views more clearly and more for- 
cibly to urge them upon this con- 
vention. I hope, sir, the section 
will be adopted. 

Mr. CAMPBELL. Mr. President. 
When I came in this afternoon and 
saw all these long winded persons 
were absent, I thought we would 
have a nice time all to ourselves 
making short speeches. But the 
gentleman from Otoe (Mr. McCann) 
deceived me with his speech; he has 
very ably discussed this question and 
I was surprised to hear him say that 
he was sorry he had not prepared 
himself. I am really glad he had not 
sir. As it is he has discussed it, 
even as ably as was done on Saturday 
by the Chief Justice or any of those 
very nice servants of the state. It 
is time that we all think that educa- 
tion is right. We do not believe in 
the invasion of households to take 
away children and put them in im- 
prisonment for the sake of education. 
I think we are hanging too many 
dead weights to this constitution, 
which will finally sink it, and a 
monument will be erected over it. 
The skulls of all these gentlemen, 
and mine, will be put in basrelief on 
them, and on it will be written 
"Alas, poor Yorick." Now we have 
been referred to Germany as an ex- 
ample of forcing children to attend 
school a certain length of time. That 
is a monarchial government, this is 
republican. In Prussia every man 
is forced to serve in the army for 
seven years. Are we going to force 
every man to serve in the armj-, 
whether there is war or peace? No 
sir! In England they tax every per- 



li-jt; 



COMPULSORY EDUCATION 



Monday] 



CAMPBELL-STEVENSON 



[July 31 



son to support the church; you might 
say with propriety that the saving 
of a man's soul is more important 
than his mind, if it is, then they 
ought to go to Polynesia and gather 
in overy man. from the hedges and 
highways and force them to come in 
and 1)6 religious. A is taxed to 
furnish the gospel to B, therefore B 
ought to be forced to hear the gos- 
pel. What kind of an argument is 
that? Perfectly ridiculous. That is 
an argument furnished us by the 
chief justice on Saturday, reiterated 
today by my colleague from Otoe. 

Mr. McCANN. No, sir. 

Mr. CAMPBELL. He intimated 
it to day; it was ten years ago urged 
in Pennsylvania. 

Mr. McCANN. The gentleman is 
correct, the gospel means glad tid- 
ings. 

Mr. CAMPBELL. It was advo- 
cated ten years ago in the Pennsylva- 
nia legislature and is nothing new. 
Now sir, the proposition is to send 
out and find children. What is the 
meaning of that? I suppose when- 
ever you find a little fellow ragged 
in the streets, catch him up and take 
him to the reformatory school and 
keep him there a prisoner. I think 
the constitution guarantees a trial 
to pvery person; if he is guilty of any 
crime punish him, if not turn him 
loose. That is what I understand to 
be the principles and tenets of our 
government. Because a person hap- 
pens to be ragged these gentlemen 
are going to take him and put him 
in prison, keep him secure, that 
means imprisonment. I thought of a 



good many things I wouJf', like to say 
but all have passed from my mind. 

Mr. STEVENSON. Mr President. 
It appears to me that most of the 
speakers on the opposition side over- 
look this fact, that it is not to strike 
out the section entirely, but submit 
it as a separate article. While I am 
opposed to the section in every 
shape, manner and form, yet I am 
not materially opposed to submit- 
ting it to the vote of the people. Now 
there is not a gentleman on the op- 
posite side of the question that will 
deny, but v/hat there are a great 
many objections to be urged against 
this section throughout the state, and 
every one of those objections tend 
to weaken this instrument we have 
under consideration in this conven- 
tion and with objections that may 
be urged to other sections, will de- 
feat this constitution. I hold it is 
our duty to submit it separately and 
if there is a majority of the people 
of this state in favor of it, it becomes 
a part of the constitution just the 
same as if it had been adopted in the 
body of it at first. If these gentle- 
men are so sanguine that this sec- 
tion will carry, that a majority of 
the people are in favor of compul- 
sory education, why should they ob- 
ject to submit it separately? I know 
that there is considerable opposition 
to the principle contained in this 
section, throughout the whole of this 
state. I do not think any man has 
a right in this free country to say 
what I might or should do with my 
children. I have not got any chil- 
dren, gentlemen, and can look at this 
question squarely and fairly and 



COMPULSORY EDUCATION 



227 



Monday] 



STEVENSON 



iJuly 31 



probably shall not have for some 
years to come. 

Mr. CAMPBELL. You never will 
have any children. (Laughter.) 

Mr. STEVENSON. If I commit 
any crime, or if my child commits 
any crime he has a right to a trial 
before a court of justice, and then 
he can be punished for it; but you 
expect to adopt here that I shall be 
compelled whether I wish to or not, 
to send my child to a school for a 
certain length of time each year. I 
hold that principle is wrong, that it 
is not founded on any principle of 
law or justice. You must not think 
I am opposed to education. I hold 
that when we tax our people and 
erect school houses in every hill and 
dale throughout the state, that we 
do our duty, and if parents do not 
send their children to school the 
state is not to blame for it, but the 
parents themselves. There are very 
few parents so forgetful of their du- 
ty as not to send their children to 
school, there are but very few in this 
state. With regard to these little 
waifs that stray about our large 
cities, I will agree with the gentle- 
man from Douglas (Mr. Estabrook) 
that there are a great many. Those 
can be supplied by a proper section 
in this constitution, but I do not 
think it is right nor just to compel 
the people to pay taxes to erect re- 
formatory schools throughout every 
district in the state, which you will 
have to do if you enforce this article, 
where it does not apply to but a very 
few sections throughout the state. 
It is only in these large towns that 
there is any need of such an institu- 
tion; and how does it come to be a 



necessity there? Is It because there 
are so many people who have a spir- 
it of idleness, and laziness within 
their bosom, who will not go out side 
of these large cities and earn an ho- 
est living, but stay in squalidness 
and filthiness because they want to 
have the name of living in a city? 
I think this section is unjust and un- 
called for outside of these large 
cities and towns. I do not think the 
necessities of the state require it. 
The American people on the whole 
are educated at the present day just 
about as well on the average as any 
people in the known world, and our 
school system is progressing; every 
day there are school houses erected. 
Everywhere it does not cost a schol- 
ar a cent to attend school and can go 
anywhere he wants. There is not 
one family out of five hundred out- 
side of these large cities but what 
send their children to school more or 
less every year. Now I do not be- 
lieve that it is necessary to educate 
a child in regard to books and neg- 
lect his education altogether in oth- 
er respects. As the gentleman from 
Cass (Mr. Maxwell) told you the 
tendency of the present age is to edu- 
cate a child too much, you are spoil- 
ing him for other vocations which he 
is a great deal better fitted to fol- 
low that he is to follow a profession, 
which almost everybody now is try- 
ing to get possession of. I wish 
to read an extract in regard to this. 
It is called "Head Work and hard 
work," by James Anthony Froude. 

"Our old universities are strug- 
gling against these absurdities. Yet, 
when we look at the work which 
they, on their side are doing, it is 



'2 '2!^ 



FROl'DE ON ENGLISH EDUCATION 



Monday] 



STEVENSON 



[July 31 



scarcely more satisfactory. A young 
man poing to Oxford learns the same 
things that were taught there two 
centuries ago; but, unlike the old 
scholars, he learns no lessons of 
poverty along with it. In his three 
years' course he will have tasted 
luxuries unknown to him at home, 
and contracted habits of self-indul- 
gence which make subsequent hard- 
ships unbearable; while his anti- 
quated knowledge, such as it is, has 
fallen out of market; there is no de- 
mand for him; he is not sustained 
by the respect of the world, which 
finds him ignorant of everything in 
which it is interested. He is called 
educated: yet, if circumstances 
throw him on his own resources, he 
cannot earn a sixpence for himself. 
An Oxford education fits a man ex- 
tremely well for the trade of gentle- 
man. I do not know for what other 
trade it does fit him as at present 
constituted. More than one man 
who has taken high honors there, 
who has learnt faithfully all that the 
university undertakes to teach him, 
has been seen in these late years, 
breaking stones upon the road in 
Australia. This was all which he 
was found to be fit for when brought 
in contact with the primary realities 
of things. 

"It has become necessary to alter 
all this; but how and in what direc- 
tion? If I go into modern model 
schools, I find first of all the three 
R's, about which we are all agreed; I 
find next the old Latin and Greek, 
which the schools must keep to while 
the universities confine their honors 
to these; and then, by way of keep- 
ing up with the times, "abridg- 



ments," "text-books," "elements," or 
whatever else they are called, of a 
mixed multitude of matters, history, 
physiology, chronology, geology, po- 
litical economy, and I know not what 
besides; general knowledge, which 
in my exi:erience, means general ig- 
norance; stuff arranged admirably 
for one purpose, and one purpose 
only — to make a show in examina- 
tions. To cram a lad's mind with in- 
finite names of things which he nev- 
er handled, places which he never 
saw or will see, statements of facts 
which he cannot possibly understand, 
and must remain merely words to 
him — this, in my opinion, is like 
loading the stomach with marbles; 
for bread, giving him a stone. 

"It is wonderful what a quantity of 
things of this kind a quick boy will 
conjmit to memory; how smartly he 
will answer questions; how he will 
show off in school inspections, and 
delight the heart of the master. But 
what has been gained for the boy 
himself, let him carry this kind of 
thing as far as he will, if, when he 
leaves school, he has to make his 
own living? Lord Brougham once 
said he hoped a time would come 
when every man in England would 
read Bacon. * William Cobbett, that 
you may have heard of, said he 
would be contented if every man in 
England would eat bacon. People 
talk about enlarging the mind. 
Some years ago I attended a lecture 
on education in the Free Trade Hall, 
at Manchester. Seven or eight thou- 
sand people were present, and among 
the speakers was one of the most 
popular orators of the day. He talked 
in the usual way of the neglect of past 



COMFULSORY EDUCATION 



229 



Monday] 



STEVENSON 



[July 31 



generations, the benighted peasant in 
■whose besotted brain even thought 
was extinct, and whose sole spiritual 
instruction was the dull and dubious 
parson's sermon. Then came the 
contrasted picture; the broad river 
of modern discovery flowing through 
town and hamlet, science shining as 
an intellectual sun, and knowledga 
and justice, as her handmaids, re- 
dressing the wrongs and healing the 
miseries of mankind. Then, rapt with 
inspired frenzy, the musical voice, 
thrilling with transcendent emotion 
— "I seem*" the orator said, "I seem 
to hear again the echo of that voice 
which rolled over the primeval chaos 
saying, 'Let there be light.' " 

"As you may see a breeze pass over 
standing corn, and every stalk bends 
and a long wave sweeps across the 
field, so all that listening multitude 
swayed and wavered under the 
words. Yet, in plain prose, what did 
this gentleman definitely mean? 
First and foremost, a man has to 
earn his living, and all the 'ologies 
will not, of themselves, enable him 
to earn it. Light! yes, we do want 
light, but it must be light which 
will help us work and find food, and 
clothes, and lodging, for ourselves. 
A modern school will undoubtedly 
sharpen the wits of a clever boy. He 
will go out into the world with the 
knowledge that there are a great 
many things in It which it will be 
highly pleasant to get hold of; able, 
as yet, to do no one thing for which 
anybody will pay him, yet bent on 
pushing himself forward into the 
pleasant places, somehow. Some iti- 
telligent people think this is a prom- 
ising state of mind, that an ardeuz 



desire to better our position is tho 
most powerful incentive that we can 
feel to energy and industry. A great 
political economist has defended the 
existence of luxuriously-living, idle 
classes, as supplying a motive for ex- 
ertion to those who are less highly 
favored. They are like Olympian 
gods, condescending to show them- 
selves in the Empyrean, and to say to 
their worshippers: "Make money, 
money enough, and you and your 
descendants shall become as we are, 
and shoot grouse and drink cham- 
pagne all the days of your lives." 

"No doubt this would be highly in- 
fluential incitement to activity of a 
sort; only it must be remembered 
that there are many sorts of activity, 
and short, smooth cuts to wealth, as 
well as long, hilly roads. In civi- 
lized and artificial communities there 
are many ways, where fools have 
money and rogues want it, of effect- 
ing a change of possession. The 
process is at once an intellectual 
pleasure, extremely rapid, and every 
way more agreeable than dull me- 
chanical labor. I doubt very much 
indeed, whether the honesty of the 
country has been improved by the 
substitution so generally of mental 
education for industrial; and the 
three R's, if no industrial training 
has gone along with them are apt, as 
Miss Nightingale observes, to pro- 
duce a fourth R — of Rascaldom." 

Now I take it, Mr. President, that 
this demonstrates that it is enough 
for us if we erect school houses 
throughout the state, and give the 
people or the children a chance to 
attend without enforcing that attend- 
ance by law. God, when He created 



t>3vi 



COMPULSORY EDUCATION 



Montluy ] 



STEVENSON— WEAVER 



[July 31 



US, placed us here as free moral 
agents. He said like unto this 
"choose ye whom ye will serve. If 
God be God serve Him. but if Baal 
then serve him." Cannot this prin- 
ciple apply just as well to us, the 
people of this state, as it did to the 
people of the whole universe? Let 
us erect school houses; give the chil- 
dren the chance to attend, and if 
they do not embrace the opportunity, 
the state is not to blame. 

Mr. TOWLE. It appears to me 
that the true question before the 
house has been lost sight of. I think 
the gentleman himself has lost sight 
of it: The question is whether this 
proposition shall be submitted sepa- 
rately or embodied in the constitu- 
tion. It is a question, not of abstract 
right as to whether the future gene- 
rations shall be educated or not. I 
take it that the abstract principles 
involved have been thoroughly can- 
vassed and discussed, and the 
members are ready to vote on it 
either here or at the polls. I take it 
we are sent here to frame a constitu- 
tion for the people of this state, and 
not for the purpose of framing a 
school law or a system of education 
which shall, at all hazards, educate 
the people. But we are here to 
frame a constitution which shall em- 
brace not only the question of 
schools, but perhaps a thousand 
others that are all of great im- 
portance to the people of the state. 
Here is a new idea advanced, a new 
principle; and it becomes us, like 
prudent men, and like individuals 
who should weigh the consequence 
and see whether it will invite opposi- 



tion. When a new principle is advo- 
cated which we ourselves know, in our 
daily life, and have every reason to 
believe, will not meet with the wish- 
es of the people, it appears to me 
that we should not embody it in the 
constitution and thereby risk its 
adoption by the people. The people 
are represented here, and we find 
there is a large element here opposed 
to the adoption of this principle in 
toto in. any respect. If it is a fact 
as I take it to he from conversation 
I have heard there is a decided op- 
position to this proposition. I be- 
lieve it would be swamped, and the 
whole instrument sent down with it. 
If it is right, let the people them- 
selves say so; but do not attempt to 
carry it by fastening it on to the con- 
stitution, but submit it separately. 
There can be no proposition more 
true or general than that these ne\*, 
unusual propositions, should not be 
placed in the body of the constitu- 
tion; but submitted separately. 

Mr. WEAVER. Mr. President. 
The question of compulsory educa- 
tion is one with which I do not pre- 
tend to be acquainted to any con- 
siderable extent, but after listening 
to the arguments elicited in its fa- 
vor I am of the opinion that this 
question is worthy of the widest and 
most comprehensive discussion — a 
subject not to be passed by without 
the most mature and deliberate 
thought. And more especially when 
we take into consideration the im- 
portant fact that under a republican 
form of government there is safety 
and prosperity only to the extent of 
the enlightenment of the people com- 



COMPULSORY EDUCATION 



231 



Monday] 



WEAVER 



[July 3] 



posing the nation — then it is we 
should weigh well this question as to 
whether we may not bring about a 
greater degree of intelligence and by 
so doing place the rising generation 
beyond the influence of plotting dem- 
agogues. Now sir, I claim there can 
be no reasonable or sound argument 
against the proposition that the state 
has property in the individuals com- 
posing the state to the extent of be- 
ing justifiable in forcing upon them 
certain duties and compelling them 
to perform certain acts which from 
a logical stand point would not only 
be highly beneficial to the individual 
himself but redound to the good of 
fhe state at large. What respect 
would be entertained for that nation 
which when the enemy were battling 
at their very gate-way would send 
out their soldiers without their ar- 
mor to be swept out of existence by 
the opposing forces, and now I ask 
the question whether education is 
not the strong armor with which to 
fight the battles of life? Whether if 
it shall once become universal it 
will not have a tendency to do away 
with riot, revolution, blood-shed and 
war? And whether if such be the 
natural results of enlightenment it 
would not be expedient, as a preven- 
tion of crime and evil, that the state 
look well to the education of the ris- 
ing generation.? I ask what have 
been the causes of the riots that have 
repeatedly taken place in our great 
national metropolis? (N. Y.) With { 
one voice you answer they are attri- 
butable to ignorance — attributable 
to the fact that the ignorant masses 
have not learned to respect the rights 
of others, — have not learned that 



their own liberties are safe only 
when they regard the liberties of all. 
"When the blind lead the blind they 
both fall into the ditch," and it is 
this blind zeal that leads men on to 
battle — I would ask how it was that 
a single man kept the whole of the 
old world in terror until by their 
united forces he was intercepted at 
the battle of Waterloo? Was it not 
because the ignorant and untutored 
masses of all France, like a pack of 
blood hounds, were ever ready to fol- 
low their unscrupulous leader — en- 
lightenment asks a reason, when 
action is required, but ignorance fol- 
low blindly and submissively. — Do 
you tell me that in a nation where 
intelligence was the characteristic 
of the people the masses would have 
followed their ambitious leader 
across the sands of Africa— press- 
ing their way forward to make war 
against an innocent people until they 
rested triumphantly beneath the 
shadows of the stupendous ruins of 
Luxor, and the mighty Sphinxes and 
sepulchral monuments of Thebes, or 
that the same ambitious leader 
could, where intelligence was univer- 
sal:, have led the uncounted thous- 
ands out of their own territory to be 
slaughtered at the battles of Auster- 
litz and Borodino? And who will 
deny that the war of the Cru- 
sades, the hundreds of thousands 
who were slaughtered were sacri- 
fised at the shrine of ignorance and 
superstition? Individual instances 
are indeed to numerous to mentiou, 
all of which teach the great lesson 
that enlightenment is the only safe- 
guard against extremes and exces- 
ses.. 



232 



COMPULSORY EDUCATION 



Monday] 



WEAVER 



[July 31 



As we gaze fibroad and take a com- 
prehensive view of our times it is 
astonishing /o observe the waste of 
intellect aiiong all classes of the 
people — ^,the riches of the world are 
husbanded up with the greatest of 
care while the inexhaustible treas- 
ures of the mind are left to sink into 
obscurity untouched and unopened — 
We excavate caverns in the earth to 
hunt for the precious metals — ^^'^e 
make artificial channels to wash the 
soil for diamonds — We plunder the 
sky of her feathered tribes — We 
draw from the earth and sea and 
sky to increase our material wealth 
while we neglect the mind which 
from proper cultivation we might 
gather an abundant harvest. Thus 
has it ever been in the eagerness to 
amass uncounted gold, the masses 
seem to have forgotten what should 
have been their highest aim in ex- 
istence — they grovel in the dust for 
something to satisfy their animal na- 
tures — they strive to appease their 
passions — they endeavor to pacify 
their consciences with the gilded 
bawbles of wealth — they neglect the 
elements of intellectual and moral 
greatness for the sordid and perish- 
able things of time — they are like 
the temples and obelisks of Egypt 
over which the sands of the desert 
have been drifting for thousands of 
years — they are enshrouded in the 
pall of avarice and ignorance — they 
are buried beneath the rubbish of 
wealth — scattered on every hand are 
intellects that only need arousing 
when they will arise and shake off the 
spirit of lethargy which only hinders 
them from ascending into regions 



far beyond the gaze of human vis- 
ion. 

It is not a few men shining forth 
from the multitude that shows forth 
the intellectual greatness of a na- 
tion, but it is the amount of actual 
knowledge possessed by the masses 
that renders a nation great, intellec- 
tually, morally and physically and 
now the inquiry arises, how 
much have we already lost by not 
having had a more complete educa- 
tional system and how can we 
quickest remedy the great evil and 
speed on the day of universal educa- 
tion when the masses shall show 
forth in their lives the benefits of ex- 
panded and cultivated intellects? 
I think the only solution is by com- 
pulsory education. Who is not im- 
pressed with the truthfulness of the 
adage uttered by the great philoso- 
pher when he said "Homines nihil 
agendo discunt male agare," men by 
doing- nothing- k'arn to do evil — It is 
not in our district schools — our aca- 
demies — our seminaries — or our col- 
leges that our young men of the land 
are being educated in drunkenness, 
larceny and murder, but it is in the 
hedges and the by-ways — in gambl- 
ing shops and houses of prostitution 
where these crimes have their con- 
ception. 

In view of these facts which can- 
not be gainsaid how important is it 
that our youth of the land not only 
have a place where they may avail 
themselves of an education, but that 
the state look well to the fact that 
they be placed in these institutions 
of education that they may grow up 
into usefulness, instead of becoming 



COMFULSOKY EDUCATION 



233 



Monday^ 



WEAVER-MAXWELL— KEN ASTON 



[July 31 



subjects for our jails, penitentiaries 
and poor houses. 

The argument advanced by the 
gentleman from Douglas (Mr. Strick- 
land) — whose education and ability 
should lead him to take a higher 
view of the question, is that it will 
never work here, in this great state 
of Nebraska. Why, it is the very place 
for it to work; our large school fund 
giA^es us great advantages and furn- 
ishes us with the means of carrying 
the proposition into effect. The gen- 
tleman from Cuming (Mr. Steven- 
son) makes a point, — or tries to by 
reading from a book. Why, the mat- 
ter treated of there, has no applica- 
tion to this case at all. That applies 
to where children are educated in a 
hot bed manner, without sufficient 
physical development. I hope this 
proposition will be inserted in the 
constitution — go in absolutely, and 
not by permission. The gentlemen 
from Cass (Mr. Maxwell) says why 
not submit it as a separate proposi- 
tion? Why, there is a great princi- 
ple involved here, and the section 
should be incorporated in the consti- 
tution when it goes before the peo- 
ple. I am in favor of this course, 
Mr. President, if the constitution be 
rejected on that ground, let it be re- 
jected. 

Mr. MAXWELL. (To Mr. Weav- 
er.) Did you say let the constitu- 
tion be defeated on that ground? 
Now I say, if the constitution will be 
accepted otherwise, will it not be 
better to submit this section separa- 
tely and let it stand on its own mer- 
its? 

Mr. WEAVER. I would not. I 
■would put it in absolutely. I ven- 



ture to say that the people of Nebras- 
ka will not defeat the constitution 
on that ground. 

Mr. KENASTON. Mr. President. 
I hope this resolution will not pass. 
While I am not unwilling to have it 
submitted as a separate and distinct 
article, yet I am not willing to have 
it placed here as a clause in the con- 
stitution. More than that — I am op- 
posed to this section anyway. While 
I am opposed to this section T am not 
opposed to the educational interests 
of this state nor of any other state. 
I believe the people of the state gen- 
erally, are in favor of every educa- 
tional interest which can be brought 
before them. But sir, I have never 
been of the opinion that this princi- 
ple of compulsory education was a 
good one. We have seen its influ- 
ence brought to bear in the days of 
our childhood when the rod was 
brought into force to compel the 
' child to learn; the result was the 
child did not then progress in his 
studies as he has since it was abolish- 
ed. Thei'e should not be a law com- 
! pelling children to be educated. I 
i am willing, and favor having a law, 
1^ if it can be done, to persuade chil- 
j dren, or the parents of children, 
' rather, to educate them. The princi- 
ple under discussion is impracticable 
in many respects. There are many 
parents who are unable to send their 
children to school; even if there is 
one within reach, thev cannot always 
send to it. For instance, they may 
be infirm; they may be aged and they 
may need the attention of their child 
even though he be under sixteen 
years of age. This very section 
would tend to instruct the child to 



234 



C0M1*ULS0RY EDUCATION 



Monti :i'. 



KENASTON-GRIGGS-SPRAGUK 



[July 31 



disregard his pait-iiis, and set aside 
the first law of nature. But we have 
schools now all around us; they are 
on every hill side. My impression is 
that if proper influences are brought 
to bear upon the parents the children 
of this state will be educated. But 
then there are other reasons why this 
proposition should not pass. This 
compulsory education is contrary to 
the spirit of our institutions.. The 
children bf this country have been 
taught, from their earliest recollec- 
tion, to believe that liberty is the 
very best thing they can enjoy. From 
their cradles they have been taught 
this, and they will not submit to this 
liberty being taken from them. They 
will not like the idea of being sent off 
to some city or town foreign to their 
homes and there put in school for 
mendicants, when it is not true of 
them that they are such. Yet they 
are placed there as such and people 
will look upon them and regard them 
as mendicants, they will look upon 
them as not being able to have the 
education and care they need at home 
and thus not only themselves but 
their homes are reproached by this 
system. I will not vote for this sec- 
tion for these reasons. And further 
the idea of the child being taken 
from its home, when he is perhaps 
the stay and support of that home. 
I remember the gentleman from Otoe 
(Mr. Mason) speaking of the moth- 
er's fond care and prayers and her 
"angelic" influence being thrown 
around the child and guarding him 
from evil influences, the severing of 
the sacred ties that should bind them 
to her. The officer of the land comes 
disregarding these ties in the home 



circle and snaps them asunder and 
separates the parent and child. I 
think this stands opposed to the 
ideas of our free institutions of 
American liberty. Yet, sir, I am 
willing that this question shall go 
before the people as a separate pro- 
position to be voted on by them. 

Mr. GRIGGS. Mr. President. I 
will not undertake to make a speech, 
but simply state my views on this 
subject. I am in favor of compul- 
sory education because I believe it 
is right. While I believe the parent 
has rights; yet I do not put it on 
this basis. I say that the child has 
a right to an education, and a right 
that the state must protect and care 
for, and if the parent refuses to give 
to that child the education neces- 
sary for it, it Is the place of the state 
to step in and give it that necessary 
education. I will not vote to strike 
section four out of this article, neith- 
er will I vote for it as it stands here, 
for I do not believe in placing the 
children of the poor in those schools 
with mendicants. My idea is to 
strike out all commencing in the 
fourth line relating to those schools 
for mendicants, and if we insert it at 
all insert it in a separate section; 
and then I would strike out in the 
first line the word "shall," and in- 
sert "may," Then I think the peo- 
ple will adopt this plan and leave it 
to the legislature if they find it don't 
work well to abolish it. 

Mr. SPRAGUE. Mr. President. I 
did not think that I should occupy 
the floor again on this question 

Mr. LEY. Mr. President. I rise 
to a point of order, the gentleman. 



COMPULSORY EDUCATION 



235 



Monday] 



SPRAGUE-ROBINSON 



[July 31 



has spoken once upon this ques- 
tion. 

The PRESIDENT. The gentle- 
man has not spoken on this question, 
he is in order. 

Mr. SPRAGUE. Now, Mr. Presi- 
dent, there has considerable been 
said upon the principle contained in 
this section on both sides, and I will 
state what my ideas are, and will 
promise you I will be brief. My ex- 
perience has been so far in my pro- 
gress through this world, that, 
whether in a question of morals, 
right or what not, the best way to 
make an impression on the people, 
was not by compulsion, but it is al- 
ways better to reach them by some 
other means than force. You say 
to a man you must and shall do so 
and so; and he will at once rise and 
say I will not. Now, sir, I know that 
no one of the members of this con- 
vention will be heard to say that 
education is not good, but that they 
are in favor of every measure that 
will educate the great mass of the 
people of our state. Sir, what is the 
best means of securing that, is the 
point which we differ upon. Now, 
sir, what has been the experience of 
this country? Why, sir, it is that 
the great mass of the American 
people have been educated. Why is 
that the case? Because we have 
these public schools — free schools, 
scattered through the land — The 
general disposition is to educate, 
every child, and I do not believe 
there is a father or mother in the 
state of Nebraska, who would refuse 
to educate their children if they had 
the opportunity. If that is so, why 
place upon the statute books a clause 



that is objectionable to a great many. 
Gentlemen get up here and say that 
they don't believe the people would 
I'eject this constitution on account 
of this section. I have taken pains 
to enquire what is the opinion of my 
constituency on this and I am proud 
to say that I represent a constitu- 
ency of intelligent men — and I be- 
lieve they would vote against this 
constitution with this clause in, and 
yet not one single man of them 
would refuse to educate his children 
with an opportunity within reach. 
You may send out your police force 
to inquire where is the child that is 
neglected in this respect, and they 
will tell you that he is not found in 
Saunders county, and yet I tell you 
there is an opposition to this clause 
of the constitution that will endan- 
ger this constitution. Why then put 
it in the constitution if at the same 
time, if it is so good, you can submit 
it to the people as a separate propo- 
sition? Why compel men to vote 
against the constitution, with this in 
it, wKo would otherwise vote for it 
without this? I think we are get- 
ting up a much better constitution 
than the old one, and I v/ould be glad 
to see it adopted, for this reason I 
hope the section will be submitted 
as an independent proposition, so 
that the people can adopt or reject, 
without rejecting the whole constitu- 
tion. I feel as much interested in 
the educational interest of the state 
as any man here and will vote to 
submit this as an independent pro- 
position. 

Mr. ROBINSON. Mr. President. I 
am opposed to the proposition even 
as an independent proposition. I 



»23<; 



COMPULSORY EDUCATION 



MondiLvl 



ROBINSON— McC ANN 



[July 31 



know that some gentlemen have talk- 
ed here that whatever the people 
want they ought to have. Although I 
am one of the people, I am not clear- 
ly convinced of this. I think it is 
a dangerous innovation on the old 
system and shall vote against it in 
every sense of the word. It strikes 
me they have referred all the logic 
that has been used for the past twen- 
ty years in regard to government 
and education both. For my own 
part Mr. President, I take it those 
governments are best that govern 
the least. I believe that to be a 
primary principle of all governments, 
and I am opposed to positive legis- 
lation in every form, unless those 
who are in favor of it are able to 
show there is some present necessi- 
ty for it. I take it the object of 
government is purely limited, it 
should impose restraints, but should 
never require anything of an in- 
dividual unless there is positive ne- 
cessity. I think there would be just 
as good logic in favor of a general 
herd law if every farmer in the state 
had a first class fence around his 
farm, as there is now for this propo- 
sition. Gentlemen have not shown 
us that their constituents are in a 
midnight of ignorance. I have been 
over this state a little and have not 
seen this darkness that has been 
talked of. When gentlemen will 
show me the necessity of introducing 
a proposition of this kind, compell- 
ing the people to send their children 
to school, I will admit it. There 
has a great deal been saidv princi- 
pally by the gentlemen from Otoe 
(Mr. Mason) in regard to the rights 
of the child. He stated here it was 



the absolute right of the child to re- 
ceive an education. I deny it. I take 
it there is a relation existing between 
parent and child and that the rights 
of neither are absolute, they, are de- 
pendent upon something. The child 
is not absolutely entitled to an edu- 
cation from a parent; unless it has a 
parent it cannot be an absolute 
right, yet that is th^ kind of logic 
we are to listen to here. 

Mr. McCANN. Allow me to ask a 
question. Has a child, parent or no 
parent, a right of natural support, 
food and clothing? 

Mr. ROBINSON. I take it that 
the child has a right to absolute sup- 
port in the pursuit of life, liberty 
and happiness, if it has got any 
chance to get it. I may meet a child 
in the street, I am not its parent, it 
has none, now, sir, if it is the right 
of that child to support, and support 
from me, that child has its remedy 
in a court of justice. How is it going 
to enforce its right? I say it is not 
an absolute right of the child; if 
the child has parents, there arises a 
duty in the parent to provide its sup- 
port, and I admit, it is the duty to 
provide for the education, but by no 
means is it an absolute right. The 
gentleman I suppose, desired to go 
down deep into his Bill of Rights. 
It is a humbug. I am willing to ad- 
mit it is very much the right of a 
child, that it is the bounden duty of 
the parent to provide education and 
support, there is a duty on the one 
side and a right on the other. 

Mr. McCANN. I do not under- 
stand whether you really admit the 
child has that inherent right either 



COMPULSORY EDUCATION 



237 



Monday] 



ROBINSON 



[July 31 



at the hands of the parent or state. 

Mr. ROBINSON. He has no such 
right. It has a right of support from 
the parent, but not any absolute 
right. When a man has an absolute 
right, he has got that right under 
all circumstances, and there are no 
conditions necessary to give him that 
right. It is a mere matter of defini- 
tion. Now I wish to pursue this a 
little further. I admit on the one 
hand it is the duty of the parent to 
provide the child with support and 
education, it is the right of the child 
to have that support, he has a right 
to it arising out of the very relation 
of parent and child, but I stand here 
for fathers and mothers, I assert they 
all have some right, I assert that if 
they are unable to provide a child 
with support and with education, 
that the duty ceases. Now you are 
going to embody in your constitution, 
in your fundamental law, a provis- 
ion that the parent shall, for a cer- 
tain number of years, if he shall be 
able or unable, he shall send his 
child to school between the ages of 
six and sixteen. These parents have 
brought their children into the world 
and it is their first duty to provide 
them with sustenance, food and 
clothing, that is the first right of the 
child and the first duty of the parent, 
far higher than that of education. 
Now, sir, it may be that under all the 
circumstances, taking into consider- 
ation his property and hard times, 
that he has done all he can for the 
child; the child becomes able to as- 
sist him on his farm, or in his shop, 
he desires his assistance and wishes 
to teach him to earn his livelihood, to 
teach him to be a good shoemaker 



or farmer. Now sir, I undertake to 
say he has the right to decide for 
himself, that having supported his 
children, and being willing to teach 
them to learn an honest livelihood, he 
shall not be bound to send them to 
school unless he sees fit to do so. If 
he desires to punish himself and 
send them to school, I hope he will 
do so. Who shall decide upon his 
ability but himself? It would be 
wrong to force him to do it, but there 
is no necessity for it. Look at your 
common school system, are there not 
complaints from intelligent men 
who know more than we do about 
this thing, that our common schools 
are inefiicient? How is it in Nebras- 
ka? Your houses are miserably 
provided, miserably taught, every- 
thing is miserable about the 
whole system. Now sir, you had bet- 
ter make these schools fit for the 
purpose to which they are instituted, 
before you undertake to force men 
to send their children. There is 
great room for improvement, but sir, 
there is another fact to be looked at. 
Omaha probably has the best schools 
in the state, the best common* 
schools, she has a large revenue. I 
will take Nebraska City. How many 
scholars have the schools, are they 
anything like the schools of this 
town or Illinois? They are completely 
overcrowded with scholars; they are 
so badly crowded that they are oblig- 
ed to build new school houses right 
along, they have not enough teach- 
ers, not enough recitations per day, 
Until you are able to provide all the 
children that desire to go to school 
with good schools and teachers, why 
in the world did you adopt a pro- 



'J3S 



AMKKK AN AND GERMAN EDUCATION 



Muniluyl 



ROBINSON 



[July 31 



vision lilie tliis? It is perfectly ab- 
surd. I'orfoot your system, raise your 
money and build your school houses, 
get this system in running opera- 
tion, nialce it as efficient as possible, 
and 1 will guarantee that those 
schools will be full enough, that 
every child in the neighborhood 
will go there and be educated. Why 
sir, it strikes me that the remark, I 
think it was made by old Job, when 
some of his friends came to see him, 
would be applicable to these gentle- 
men. "Surely you are the people 
that my wisdom will guide." No 
man can point to half a dozen con- 
stituents, unless it be on the border, 
who are just as anxious and interest- 
ed in perfecting our school system as 
myself. Any such system as this' 
adopted contends inevitably to lower 
the standard of education in this 
country. Sure you can institute as a 
state standard of education a very 
high grade. If you put it down so 
that, in your sovereign mercy you 
put it within reach of every man in 
the state you must do that to make it 
universal. If you do that what does 
your common school system become 
worth? I will cite Mr. Buckle as an 
authority. He has probably written 
as able a work as ever was written. 
He compares the system of learning 
in Germany and in this country; and 
states that the distinctive difference 
lies in this, that in Germany they 
have a few very learned men who 
tower above those of any other na- 
tion; that they surpass in philosophy, 
and in all the sciences every other 
nation. But it is only just a few 
men. The mass of the people are 
entirely forgotten, and when vou 



speak of the literature of Germany 
you speak of the lions, of a very 
limited class indeed. There is noth- 
ing like a liberal diffusion of know- 
ledge in Germany today. He points 
to the opposite in this country, and 
says exactly the opposite has taken 
place. There is no man of towering 
genius, and no man of very great 
learning; but every man, speaking 
generally, has a good liberal educa- 
tion, is acquainted with politics, 
reads history and the newspapers; 
while in Germany the common people 
learn to read and write; but I must 
say, in all candor, I never found one 
who could do much more than write 
his name. There may be some who 
come here and learn the English 
language, and become Americanised 
but, sir, you find them all Germans 
right from the old country; and I 
will venture to say you cannot find 
one in Nebraska who will do much 
more than read, write and cypher. 
A gentleman told me that they not 
only knew that, but that they were 
posted on the history of the conti- 
nent generally. On another princi- 
j)le it may be accounted for. It may 
be they are learned in the school 
or at the fireside. I am confident 
that Mr. BOckle's idea is correct. It 
is admitted he was better posted in 
the German language than 75 lOOths 
of the Germans. He is better ac- 
quainted with its philosophy, its 
history, its poetry and its sciences. 
He was a man thoroughly capable to 
judge. I stated I would vote against 
it in either form. Therefore, I 
think it right to divide this question. 
I will say further that this proposi- 
tion will not carry, I am certain, in 



COMPULSORY EDUCATION 



239 



Monday 



CURTIS -PHILPOTT 



[July :?1 



my constituency, notwithstanding it 
is not a great one. They are intelli- 
gent and take the papers, but they 
are desirous of doing in this matter 
as they do in all others. Just about 
as they please. If you can convince 
them it is for the good of the state 
to establish such a provision as 
this then I have no doubt they would 
vote for it.. But so long as they in- 
sist that they know as much as I do, 
they will act for themselves. I think 
it is insulting the intelligence of this 
people to undertake to force a sys- 
tem like this upon them. It is un- 
necessary, and I hope will not be 
adopted. 

Mr. CURTIS. Mr. President. I 
cannot let this matter pass without 
raising my voice in favor of compul- 
sory education. I hope the measure 
will prevail and the state structure 
we are now erecting may have for 
its crowning glory that every child of 
our state shall be educated. Lay not 
the foundation of this structure on 
policy or expediency, but dig down to 
the bed rock of eternal truth and 
justice and there lay out the struc- 
ture broad, large and enduring, on 
this foundation we will rear a struc- 
ture that shall last not only for this 
generation, but for generations to 
come after. God grant that our work 
may be such that they shall call us 
blessed. The fault of ignorance lies 
not generally with the children), 
but with those who ha.ve the care of 
them, and ignorance and vice stalk 
in our land through the cupidity, 
vice and carelessness of such guar- 
dians, and we are surrounded by an 
element of growing ignorance and 
vice that soon in a g-reat measure 



will take our places at the ballot 
boxes and help to wield the destinies 
of our state. Let us plant this prin- 
ciple in our constitution and we can 
trust it safely in the hands of those 
who follow after us. Withhold it and 
we increase largely that class who 
are led blindly to the ballot box, and 
use their dearest right of freemen 
not knowing what they do, 'Tis a 
fearful thing, shall it be forever so? 
Our dearest rights and privileges in 
the hands of those who can neither 
read nor write. The ballot blank 
paper to them but a lever in the 
hands of the demagogues who use 
them to overthrow perchance the 
model republic of the world. Gen- 
tlemen, decree that it shall not be 
so. The wealthy and powerful need 
not our fostering care, 'tis the weak, 
the poor, the lowly, who need the 
strong hand of the government to lift 
them up, and its strong arm to sus- 
tain and make them men. Guard not 
the entrance to the temple of know- 
ledge with a flaming sword, but 
throng it with the youth of our land, 
and in that throng place every child, 
if it takes the strong arm of law to 
place and keep them there, let not 
policy, let not expediency keep us 
from such a work. We have the 
right, let us use it. A parent it is 
true is the natural guardian of a 
child but he has no right, natural or 
other, to sink his child in the depths 
of ignorance and vice, and drag its 
soul to hell. When we have completed 
the structure which we are now 
erecting let us emblazon on it in let- 
ters of living light universal educat- 
tion is the corner stone of uni- 
versal liberty, and let us make the 



24J 



COMPTLSORY EDUCATION 



Mondiiyl 



PHILPOTT— ROBINSON 



[July 31 



Stream of knowledge so pure that it 
shall be a river of life. 

Mr. PHILPOTT. Mr. Chairman. I 
have listened with much interest to 
the discussion of this question, I 
have heard the story of the little 
waifs. I have heard also of the ab- 
solute right of the child. I have 
heard also this idea advanced that if 
the government taxes us and we pay 
out our money, we have a right to 
say that those for whom we pay it, 
are educated, when we are taxed for 
this purpose; but I would not base 
my opinion that it is my duty to vote 
for this section upon what I have 
heard, entirely. The government 
claims the right to draft its citizens 
into the militia service of the coun- 
try whenever their services are 
needed. By what right does the 
government claim and exercise that 
authority? To my mind, it is on this 
principle; that the government has 
a right to exercise all those means 
which are necessary to assure its 
permanency and stability. Now it 
cannot be denied that the success of 
a republican government is largely 
dependent upon the intelligence of 
the people. Educate the people; edu- 
cate them all. The more you edu- 
cate them — the more intelligent they 
are, and the better able to discharge 
the duties they owe to the govern- 
ment, and the duties they owe to 
each other. Now sir, I apprehend 
that the object of establishing a 
higher grade of schools is to edu- 
cate the people so that they may be 
able to discharge the duties they 
owe the government. If that be 
true the government claims that it 
has a right to tax the people to ac- 



complish that result. I claim sir, that 
after the people have established a 
system of schools in order to pro- 
vide that they may be able to dis- 
charge their duties, the government 
has a right to say that every child 
in the land shall be educated. It has 
this right, as much as to draft its 
citizens into the army and send them 
out after a few months drill, to 
meet the enemy, and no one will de- 
ny this right. Now, I want to know 
if the government has no right ta 
prepare its citizens — to prepare its 
people to perform all the duties 
which devolve upon them in life. I 
claim that we have the right and 
power if we see fit to use it, to com- 
pel every child in the land to be 
educated. 

Mr. ROBINSON. (To Mr. Phil- 
pott.) Do you think the government 
is made by the people, or the people 
made by the government? 

Mr. PHILPOTT. I claim that the 
government is made by the people, 
but the government is bound to see 
that the duties which go to insure its 
stability and permanence, are per- 
formed. I believe it has been stat- 
ed here that there are some portions 
of the state in which there are 
no schools organized, that child- 
ren can attend. I would call 
attention to this fact, that be- 
fore the government should de- 
mand or force children to attend 
school, it would be the duty of those 
having charge of the school matters 
in the different districts, to provide 
that schools were organized. This 
government would never bind par- 
ents to send their children to school 



COMPULSORY EDUCATION 



241 



Monday] 



ESTABROOK— CAMPBELL 



[July 31 



if there is no school provided. I 
really felt deeply interested in the 
class of cases spoken of by the gen- 
tleman from Douglas (Mr. Estabrook) 
I think that what he said is well 
worthy of our consideration, when 
we consider that the government is 
entitled to have these children edu- 
cated in order to have them do their 
duty towards that government. I 
ask you gentlemen to consider these 
facts, and I believe you will favor 
the adoption cf the fourth section of 
this article. 

Mr. ESTABROOK. Mr. President. 
It may be true sir, that it is our du- 
ty whenever a proposition is pre- 
sented which excites hostility, to 
give way, for fear somebody will op- 
pose its passage, but I am in favor 
of putting such provisions in the con- 
stitution as we think should go there, 
and take the chances. If sir, there 
is anything in this article which I 
deem of more importance than an- 
other it is this 4th section. It has been 
said that we have no right to say 
that the children of this state, the 
ones for whom this large school 
fund of ours is provided, shall go 
to school and be benefited by this 
fund. Let us suppose a case. A 
heavy storm occurred last week. We 
will say that a very important bridge 
on the road between this place and 
Omaha, was swept away. All com- 
munication between these points is 
cut off. The county commissioners 
of this county meet and levy a tax 
in order to have the bridge put in 
at once. You are called upon for 
your share. You ask why the tax 
is levied and what your proportion 
is. Upon being told, you put your 
16 



hand in your pocket and pay it, for 
you are satisfied that the demand is 
reasonable. Now, having paid this, 
what are your rights? It was to re- 
build this bridge immediately that 
you gave this money. The people 
have demanded that you should 
make a contribution to defray the 
expense of putting up this bridge. 
Now, have you no rights in the prem- 
ises? Is it not your privilege to de- 
mand and insist that this money 
should be expended at once, for the 
purpose for which it was contribut- 
ed? The bridge is an important one 
to you, and your interests require 
that it should be rebuilt at once. 

Mr. CAMPBELL. But you would 
not force a man to travel over your 
bridge would you? (Laughter.) 

Mr. ESTABROOK. No sir, but I 
would force the proper persons ta 
put it up. Now then there are nu- 
merous individuals who come from 
the old countries. They themselves 
are not in favor of education — it is 
something they know nothing about. 
Do you tell me there are but few of 
them? Go and look along the line of 
any of our great railroads and you 
will see thousands and thousands of 
their names on the pay rolls of these 
roads. They come and settle in 
your midst and raise families of chil- 
dren, whom they put to work if they 
can find work for them to do; if not 
they are allowed to roam the streets. 
The fathers of these children write 
a cross in the middle of their names, 
and have but little idea of the ad- 
vantages of educating their children. 
There are hundreds of these children 
— grown boys — whom I have in my 



242 



RIGHTS OF CHILDREN 



Monday] 



ESTABROOK 



[July 31 



mind now, traveling about our 
streets and can neither read nor 
write and their parents a])undantly 
able to educate them. Do you say the 
parents have nothing to do in this re- 
gard? It Is said this plan in Prus- 
sia is not a success. Why is it not? 
Well, they teach the ordinary branch- 
es to all the children and then they 
make military science the main por- 
tion of their education. What has 
been the result during the past year, 
of France trying to conquer a citi- 
zen soldiery brought up under this 
system of education? Why, after the 
first battle which promised that vic- 
tory should follow the course and 
perch on the banners of the French, 
and down to the capitulation of Paris 
the Germans have been successful 
at every step and have proven that 
the educated citizen soldiery are able 
to protect their country. Now sir, 
let me answer the objection of the 
gentleman from Gage (Mr. Griggs) 
and about those persons who are 
abundantly able in Saunders county 
to give their children the necessary 
education. With such this system 
will have nothing to do, this law will 
never trouble Saunders county as 
long as that state of things exists 
there. About six years ago, in Oma- 
ha, a family heard the cry of a child 
and on searching they found a little 
babe lying in the wood-shed covered 
over with a horse blanket, it was ta- 
ken care of, and it was found out af- 
terwards that a poor deformed girl 
In the city was the mother of it and 
she had taken this plan to get rid of 
it. apparently not caring what should 
become of it. Of course you could not 
make that mothe- .support the child 



for she was unable to support her- 
self. Now in my walks in the city I 
pass that little boy every day as he 
stands on the sidewalk and asks me 
as he does others to give him some- 
thing, and I do it. That little fel- 
low standing there begging for the 
necessities of life, suggested to me 
that the state owes something to 
him and all such. The mother of 
that child married a rough fellow 
who beats her nearly to death. 
Don't it occur to you, Mr. President, 
that that child is already being 
educated and he is only one of of a 
very large class in our state; and by 
whom is he being educated? Do you 
tell me the state does not owe him an 
education? I tell you that the state 
is already educating him- — for what? 
It is educating him for the state's 
prison or the gallows. It is impos- 
sible that he can go on begging for 
twenty-one years and not become an 
inmate of the state's prison. Shame 
and neglect will soon educate him to 
crime. Can you compel the parents 
of that child to educate him? Why, 
sir, that home today is a drunken 
brawl where he is learning nothing 
but crime, and they never think of 
giving him any other education. 
Now let me ask, if you please, what it 
is costing the state to educate this 
scholar? What has it cost to edu- 
cate all those who are today in the 
boarding school of the state just over 
to the south of here? (the state's 
prison.) Again, a positive case has 
been enacted since we have been sit- 
ting on this floor. What is it? A 
man wants his little boy to do more 
than he is able to do, as a pretence 
j and because the boy cannot do it he 



KIGHTS OF CHILDREN 



243 



Monday] 



ESTABROOK 



[July 31 



takes a black-snake — Now think of 
one phrase in this section— "proper 
parental care." — He stands that lit- 
tle fellow upon the hot cook stove 
until the stench was so offensive 
from the burning flesh that the lit- 
tle sister had to open the door, — Is 
that proper parental care? Have you 
nothing to do in such a case? Please 
turn to any law in your state that 
will apply to such a case, any law 
that will take that child away from 
such brutal treatment. The father 
says he must work — and the little 
fellow says to his sister in pleading 
tones "I don't see why father whips 
me, for I have worked all I can." 
But the father not satisfied with 
whipping him through all the out 
houses, whips him into his mother's 
bed room and into the presence of 
the mother, who but a few days be- 
fore had passed through the pains of 
accouchementand there administered 
the last blow that caused that little 
fellow to shut his eyes upon this 
world of sin and wretchedness. If 
there is a way to release that little 
creature, in this state I don't know 
where to find it. This is an excep- 
tional case, it is true, and this is an 
exceptional remedy. Who now 
should educate and care for such a 
child? Should we sit supinely by 
and say to the parent that he can do 
as he pleases — and this is not the 
only case. I can take you to just 
such cases in the city of Omaha to- 
day, and sir, I was conversing with a 
gentleman today who lives in a small 
town in our state, who says there are 
several such cases in his town. I 
will make another suggestion right 
here, you ask what is the right of 



the parents? I will answer, the lit- 
tle child did not bring himself into 
the world, and he is not to blame for 
being here, but being here entirely 
helpless there is no question but 
that the parents owe him food, and 
we say the parents must provide for 
him; but suppose they won't, sup- 
pose they cannot clothe him, then 
the state must. Now then, why do 
you levy all these taxes, amounting 
to between $70,000 and $80,000 a 
year for schools, if it was not done 
to educate that child and to make 
him a useful citizen and an honor 
instead of a disgrace to the state? 

Mr. Pi-esident, I did not intend to 
say so much about this, had it not 
been for the opposition that has been 
raised against it. Let us see what 
there is here to break bones and 
cause so much uneasiness. First let 
me say I am surprised to know that 
my friend from Otoe (Mr. Campbell) 
is going back on us; the first intima- 
tion I had of it was today when he 
made this very able and eloquent 
speech. "The legislature shall re- 
quire by law that every child of suf- 
ficient mental and physical ability." 
Does that compel the child to go to 
school directly. What is next? Why 
it is said everybody in Saunders 
county send their children to school. 
I am glad to hear it my friends, and 
in Saunders county the provision has 
no application at all. Why? "Betw- 
een the ages of six and sixteen years 
unless educated by other means." I 
think I understood you to say that 
in Saunders county they were edu- 
cated by other means, everybody 
sends his child to school there, conse- 



!44 



STATE REFORM SCHOOLS 



Monday] 



ESTABROOK— MAXWELL 



[July 31 



quently this provision will not ap- 
ply there. I think there is some 
sentiment in the Catholic church 
that precludes them from sending 
their children to ordinary schools. 
There is no need there should be any 
fear here, because there is ample pro- 
visions made.. Of course they shall 
see to it that these children are edu- 
cated in their own way, at their own 
school: there is nothing like reli- 
gion in it. The last clause says "no 
system shall be regulated by a re- 
ligious system." Be he Catholic, 
Gentile, Jew, Greek or Chinaman so 
that he educates his child In his own 
w^ay, however he may be educated, 
this law has no operation upon him, 
sends his child to school there conse- 
as I said before, it is only made for 
exceptional cases. There it goes on 
to say they may establish schools for 
the safe keeping of children without 
homes. Some gentleman says that 
looks like putting in prison. There 
is another class to which I will call 
your attention, who iire pretty nu- 
merous right exactly in the neigh- 
borhood where my friend the presi- 
dent lives; they are very often in the 
t'ourt fiileudar. they have been re- 
peatedly there and repeatedly dis- 
missed when they have committed of- 
fenses, because the court could do 
nothing whatever with them; ihey 
are too young to send to jail and Jun 
about the streets. There is not only 
one but I could name six or seven 
families, respectable families too. 
They have been so brought up that 
there is no moral constraint upon 
them. How is the state educating 
them? So soon as they are old 
enough they become residents in yon- 



der penitentiary, and the only reas- 
on some of them are not there now 
is simply because they are not six- 
teon >fars old. Why, says o-ie, dori't 
yen put this into the penitentiary 
clause? I will tell yo'i v.hy. If this 
d' ' sjivor or smack of the penitea- 
tiajy. do you not see what the con- 
sequence would be? Keep a child 
there until he is sixteen and vou 
dismiss him a penitentiary bird in 
disgrace. No man goes there but has 
a smell of the penitentiary about him 
for ever after. Here we have pro- 
vided against it. "We have made a 
place where it is to be safely kept 
and well taught, and when the crim- 
inal boy, or juvenile delinquent 
shall have graduated from it he 
graduates with no odor of criminali- 
ty about him. He has been well 
taught, well raised, and simply 
graduates at the school and gains his 
diploma. He is not among the 
thieves, but graduates there as from 
any other school. The school com- 
mittee spent days and days studying 
this question, and if anybody can fix 
a better scheme, they can have my 
vote. If you can adopt a better 
scheme by which you shall correct 
the errors, and at the same time save 
them from the consequences and 
stains of vice and criminality, I 
would have you do it. I have con- 
versed with many people on this 
subject, and I tell you there is no or- 
ganized opposition to it, but if anyone 
thing has met with joyous approba- 
tion every where it is this section 

four of this article. I know it 

Mr. MAXWELL. If there is no op- 
position to this, why not submit it as 
an independent proposition. 



STATE REFORM SCHOOLS 



245 



Monday] 



ESTABROOK 



[July 31 



Mr. ESTABROOK. Why don't 
you submit the entire educational ar- 
ticle? why not let the legislative 
or the judicial article as a separate 
proposition. 

Mr. MAXWELL. There is nothing 
new in that. 

Mr. ESTABROOK. There is some- 
thing decidedly new for this state. 

Mr. MAXWELL. What is that? 

Mr. ESTABROOK. Eight judg- 
es instead of three, I think that is de- 
cidedly new. 

Mr. MAXWELL. You voted for a 
high salary. 

Mr. ESTABROOK. No sir, I 
voted for $2,500. Let me call at- 
tention to the method by which I 
ascertained the condition of public 
sentiment. I sent out these articles 
everywhere and received responses. 
I was met in various places and 
congratulated on presenting some- 
thing so much needed as this. If we 
say nothing about it to be sure it is 
possible the legislature might pro- 
vide for these cases. How is that? 
Without this scheme is placed in 
this article and made a part of the 
common school system, all the funds 
will be appropriated in another di- 
rection. Not a dollar of the fund in 
any quarter, unless you make grave 
charges, could be appropriated to 
this class of children of the state, un- 
less you make it a part of the com- 
mon school fund. Gentlemen say do 
not drag that down, do not mix that 
with crime. How will you do it? In 
what way can you do it? We fix it 
here so that it shall save the child. 
We educate him, constrain him, 
so far as it is necessary, under and 



by virtue of the power given to the 
state by the common school law. 
Not as wardens of the penitentiary 
do we hold and constrain him, simp- 
ly as officers having in charge funds 
and the interests of education in 
Nebraska. Why appropriate a por- 
tion of the common school fund to 
this? I will tell you. In the first 
place, according to the law as it now 
stands, all fines arising under the 
penal laws, and all license money 
paid for the sale of whiskey, which 
lies at the bottom of most of this 
trouble, they all go to the school 
fund of the county, not of the state. 
Take all these funds levied and col- 
lected before police magistrates and 
justices and all the license money, 
pay them into the school treasury of 
the county. We suppose this system 
will continue, and in addition to the 
funds which shall arise from the 
sale of the sixteenth and thirty-sixth 
sections, there will be superadded to 
it these funds arising from fines and 
license money. If you are going to 
set apart a portion of the public 
funds for the education of this pecu- 
liar class of citizens, can you imag- 
ine one more appropriate than these 
I have named? Is there a more ap- 
propriate fund that could be set aside 
to take care of your little waifs and 
vagabonds, than the funds that shall 
arise from the licenses for the sale 
of whiskey which has made this nec- 
essary? There was one day when I 
was home two weeks ago, two lit- 
tle girls came to me crying as though 
their hearts would break, one about 
eight years old, and the other ten. 
They lived in my neighborhood and 
knew that I held the honorable po- 



246 



STATE REFORM SCHOOLS 



Monday 



STRICKLAND-ESTA BROOK 



[July 31 



Bltlon of Justice of the peace in the 
sixth ward of Onialia.and knew there- 
fore that I might possibly have some- 
thing to do in the way of taking care 
of those who could not take care of 
themselves. So they said, "Mr. Esta- 
brook. won't you please go and put 
my father in jail," and begged and 
besought me to do it. The request 
was of such an extraordinary char- 
acter that I went and enquired into 
It, and there I saw a drunken man, 
not a very common sight, simply a 
drunken man, who had got a devil in 
him in consequence, the devil of in- 
toxication. The mother was earning 
enough to take care of her family, 
was willing to do it if the father 
would only leave them alone. "But 
he so often," she said, in his pres- 
ence, "has got his pay for working on 
the postoffice, gone and got drunk, 
spent his money and come home and 
turned me and the children out of 
doors." That man has been made 
a drunken beast and brute; and 
there are two children, who, if it 
were not for the mother, would be 
absolute beggars at the mercy of the 
people, and this system would take 
care of them, and the money that had 
been paid for the license to justify 
the selling of the whiskey to that 
drunken, bruted man, to pay for the 
education. I propose to see they are 
sent to school, or if they are left beg- 
gars, that there shall be some au- 
thority to take them tenderly, not 
roughly as you would a criminal, 
but tenderly, carefully, and exercise a 
guardian, fatherly control over them. 
Don't you all recall hundreds of such 
Instances? What is to become of those 



girls, I ask my friend from Doug- 
las. 

Mr. STRICKLAND. I would have 
a guardian appointed by the court. 

Mr. ESTABROOK. You would 
turn them entirely away from care. 

Mr. STRICKLAND. I would have 
a good man like Gen. Estabrook to 
attend to them. 

Mr. ESTABROOK. Gen. Esta- 
brook don't want it. He has not 
the money to do it. The town should 
take them. And you show me the 
paragraph in your laws which pro- 
vides for that. This proposes to 
take the mendicant, and the vaga- 
bond and the vagrant, which the peo- 
ple own, and for which you propose 
the people shall pay taxes; and not 
only take care of and provide for 
them, but to impart the necessary 
education. 

Mr. ROBINSON. Does not this al- 
so provide that every other child as 
well as mendican 

Mr. ESTABROOK. Yes. All who 
have sufficient physical, mental abili- 
ty. We have a sufficient fund to take 
care of these waifs and we say we 
shall do it. We say that, instead of 
producing a record like New Hamp- 
shire did, that the proportion of 
those who can neither read or write, 
has grown greater and greater. Have 
you no sensibility when you look 
at your own record, and see that a 
certain portion of the population 
were not able to read and write? 
Would it not be a nice thing to find 
a number of children in the state — 
Adjournment. 

Mr. GRIGGS. I would like to 
ask the gentleman to allow me to 



ADJOURNMENT— PRAYER 



247 



Monday 



ABBOTT— STRICKLAND-MOORE 



[July ai 



make a motion to adjourn until to- 
morrow morning at eight o'clock, 
and that then he shall have the 
floor. 

Mr. ROBINSON. I move to amend 
by making it eight o'clock this 
evening. 

Mr. CASSELL. I move to make it 
nine tomorrow evening. 

The convention divided and the 
motion was not agreed to. 

Mr. ROBINSON. I would like to 
ask a question. When we engaged 
these gentlemen to report the pro- 
ceedings of this convention our rules 
said we should adjourn from twelve 
till two and from six till ten. We 
contracted with them under those 
hours. Are we going to impose ex- 
tra duties upon them and not allow 
them anything? I want gentlemen 
to take this thing in hand ■ 

Mr. KIRKPATRICK. I deny that 
this convention did decide anything 
of the kind. 

Mr. ABBOTT. I respectfully sub- 
mit to the gentlemen of this conven- 
tion that these gentlemen are enti- 
tled by their contracts to pay for 
night sessions. I hope they will be 
remunerated. 

Mr. STRICKLAND. Gentlemen 
can work tonight whether the re- 
porters work or not. We need only 
have our votes recorded; why not 
finish this? We can gain a half a 
day tonight. 

Mr. ESTABROOK. You are not 
going on without reporters, are you? 

Mr. McCANN. Just the question 
I raised on Saturday morning. 



Adjournment Again. 

The convention divided and the 
motion to adjourn until eight o'clock 
tomorrow morning was not agreed 
to. 

Mr. STRICKLAND. I move we 
take a recess until eight o'clock this 
evening; and that the gentleman 
from Douglas (Gen. Estabrook) have 
the floor at that hour. 

Mr. KIRKPATRICK. I wish to 
be excused from being here tonight. 
There is so much noise made and 
little dignity observed, and I am op- 
posed to night sessions. 

Mr. McCANN. I move to adjourn 
until eight and a half tomorrow 
morning. 

The CHAIRMAN. The motion is 
not in order. 

Mr. ESTABROOK. I take an ap- 
peal from the decision of the chair, 
if this is his decision. 

Mr. MOORE. I move we adjourn 
till seven o'clock in the morning. 

Mr. GRAY. These motions are 
not in order. There is one before 
the house and until that is disposed 
of there is no other in order. 

Mr. MOORE. I move an amend- 
ment that the time be extended un- 
til seven o'clock tomorrow morning. 

The CHAIRMAN. The motion to 
adjourn till seven in the morning has 
precedence. 

The convention divided and the 
motion was not agreed to. 

Mr. LEY. I move we adjourn un- 
til eight this evening. 

The convention divided and the 
motion was not agreed to. 



248 



STATE REFORM SCHOOLS 



Tuesday] 



ESTABROOK 



[Autrust 1 



Mr. WEAVER. I move we ad- 
journ until half past eight tomor- 
row morning. 

Mr. STRICKLAND. It seems the 
great difficulty in this matter is these 
reporters. 

The convention divided and the 
motion was agreed to. 

So the convention, (at six o'clock 
and thirty-five minutes) adjourned. 



THIRTY-SECOND DAY. 

Tuesday, July 1, 1871. 
The convention met at eight 
o'clock and thirty minutes and was 
called to order by the president. 
Prayer. 
Prayer was offered by the chap- 
lain, as follows: 

"Our Father, which art in heav- 
en, lead the convention today, we 
beseech Thee. With reliance upon 
a Divine wisdom. May they who sit 
here, seek justice and truth. Move 
them, to this we pray. Forgive us 
our sins, and give unto us all a 
good of heaven. Amen. 

Reading of Journal. 

The journal of the last day was 
read and approved. 

Leave of Absence. 

Mr. CURTIS. Mr. President. I 
ask leave of absence for my colleague 
Mr. Stewart on account of sickness. 

Leave granted NEM. CON. 

Mr. ESTABROOOK. I ask leave 
of absence until tomorrow noon for 
Judge Lake. 

Leave granted NEM. CON. 
Special Orders. 

The PRESIDENT. The special or- 
der for the hour is upon the motion 
of the gentleman from Cass, to strike 



out section four of the report of the 
committee on education, school 
funds and lands. The gentleman 
from Douglas, (Mr. Estabrook) has 
the floor. 

Mr. ESTABROOK. Mr. President. 
I had nearly concluded yesterday, 
when I was stopped, all I intended to 
say on this subject. And it remains 
for me now to say a few words to 
the proposition which was under con- 
sideration: It is that its main fea- 
tures and designs may not be lost 
sight of. It may be a new proposi- 
tion as a provision in constitutional 
law; and as being new, and a pro- 
position to make it a part of the 
fundamental law, it may excite, 
somewhat, the distrust of the tender- 
footed and doubting. It may not 
commend itself to those whose atten- 
tion has not been turned in that di- 
rection. But it seems that in read- 
ing over a few lines only of which the 
proposal consists, there can be no 
question as to its significance or pro- 
priety. In a few words, it proposes 
to single out a few, in comparison, 
I admit of the children of the coun- 
try; those who have been thrown 
upon the world without their knowl- 
edge or consent or design — those 
who are unwelcome birds into this 
vale of tears; those who are so unfor- 
tunate as not to have those to care 
for them or give them the ordinary 
privileges and advantages of civili- 
zation. I come then, sir, with no for- 
mal address in their behalf. I de- 
sire to use no studied phraseology in 
the advocacy of a matter of this kind. 
If I can utter a few earnest words 
from the depths of an honest heart 
in this regard; on behalf of the ju- 



STATE REFORM SCHOOLS 



'249 



Tuesday] 



ESTABROOK 



[August 1 



venile vagrants, and the infantile 
vagabonds of the land, I shall feel 
I have done my duty in the prem- 
ises. There are those in abundance 
who will advocate the cause of the 
rich and shudder at the idea that you 
should give as much as one penny for 
those who are properlj^ cared for, 
the children of the rich and well-to- 
do; the facility for aiding them into 
developing of the immortal parts 
within them; but who shrink at the 
proposition that a portion of this im- 
mense bequest should be paid to re- 
deem from vagrancy the waifs on our 
public streets and alleys. Aj'e, sir, it 
seems difficult to turn the minds of 
gentlemen, some of them, to the con- 
templation that here are a class who 
are being educated for some destiny; 
but who pronounce some condemna- 
tion on them and send them to our 
penitentiary in yonder valley.. No 
contemplation to provide those who 
should pronounce their doom upon 
them to finally consign them, but 
there is danger, when it is proposed 
to furnish somewhat of the "ounce 
of prevention" which is said to be 
worth a "pound of cure." It is urged 
liere that the criminal business 
throughout the country is on the in- 
crease. So, perhaps, it is and will be 
unless we adopt some means of pre- 
venting it. By this proposition it is 
proposed, merely, to spend a small 
portion of the school fund for the 
bringing up properly of these chil- 
dren who will, otherwise swing at the 
end of a rope, perhaps. Sir, it has 
been urged here by gentlemen- — and 
I believe it was a part of the speech 
of my learned friend from Otoe (Mr. 
Campbell) that there was danger 



that the public funds would be 
squandered. Why, sir, my reply to 
all such arguments is, that while 
such as you and I will care for our 
offspring whether we have the aid of 
a public fund or not, it is OKr duty 
to pick up these little unfortunates 
who have been hardly dealt with by 
fortune, but who yet have in them 
the elements of manhood. It will 
pay us to spend a portion of our 
school fund in raising these little 
waifs and placing them in position 
to become respectable members of 
society. If need be I would expend 
every dollar of the fund in the edu- 
cation of these children, leaving the 
others to be cared for by parental au- 
thority. I am in earnest about this 
thing and it amazes me to see the 
opposition there is to this provision 
for taking care of the foundling. "We 
don't propose to do anything with the 
children of the rich and powerful. 
We propose to take a portion of the 
public bounty and bestow it upon the 
poor waifs who have had an unwel- 
come birth into this world. It is 
said that the constitution cannot be 
accepted with this provision in it — 
that the people of this great state 
of Nebraska will reject our constitu- 
tion simply because it contains this 
humane, benevolent provision? I 
wonder if this be true In talking 
about this thing with my good old 
friend here (Mr. Campbell) he tells 
me a story as an illustration. It is 
of two doctors, one of whom was an 
educated physician and the other 
was a quack. The educated doctor 
found his rival had plenty to do, 
while his own business was falling 
off. He inquired of the quack how 



250 



STATE REFORM SCHOOLS 



Tuesday' 



EST A BROOK- VIFQU A IN 



[Aug-ust 1 



this was, "you have plenty of busi- 
ness, while I have nothing to do." 
Tho quack replied, "come and sit 
where I tell you and at night tell 
nie what you have seen." The doc- 
tor did so, and told the quack he had 
seen nothing all day but two philoso- 
phers. The crowd passed by all day 
long, and seemed not to take time to 
think and only these two stopped to 
speak to him. "Well," says the 
quack, "that represents our suc- 
cess in life: you go with the two 
philosophers and have but little 
company: while I go with the crowd 
who do not stop to think." I think 
this will apply here, for I think the 
majority who oppose this proposition 
do not stop to think. I may be mis- 
taken in my views of this proposi- 
tion, Mr. President, but I know that 
I for one would do all I can to bring 
out the latent power which lies in 
these children, as much sir, as in 
the breast of yours or my offspring. 
My colleague has proposed to strike 
out the mandatory words and leave 
it optional and discretionary with the 
legislature to carry this proposition 
into effect, and I am willing this 
should be done, if it is thought best. 
Then if the people of Nebraska pro- 
pose to let these children alone to 
take care of themselves, I wish to sell 
out and leave the state. Under our 
present statutes there is nothing 
which will apply to these little ones 
who run about our streets — not even 
juvenile criminals: you must not let 
them run at large. 

I would not expel this proposition 
from the constitution proper; I 
would leave it as suggested, to leave 
it to the legislature that they may 



use their own judgment in this mat- 
ter. On the other hand I admit 
there may be something favorable in. 
the idea of leaving it to a vote of the 
people. But there is this objection 
to this course: it indicates and car- 
ries with it a degree of doubt as to 
whether the measure is politic, and 
upon that point, I for one have no 
doubt nor do my constituents, with 
but few exceptions. Do you know 
Mr. President, that we have among^ 
us religious bigots who are opposed 
to our free school system? They 
believe that children should be 
educated in a certain religion 
and this state does not propose to 
allow religious matters to become 
mixed up with our public schools, 
they object to them I know that, 
while it may be true that there are 
some who would oppose it, I know a 
large proportion of my constituents 
will favor the proposition. But of 
course if the section is submitted 
separately, it will put the friends of 
the measure upon dry goods boxes. It 
will <ihallenge debate and attract 
public attention. But it seems to 
me it is carrying with it doubt to 
submit it in this way. But if it is 
left to the legislature to carry this 
proposition into effect, it should be 
left with an appropriation of funds 
to do it with. I suppose the legis- 
lature will have plenty to do with 
this fund and if we don't put this in 
the constitution the funds will be 
disposed of otherwise. It is for the 
convention to say which of the two 
courses proposed for the disposition 
of this section shall be adopted. 

Mr. WILSON. Mr. President. It 
seems to me this thing is going too 



COMPULSOKY EDUCATION 



251 



Tuesday] 



VIFQUAIN 



[August 1 



far. We are using the people's time 
for purposes that are of no use at 
all. The gentleman who spoke last 
has exhausted two hours and forty 
minutes to no purpose, therefore I 
move the previous question.. 

The PRESIDENT. The gentleman 
who made the motion to strike out 
the section, has spoken but once. 

Mr. MOORE. Mr. President. There 
is a gentleman here — Mr. Vifquain — 
who has prepared a written argu- 
ment on this question. It is short, 
and I think he should be allowed 
the privilege of reading it. ("Leave, 
leave.") 

Mr. VIFQUAIN. Mr. President. I 
desire to say a word in this matter, 
but first of all, let me apologize for 
having written my observations on 
this subject. I have done so for two 
reasons, first because it is a subject 
that must be carefully considered 
and second, because my familiarity 
with the American language is not 
sufficient to follow my ideas as they 
flash to my mind in my native dia- 
lect. I am in favor of the propo- 
sition, Mr. President, not because the 
Germans have defeated the French, 
some one tried to make me believe 
yesterday. No, sir, for I do not be- 
lieve in that defeat as being right 
but because section four seems to me 
to be just, and by the by, as allusion 
has been made to the recent defeat 
of the French (may God bless them). 
I desire to say that it was not be- 
cause the Germans were better educa- 
ted. The secret of the victory was 
in revenge. You have not forgotten 
the victories of the Great Napoleon, 
and the dishonor of Sedan can never 
tarnish the glory of Marengo, the 



Pyramids, Austerlitz and the Mos- 
kawa. These legions taken from 
France whenever and wherever that 
might be, were led to victory be- 
cause there was some one that could 
lead them. Napoleon did not care if 
the legions arrayed against him were 
taken out of the universities of 
Heidleberg, Gottingen, Berlin or 
Dusseldorf, Education in the mass- 
es had nothing to do with it, as 
long as Napoleon was there. His vic- 
tories sir, were destiny, so was his 
fall at Waterloo. Social philosophy, 
Mr. President, teaches that every 
country contains A plus B, not A who 
pays a tax and B who pockets it; by 
A plus B, I mean the man of action 
plus the man of thought , these two 
multiplied one by the other gives the 
glory of the times; that man Luther 
plus Shakespeare, Richelieu plus 
Corneille, Cromwell plus Milton, Na- 
poleon plus Napoleon, for in him- 
self was contained the man of action 
and the man of thought of his coun- 
try. Napoleon was a national unity 
so to speak! But to return to this 
subject, the question to be decided 
is, shall we or shall we not have 
compulsory education. I am glad 
to see opposition to the measure, for 
it will give us who are in favor of it 
occasion to show the benefits that 
will arise out of the same. Some 
members raise objection because 
they say it is unbecoming in a coun- 
try like ours, to force people to get 
their children educated. Strange in- 
deed, that such an objection should 
be made, for it is just as criminal 
for a man to keep the soul of a 
child in the darkness of ignorance 
as it is for him to cruelly and brutal- 



252 



COMFLTLSOUY EDUCATION 



Tuesday 1 



VIFQUAIN 



[August 1 



ly abuse him. More so I dare say. 
Yet does the law of the land allow 
one to unjustly abuse a child? Does 
any one in this convention com- 
plain of this law? No sir, and yet 
we hear in this convention some 
gentlemen say that such a proposi- 
tion as compulsory education is noth- 
ing else but coercion, oppression. Co- 
ercion indeed; well I am in favor of 
coercion. Then the gentleman from 
Douglas (Gen. Strickland) told us 
in a very few plain words yesterday 
that he would take his gun and 
shoot any man that would come and 
assault the sanctity of his home, upon 
this proposition. Well I have nothing 
to say against such a strong argu- 
ment except this, that when Gen. 
Strickland or any other man will re- 
sist the laws of the land I will be 
one of the boys that will take my gun 
(for I have a gun somewhere too) 
and I will go to his house and insult 
his own sanctity and whip him and 
shoot him if necessary, just as he and 
I have done with some other rebels 
not very long 7go. This proposition 
does not intend to force a man to 
send his children to a school as long 
as he takes proper care that they 
are educated under his own super- 
vision, whenever and in whatever 
way that may be. No. sir. that is 
not the proposition, the proposition 
Is this, (using the sweet language of 
the gentleman from Douglas, (Mr. 
Estabrook) to take up this little 
waif, this little stray running at 
large into the paths of ignorance, 
which is bound sooner or later to 
conduct him into the highway of 
crime, to tenderly care for him until 
his mind is so moulded as to justify 



his presence in society, and I for one 
call this a sacred mission. Sacred 
indeed, three times sacred, for in the 
growing generation is the hope and 
welfare of the future. Does any 
one pretend to say that our proposi- 
tion is an abuse? I will suppose it 
is, whom does it abuse? Those who 
are deaf to all natural feelings, he 
who forgets the mission given to 
man, by his God, when that man be- 
comes a father, him who uses his 
sexual feelings for the sole sake so 
to speak, to throw into society in- 
creased corruption or increased mis- 
eries. He is the one whom this pro- 
position abuses and where is the 
man in this conventiori, who can 
conscientiously call it an abuse? 
Perhaps they will also call it an 
abuse upon our freedom, upon our 
sanctity, to levy a tax upon us, to 
build states prisons, into which we 
are to be confined if we become 
criminals, and where do these crimi- 
nals come from? Why, ninety- 
nine one hundreths of them owe 
their misfortune to the criminal 
carelessness of a parent. And I am 
somewhat surprised to have heard 
the remarks of the gentleman from 
Lancaster (Mr. Robinson). Does he 
expect every German to be a Schil- 
ler or a Goethe? Does he expect 
every Frenchman to be a Montes- 
quieu or a Descartes? Does he expect 
every Englishman to be a Milton or 
a Peel? Is he not somewhat surpris- 
ed that every American is not a Web- 
ster or a Clay? I thank God, sir, that 
he is allowed in this matter of edu- 
cation to even establish a proposi- 
tion between the few that have ge- 
nius and the masses of the people; 



COMPULSORY EDUCATION 



253 



Tuesday] 



VIFQUAIN 



[August 1 



and it will be a great day for us here 
in America when we be allowed the 
same for it is the only thing in 
which we are behind them. Let him 
remember sir, that in this coun- 
try genius is not so lightly appreciat- 
ed as it is over in Europe, it is because 
there is not so much education 
among the many here ^aad that the 
splendor of talent has trouble to 
send its rays or shining lights across 
the impenetrable cloud which is 
called ignorance. In his speech last 
evening the same gentleman did as- 
sert that there was no such a thing 
as "an absolute right," has he for- 
gotten then one of the four natural 
laws? Has he not read somewhere 
that the "something natural which 
inspires one to seek food" is a natu- 
ral law. I refer him to Mortesqi:iieii 
and in as much as the gentleman is 
a lawyer he is bound to accept him 
for authority; but who did ever hear 
a gentleman discuss absolute rights 
and refer us to Mr. Buckle? Who 
in the name of God, ever heard a 
lawyer before cite such an authority? 
I have read much Mr. President in 
several languages and in several 
Darts of the world, but I never heard 
about that gentleman, and if it is a 
natural law to seek food it becomes 
an absolute right for a child to have 
it and who is going to give it to him? 
Society has made it an absolute right 
that the body should be covered 
■Vfith some rags at any rate. I say 
this is an absolute right because 
your laws will confine into your jails 
any one who should claim it a natu- 
ral right to show his nakedness upon 
the streets in full daylight and I be- 
lieve the law stands good in moon- 



shine. Answer the question that was 
made to you by the gentleman from 
Otoe (Mr. McCann) in straightfor- 
ward manner and do not fall back 
with a very lame answer upon our 
declaration of independence, that 
most sacred and most absolute right 
of a republic like ours; who is going 
to feed and clothe the child if the 
parent does not do it? Why the na- 
tion that should not do it has no 
freemen for citizens, but she has 
slaves and we are freemen and God 
knows we love the nation because 
our nation is another mother to us, 
it is our providence in this life. I 
apprehend that the difliculty with the 
gentleman and with some others is 
to make no difference between natu- 
ral laws, political laws and civil laws. 
The gentleman from Lancaster tells 
us further that our school houses 
are good for nothingi, our system is 
worthless. Just so. and why? Be- 
cause we do not take hold of the 
matter in the proper way; because 
we are somewhat careless, that is the 
reason, we want compulsion in this 
matter. They admit it is somewhat 
better in the great cities, and why 
is it so there? Because there is al- 
ready a little more compulsion there, 
upon those who desire to keep their 
proper station in society. I have 
heard a gentleman on this floor say 
that we should have the system of 
compulsory education because Prus- 
sia has it. Do we believe in the Bi- 
ble? Because an Englishman does? 
Although I am a member of the 
committee who reported this bill Mr. 
President, I am not the one that can 
claim the honor of having introduced 
this proposition but now that the 



•254 



COMiHLSOUY EDUCATION 



Tuesday] 



VIFQUAIN— MAX WELL 



[Aujrust 1 



proposition Is before you I am some- 
what proud to stand by it, and if I 
was not afraid to intrude too long 
upon the time of the convention, I 
would give you in detail the work- 
ing of our Elymosynary schools in 
France. Sufficient for me sir, to tell 
this convention that such an estab- 
lishment is not only self sustaining, 
but that when well administered it 
is a matter of revenue to the state. 
Sufficient for me to tell you sir, that 
some of our best men have stepped 
out of its portals, for it has given an 
opportunity to the nation to enlight- 
en the minds and to cultivate the 
souls of many who without this bene- 
ficent help would have grown up in 
ignorance, perhaps vice. I am de- 
sirous to see the proposition remain 
as it has been amended in the com- 
mittee of the whole. I hope it will 
remain in the body of this constitu- 
tion so that the prejudices of ignor- 
ance will have no chance to destroy 
this good work by submitting it in a 
separate proposition. The lily Mr. 
President, is not always, yet has it 
not always the same charms? 

Mr. MAXWELL. Mr. President. I 
will endeavor to occupy as short 
time as possible 

Mr. ESTABROOK. Mr. President. 
Is it to be understood that this clos- 
es the debate? 

The PRESIDENT. That will be a 
question for the convention. 

Mr. MAXWELL. Certain gentle- 
men it is said are disposed to influ- 
ence the people against this measure. 
I am not willing to accept that our 
constituents are such as will accept 
a bad measure or oppose a good one 



because of any influence. Now, Mr. 
President, the proposition made by 
gentlemen on the other side and the 
only one is this, that the child is 
educated by the tax and as a conse- 
quence the right to force that child 
into the schools prepared by those 
taxes. My friend from Douglas (Mr. 
Estabrook) has referred under this 
head to the building of a bridge. I 
think the gentleman from Otoe (Mr. 
Campbell) answers that completely, 
that the state may build a bridge, 
but it cannot compel a man to travel 
over it. No one will claim that the 
state can compel that man to travel 
over this road or that. They can do 
as they please. Still those are sup- 
ported by public tax just as much 
as any common schools are sustained. 
This tax is a matter of short dura- 
tion. It will be but a few years un- 
til our school fund will be sufficient 
to sustain the schools. The moment 
the tax ceases then the right of the 
state will cease, but is the premise 
true? Is the proposition they 

make true? Now when parties come 
in here and seek to show that com- 
pulsory education is necessary, it is 
for them to make out clear cases, to 
show the necessity of this change. 
They cannot do it by pleading to 
our sympathies, talking about every- 
thing else except the matter in is- 
sue. They must show that ignorance 
is on the increase, that our schools 
are valueless under the present sys- 
tem. Have they done this? Not a 
single man on this floor on the other 
side has claimed that ignorance is 
on the increase, no one has claimed 
but that our schools are valuable. 
Why is this matter sought to be put 



COMPULSORY EDUCATION 



255 



'Tuesday] 



MAXWELL 



[August 1 



in this constitution? They tell you 
the state has the right to preserve 
itself. Who has shown or contended 
for a moment that the state is ia 
danger of suffering? Let us have a 
few facts bearing on this to show 
the danger to the state unless this 
measure is adopted. Why do they 
not show the facts to substantiate 
their theory. All through the west 
we have educational institutions, we 
have one here in this place, a colle- 
.giate institution in Nebraska City, 
and an institution at Omaha. Now 
^while our land is filled with schools, 
Tvell sustained, and teachers well 
paid, it is sought to engraft a provis- 
ion in our constitution to take the 
•child away from the parent; they tell 
lis here that the state has the right 
to take charge of the child; if you 
<once grant this doctrine to be right 
-where are you going to stop? If you 
once establish that as a fundamen- 
tal principle, then the father has no 
control over the son; nor the mother 
over the daughter, and if they can 
force them into a school cannot they 
force them into a reformatory insti- 
tution or prison? The gentleman 
goes on and tells you that thousands 
of people on our public works are 
unable to read or write. Perhaps 
there may be a few, but are their 
children unable to read and write? 
I think you will find it very hard to 
find a family in any northern state 
-where the members of it ^re not 
able to read and write.. I have found 
It so. He goes on to tell you that 
the conquering of France by Ger- 
Tnany was due to the superior intel- 
ligence of the German soldiers. Is 
this true? Has that doctrine been 



true in history? How did we find 
it in Rome? Was not Rome at the 
time the Goths and Vandals overrun 
it the most intelligent country in the 
known world? The same hosts from 
Germany overpowered Rome and de- 
stroyed civilization. How is it in 
Prussia? In the time of Frederick 
the Great, Prussia was the most war- 
like nation in Europe. She fought 
three nations at the same time, Rus- 
sia, with army superior to that of 
Prussia, Austria with a large army 
and France with an army equal to 
nearly both the others.. Frederick 
extricated his army and defeated 
each one of those armies. We find 
that the great Napoleon swept 
through Prussia like a whirlwind 
and defeated Prussia, but it was only 
a momentary shocH they were de- 
feated by his movements taking them 
unprepared. It is superior general- 
ship that gains battles. Even in 
France in the late war, was it not 
superior generalship that gained the 
victory of the Prussians. Prussia 
had two soldiers for every one that 
France had. France had no real 
army such as she supposed she had. 
She supposed she had 500,000 men 
and had only 300,000. How was it 
with the Prussians? They sent their 
legions against the French and de- 
feated them at every single point. 
There was no point I remember of 
where the Prussians and the French 
fought man to man. The same in 
our own war here; where northern 
men were pitted against southern in 
front of Richmond and until superior 
generals were sent there, who un- 
derstood the ground on which he 
went, a man in whom the soldiers 



*J;)t; 



COMrULSORY EDUCATION 



Tuestlnyl 



MAXWELL 



[August 1 



had confidence, they did not suffer a 
defeat. Our men were the most edu- 
cated and still for three long years 
the north suffered defeat before 
Richmond. The right man came 
thoufih at last and by managing the 
army in the way he did secured 
success. Generalship wins battles 
and nothing else, so that we can 
claim nothing for protection in a 
military point of view, because in 
that regard we cannot claim compul- 
sory education being necessary for 
the defense of the state in a military 
point of view. We are told a very 
pathetic tale about these waifs run- 
ning on the streets of Omaha. Those 
tales told this convention might be 
very appropriate in appealing to 
their benevolence to have them con- 
tribute something to provide an in- 
stitution for their care, but it seems 
to me these few waifs wandering 
about the streets of Omaha, these 
few exceptions to the general rule 
should not be urged as a reason why 
the children of this state should be 
compelled to go to school. The argu- 
ment falls short. The gentleman goes 
on and tells a very pathetic tale 
about a father whipping his son to 
death. The gentleman does not con- 
tend this was an ignorant father, or 
that the child was not educated, he 
might have been an intelligent man, 
supposing he was now how long is it 
since a minister in New York whip- 
ped his little son to death because he 
would not kneel down and pray. 
These go to show how hard the gen- 
tleman is pressed for argument. He 
goes on to tell about the rights of 
parent and child. What right has 
the child only that the parent is li- 



able for his necessaries, liable to pro- 
vide as his circumstances will admit, 
for the food and clothing and such 
education as he is able to give him. I 
do not desire a race of men to grow 
up here who are the wards of the 
state. There is something more than 
a mere education necessary, they 
have to control themselves, have to 
learn self reliance. I would give 
more for a man who has gained his 
energy by his own effort than for 
men who have no self reliance and 
know nothing about the elements 
that lead to success. If you want to 
make men of them, who can think 
for themselves, who can pursue their 
own avocations, you must teach, them 
to rely upon themselves, and you 
never can do it by making them 
wards of the state, educating, feeding 
and clothing them at the expense of 
the state, you take away all manly 
I independence, and that objection 
alone would be sufficient to defeat 
this. He says it would not do to 
send them to the penitentiary; his 
language shows that they ought not 
to be put in a school where children 
not accused of crime are placed. His 
own admission shows that there 
ought to be a reformatory school, 
where only those who have commit- 
ted some offense are sent. Do you 
propose to place children ragged and 
dirty with the children that pilfer? It 
looks that way. It is going to make 
no distinction between poverty and 
crime; poverty in his view is crime. 
He proposes to place together in a 
reformatory school; his proposition 
means to reform the poor boy be- 
cause he is ragged and dirty. We 
propose and are ready to place a 



COMPULSORV EDUCATION 



25T 



Tuesday] 



MAXWELL 



[August 1 



proviso in the constitution, for erect- 
ing a reformatory institution for 
those children accused of crime, and 
propose to keep that class to them- 
selves; we do not propose because 
a boy is poor to put him in with a 
villian. Does the gentleman propose 
to unite them together, so that the 
poor boys may learn the vices of the 
vicious one, because any one famili- 
ar with our public schools knows that 
vices are communicated from one 
scholar to another. The gentleman 
goes on and states that we have pro- 
vided for this class of schools, to 
unite these three together. The de- 
velopment and instruction of those 
who have not proper care. And the 
gentleman in order to put the matter 
beyond all controversy goes on to 
tell of a respectable family of boys 
who were in the habit of stealing. 
He tells you there is no organized 
opposition to this measure. That is 
true. But does the gentleman mean 
by putting in that word "organized" 
to admit there is opposition? There 
has not been time to organize. It is 
only a proposition as yet. Now, Mr. 
President, in regard to these poor 
waifs. Does not onr present law 
provide for them; that the overseers 
should take care of those children. 
There is no necessity of filling our 
constitution with this.. The gentle- 
man tells you I voted for eight judges 
and giving jurisdiction to probate 
judges. It is true. I did. I voted 
for an independent supreme court. I 
voted for five judicial districts for 
this reason — that it seemed to be 
the wish of the people to have five. 
As to county courts that measure is 
not what I would like to have, but 
17 



I accept what the majority accepts. 
As to crime being on the increase, I 
think the gentleman's own statement 
shows, on the contrary that it is be- 
ing diminished. And the vote that 
county courts have jurisdiction in 
certain cases is only for conven- 
ience, more particularly in the new 
counties. He tells you he is elected 
and sent here, and whether he repre- 
sents his constituency or not they 
must take the chances. Now, sir, 
we have come here as representatives 
of the people, to frame a constitution 
tor their approval. The gentleman 
wandered entirely from the subject 
all the way through. It is simply a 
matter of expediency as to whether 
we submit this in the constitution or 
separately. That is the question. It 
does not necessarily follow that we 
should go into the merits of the 
case. Why those who are opposed 
to submitting it as an independent 
proposition are opposed to the meas- 
ure. And there are many of thle 
people opposed to it. I do not think 
they will submit to compulsory edu- 
cation, and have the school fund ap- 
propriated to the building of refor- 
matory institutions. Let us look at 
the fourth section. It provides that 
they may establish schools for the 
safe keeping, education and em- 
ployment of all children under the- 
ages of sixteen years, who are des- 
titute of proper parental care, or 
who are growing up in mendicancy, 
ignorance or vice." This proposes 
to place in the same school all who 
are situated as stated in the section. 
It proposes to support those institu- 
tions entirely out of the school fund. 
We received this school fund in trust 



25S 



COMPULSORY EDUCATION 



Tuesday! 



MAXWELL 



[August 1 



from the United States, for the pur- 
pose of educating the children of 
the state. But here it is proposed to 
differ from that. That reads, in 
fact that they may establish houses 
of reformation for the "safe keep- 
ing." You must put them in prison 
if they are to be safely kept. That 
is what it means. What tribunal is 
to ascertain where this is the case? 
Who must distinguish? So that 
each one of these are condemned 
upon their face, and .sent to this pris- 
on, and the prison to be sustained 
out of the common school fund of 
the state. We have but one city, as 
far as it appears, that needs such an 
institution. The gentleman from 
Douglas contends that there are such 
waifs in Omaha. No one else has 
contended any such thing. So there 
is one institution that must be built 
at once. If we erect a prison we 
must provide by general appropri- 
ation for such a place. Michigan has 
established a house of reformation, 
where those children who are con- 
victed of petty offenses are sent. 

Mr. President is it best for us, 
coming here together as friends from 
every part of the state, to submit a 
proposition of this kind in the body 
of the constitution? If the people 
are so eager to adopt it why not sub- 
mit it independently? We need a 
new judiciary, and they want to car- 
ry a measure like this along with the 
constitution, and they know the peo- 
ple are opposed to it. This idea 
originated in the middle ages, and 
the old spirit is sought to be revived. 
England has put aside all those in- 
stitutions, and Scotland has put to 
flight the old established form of 



church and people created and sus- 
tained churches of their own. The 
same system was attempted in Mas- 
sachusetts. Men were compelled to 
pay whether they went to church or 
not. And it is sought to re-enact the 
same principle here in regard to our 
schools. And I say that the men 
who advocate this must show some 
good reason for such advocacy, when 
our people are becoming better edu- 
cated and more enlightened every 
day. The gentleman says it will be 
necessary, if this is put into the con- 
stitution, to convince the people that 
is necessary. Why, that proves the 
thing is wrong and that there 
is doubt about it. Is it right to ar- 
gue the matter before the people to 
convince them the thing is right? 
I say no. The people will not have 
this thing forced upon them. They 
are willing to listen to argument, but 
they will not be forced and the 
chances are if this thing is submit- 
ted in the constitution it will be 
rejected. Being desirous that this 
constitution be adopted, I hope this 
proposition will be struck out of 
this article and submitted as a sepa- 
rate article. 

Mr. MOORE. Mr. President. I 
call for a division of the question. 

Mr. WILSON. The gentleman is 
out of order. 

Mr. BALLARD. Mr. President. I 
would like to say a word before I 
vote, if I be allowed permission. 
("Leave, leave.") 

Mr. BALLARD. I will vote to 
strike out the proposition from th« 
constitution. I do this, sir, becaus* 
I am a strong advocate of reforma- 



COMPULSORY EDUCATION 



259 



Tuesday] 



WAKELEY- WILSON 



[August 1 



tory schools. I wish a school of this 
character established at once, and 
to have every member of this body 
put in it immediately, in order 
to learn three things, 1st, when 
to make a speech; 2nd, what to say; 
3rd, when to quit. 

Mr. WAKELEY. Mr. President. I 
would ask that I be allowed ten min- 
utes to give to this question. 

("Leave, leave.") 

Mr. WAKELEY. I know just how 
long a time I will need, thanks to an 
hours's work last night. I have put 
my ideas on paper. The reporters 
need not report what I am about to 
read, as I will furnish them a 
copy. 

Mr. WILSON. Mr. President. I 
call the gentleman to order; the 
previous question has been called 
for. 

Mr. WAKELEY . If the gentle- 
man don't want to hear me, Mr. 
President, he can go into the ante- 
room. 

Mr. WILSOX. Mr. President. I 
have listened to too many remarks 
now. I was as well prepared to vote 
last Saturday as I am now. 

Mr. WAKELEY. The gentleman 
from Johnson (Mr. Wilson) has the 
advantage over the other members 
of the convention in "perspicasity" 
and "perspicuity." (Laughter.) 

Mr. President. It is a right of 
every human being — an inherent 
and indestructible right — that all the 
powers and the faculties, bodily and 
mental, with which his Creator en- 
dowed him shall be duly developed. 



In proportion as the mind is no- 
bler than the body — as that which is 
immortal transcends what is mortal 
and perishable — by so far is the duty 
of the state higher and more impera- 
tive to provide for the care of the 
mind, than for the needs of the body. 

Upon what principle is it main- 
tained that the government may and 
should compel provisions to be made 
for physical necessities, and comforts, 
but has no right to forbid that the 
human mind — that emanation from 
Infinite intelligence — the attribute 
which links man to his God, may be 
starved, and dwarfed, and brutal- 
ized? Shall the intellect of man, 
capable of all high development; of 
splendid achievement in letters, in 
are, in science, in eloquence, in 
statesmanship — shall this be left 
from poverty, from neglect, from the 
caprice, or the barbarism of parents, 
guardians, of the public — to grovel 
through life unformed and unfruit- 
ful? This I think, is the real ques- 
tion. And I say no! God forbid! 

It is said that we propose to in- 
vade the domestic sanctity, and inter- 
fere with private right. 

Is it the right of the parent to shut 
out the light of letters, and the radi- 
ance of education from the reason of 
his child? Whence comes the right? 
Intellect and soul are God's noblest 
benefactions to man. You shall not 
darken the one, nor benight the 
other. 

Sir, I do not ask the state to in- 
terfere with the use which any adult, 
responsible citizen may choose to 
make of the mind and the reason 
with which he is blessed. It is for 
helpless childhood that I plead and 



2^53 



COML'ULSORY EDUCATION 



Tuesday] 



WAKELEY -H ASCALL 



[August 1 



Invoke the power of the state. Yet, 
I Invoke this only when, from un- 
wiUlnKness, or neglect, those who 
have the care of it fail to do their 
plain duty; or, from inability, fail 
to recognize his birthright, and give 
it a fair field to work out its desti- 
ny. I ask only this — that, when the 
state provides all the means of edu- 
cation — free as the air is free to be 
breathed — and the child has the 
mental and physical vigor and abili- 
ty to be educated and put upon the 
high road to advancement, and to all 
the delights that come from cultivat- 
ed reason, and intellect; to useful- 
ness and to honor — that no. criminal 
neglect, no cupidity, no indifference, 
no caprice, no perversity of any hu- 
man being shall be able to rob him of 
the fruition of the mind and of the 
genius which God has given him. 

Who on this floor will tell me that, 
rather than suffer such a depriva- 
tion, he would not, in his childhood 
have gone hungry, and in rags, and, 
in any and all physical discomforts? 

Mr. President. My career has 
been a very humble one, but, what- 
ever I am; all that I can hope to be; 
and a great part of the highest joys 
and the most supreme delights of 
my life I owe to the one thing, 
.which I ever recall with fervent 
gratefulness — that, in my obscure 
childhood, an honored father and a 
revered mother amidst toils and 
poverty, and privation, made it the 
great aim of their lives that their 
children should have a thorough 
common school education. I hope I 
shall be pardoned for here rendering 
this filial tribute to the memory of 
the one, and the name of the other; 



that my children may read it, if 
what we say here shall be read at 
all. 

But, had this been otherwise, had 
my childhood been in the keeping of 
those who had denied or withheld 
my born right — to have my under- 
standing enlightened; my mind in- 
structed; and my reason enlarged — 
I would have lived in deep thankful- 
ness and gratitude to my native state 
if she had secured to me, by com- 
pulsion, that inestimable privilege 
and right. 

And, sir, in public as in private 
affairs, we shall not go far wrong 
if we follow the divine precept — 
"As ye would that men should do to 
you,, do ye also to them likewise." 

These, Mr. President, are my sen- 
timents. I feel no doubt that the 
principle of compulsory education, 
will come to be generally approved. 
But in deference to doubts whether 
public opinion is yet ready to ac- 
knowledge its justice, and benefi- 
cence, I deem it proper that the vote 
upon it should be talten separately. 
I, therefore, support the motion. 

Mr. HASCALL. Mr. President. I 
would like to have leave to say a few 
words. 

("Leave, leave.") 

It is too late, Mr. President, to 
make any extended remarks upon this 
subject. I thought I understood the 
matter somewhat thoroughly at the 
time it was discussed before, but 
during this discussion, the full mean- 
ing of the section has been made 
plain. 

One of the objections to the sec- 
tion under consideration is that it 



COMPULSORY EDUCATION 



261 



Tuesday] 



HASC ALL— MOORE 



[August 1 



blends together the prison, the poor 
house, the foundling hospital, the 
common free school and the compul- 
sory school, Jind brings together for 
the purposes of education the ju- 
venile criminal, the young vagabond 
and the orphan child, guiltless of 
crime and without criminal inclina- 
tions, and the children of poor par- 
ents against whom nothing can be 
alleged but their poverty. That 
seems to be the tenor of the section. 
Now if we are to provide for a free 
school systemi let us do so without 
this reformatory school matter in ad- 
dition. Compulsory education should 
be submitted to the people of the 
state as a proposition by itself and 
not mingled in with provisions for 
free schools and reformatory schools 
for juvenile offenders. If this is 
done then the question will stand up- 
on its merits. We are all, un- 
doubtedly in favor of reformatory 
schools for criminals, but I am op- 
posed to putting children without 
parents in the same category with 
criminals. I shall vote to strike out 
this section; not that I wish to com- 
mit myself against compulsory edu- 
cation, but for the purpose of in- 
serting the proposition in some part 
of the constitution to be submitted to 
the people and also insert a section in 
some other part which provides for 
reformatory institutions. 

Mr. TOWLE. Mr. President. I 
call for the previous question. 

Mr. MOORE. Mr. President. I 
call for a division of the question. I 
would like to see the first part re- 
tained. 



Mr. ROBINSON. Mr. President. I 
would like to ask whether if this 
motion prevails, the question will be 
upon the amendment? 

The PRESIDENT. Yes sir. 

Mr. MOORE. Mr. President. I 
wish to have a division of the ques- 
tion. I wish to have this part of the 
section retained. "The legislature 
shall require by law that every 
child of sufficient mental and physi- 
cal ability between the ages of six 
and sixteen years, unless educated 
by other means, shall attend a pub- 
lic school supported by the common 
school fund, for some definite length 
of time each year, to be fixed by 
law." This is the first proposition, 
and the second will follow. 

The PRESIDENT. The question 
is shall the main question be now 
put. 

The motion was agreed to. 

The PRESIDENT. The question 
is on the motion of the gentleman 
from Cass (Mr. Maxwell) to strike 
out and submit section four as a 
separate proposition. 

Mr. WEAVER. Mr. President. I 
would like to hear that section read 
as amended. 

The secretary read the section, as 
follows: 

Sec. 4. The legislature shall re- 
quire by law that every child of suf- 
ficient mental and physical ability, 
between the ages of eight and six- 
teen years, unless educated by other 
means, shall in all cases where prac- 
ticable attend a public school sup- 
ported by the common school fund, 
for some definite length of time each 
year, to be fixed by law, and shall es- 



2(52 



FREE COMMON SCHOOLS 



Tuesday] 



McCANN-ROBINSON 



[August 1 



tablish a school or schools for the 
safe keeping, education.employment, 
and reformation of all children 
under sixteen years of age without 
proper paternal care, who are grow- 
ing up in mendicancy, ignorance, 
idleness or vice, which school shall 
constitute a part of the system of 
common schools. 

The PRESIDENT. The ayes and 
nays are demanded — Secretary, call 
the roll. 

The vote was taken and the result 
was announced — ayes, 25; nays, 15 
— as follows: 

AYES. 



Abbott, 


Philpott, 


Ballard. 


Price, 


Campbell, 


Reynolds, 


Cassell, 


Robinson, 


Cray, 


Scofield, 


Hascall, 


Sprague, 


Hinnian, 


Stevenson, 


lienaston. 


Thummel, 


Kilburn, 


Thomas, 


Kirkpatrick, 


Towle, 


Lyon, 


Wakeley, 


Maxwell, 


Wilson. — 25. 


Moore, 






NAYS. 


Curtis, 


Neligh, 


Estabrook, 


Parchin, 


Gibbs, 


Shaff, 


Griggs, 


Speice, 


Granger, 


Tisdel, 


Ley, 


Vifquain, 


McCann, 


Weaver. — 15. 


Majors, 




ABSENT 


OR NOT VOTING. 


Boyd, 


Myers, 


Eaton, 


Newsom, 


Grenell, 


Parker, 


Lake, 


Stewart, 


Mason, 


Woolworth, 


Manderson, 


Mr. President. — 12 



The motion was agreed to. 

Mr. McCANN. Mr. President. I 
move that section four be recommit- 



ted to the committee on education 
with instructions to amend and re- 
port the same back to the conven- 
tion as a proposition to be submitted 
separately. 

The motion was agreed to. 

The secretary read the next sec- 
tion, as follows: 

Sec. 5. The legislature shall pro- 
vide by law for the establishment of 
district schools, which shall be as 
nearly uniform as practicable, and 
such schools shall be free and with- 
out charge for tuition, to all children 
between the ages of five and twenty- 
one years. 

Section five was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 6. Provision shall be made by 
law for the equal distribution of the 
income of the fund set apart for the 
support of common schools, among 
the several school districts of the 
state in proportion to the number of 
children and youth resident therein 
between the ages of five and twenty- 
one years and no appropriation shall 
be made from said fund to any dis- 
trict for the year in which a school 
shall not be maintained at least three 
months. 

Section six was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 7. No University lands. Agri- 
cultural College lands, common 
school lands, or other lands which 
are now held or which may be here- 
after acquired by the state for educa- 
tional purposes, shall be sold for less 
than seven dollars per acre. 

Mr. ROBINSON. Mr. President. I 
move to amend by striking out the 
word "seven" and inserting "three." 



PRICE OF SCHOOL LANDS 



263 



Tuesday] 



HASCALL— PRESIDENT 



[August 1 



I will state my reason for this Mr. 
President. I believe the legislature 
raised the price of these lands to sev- 
en dollars an acre, and I think they 
ought to be sold for that price if we 
can get it, but I would like to allow 
the legislature after they have sold 
all they can at that price to have the 
privilege of putting it down to even 
three dollars. I know that there are 
some of the lands in this county that 
will not sell for twenty-five cents an 
acre, in sections sixteen and thirty- 
six. 

Mr. HASCALL. I move the previ- 
ous question. 

The motion was agreed to. 

The PRESIDENT. The question 
is on striking out the word "seven" 
and inserting the word "three." 

The ayes and nays were demand- 
ed. 

The secretary called the roll and 
the president announced the result: 
Yeas, 28; Nays, 12, as follows: 



Abbott, 

Ballard, 

Campbell, 

Curtis, 

Estabrook, 

Gibbs, 

Gray. 

Griggs, 

Hascall, 

Hinman, 

McCann, 

Majors, 

Maxwell, 

Moore, 



Cassell, 

Granger, 

Kenaston, 



YEAS. 

Neligh, 

Parchin, 

Price, 

Shaft, 

Sprague, 

Speice, 

Thummel, 

Thomas, 

Tisdel, 

Towle, 

Vifquain,, 

Wakeley, 

Weaver, 

Wilson. — 28 

NAYS. 

Kilburn, 

Kirkpatrick. 

Ley, 



Lyon, 

Philpott. 

Reynolds, 



Robinson, 
Scofield, 
Stevenson. — 12. 



ABSENT AND NOT VOTNG. 

Boyd, Newsom, 

Eaton, Parker, 

Grenell, Stewart, 

Lake, ' Weaver, 

Mandersoni, Woolworth, 

Mason, . Mr. President.— 1 3 

Myers, 

The PRESIDENT. The question 
is on the passage of the section. 

The ayes and nays were demand- 
ed. 

The secretary called the roll and 
the president announced the result, 
ayes, 6; nays, 33, as follows: 

YEAS. 



Kilburn, 


Robinson, 


Tjvon, 


Scofield, 


Philpott, 


Stevenson. — G 




NAYS. 


Abbott, 


Maxwell, 


Ballard, 


Moore, 


Campbell, 


Neligh, 


Cassell. 


Parchin, 


Curtis, 


Price, 


Estabrook, 


Reynolds, 


Gibbs, 


Shaff, 


Granger, 


Sprague, 


Gray, 


Speice, 


Griggs, 


Thummel, 


Hascall, 


Thomas, 


Hinman. 


Tisdel, 


Kenaston, 


Towle, 


Kirkpatrick, 


Vifquain, 


Ley, 


Wakeley, 


McCann, 


Wilson. — 33. 


Majors, 




ABSENT 


AND NOT VOTIN 


Boyd, 


Myers, 


Eaton 


Newsom, 


Grenell, 


Parker, 


Lake, 


Stewart. 


Manderson, 


Woolworth. 


Mason, 


Mr. President 



-12 



I" 

I 



2t>4 



SCHOOL FUNDS— UNIVERSITY BOARD 



TueMdayl 



PHILPOTT 



[August 1 



Mr. CASSELL. (When his name 
was called.) Mr. President. I am 
in favor of leaving this matter to 
the legislature. I therefore vote 
nay. 

Mr. KENASTON. (When his name 
was called.) Mr. President. I vote 
nay for the same reason, 

Mr. KIRKPATRICK. (When his 
name was called.) Mr. President. I 
vote nay for the same reason. 

Mr. GRANGER. Mr. President. I 
was out of the hall when the vote 
was taken and wish to vote. 

The PRESIDENT. Has the gentle- 
man leave to vote. 

(Leave, leave.) 

The secretary will call the name 
of the gentleman. 

The next section was read by the 
secretary, as follows: 

Sec. 8. All funds belonging to the 
state for educational purposes, the 
interest and income whereof only 
are to be used, shall be deemed trust 
funds held by the state as trustee, 
and the state shall supply all losses 
thereof that may in any manner oc- 
cur, so that the same shall remain 
forever inviolate and undiminished; 
and such funds, with the interest and 
income thereof, are hereby solemnly 
pledged for the purposes for which 
they are granted and set apart, and 
shall not be transfered to any other 
fund for other uses. 

Section eight was adopted. 

Mr. PHII^POTT. Mr. President. I 
have a section to offer in place of sec- 
tion nine which has been stricken 
out. 

The secretary read the section, as 
follows: 



The general government of the 
University of Nebraska and the man- 
agement of the funds shall be vested 
in a Board of Education composed of 
two members for each judicial dis- 
trict to be styled the Board of Edu- 
cation of the University of Nebraska; 
two members of which shall be elect- 
ed in each judicial district by the 
electors thereof. Their duties, 
powers and terms of office shall be 
prescribed by law. They shall re- 
ceive no compensation except actual 
necessary expenses. 

Mr. PHILPOTT. Mr. President. I 
am of the opinion that the general 
government of the University of Ne- 
braska ought to be placed with 
persons who will be charged speci- 
ally with that business. I know that 
section eleven provides for its gov- 
ernment and management, but I am 
not satisfied with it. I desire to 
call attention to section eleven. 

"The superintendent of public in- 
struction, secretary of state, treas- 
urer, attorney general, shall consti- 
tute a board of commissioners for 
the sale, leasing and general man- 
agement of all lands and funds set 
apart for educational purposes, and 
for the investment of school funds 
in such manner as may be provided 
by law." Gentlemen may claim that 
that section provides for the govern- 
ment of the University and that we 
need not look especially after the in- 
terests of the University of the state. 
It may be claimed that all the au- 
thority necessary for that purpose 
is vested in the state superintendent 
and such other officers as the legisla- 
ture may direct. Who will those of- 
ficers be? Who are the officers this 
constitution has provided for? 
They are either the officers of the 



UNIVERSITY GOVERNMENT 



265 



Tuesday] 



PHILPOTT 



[August 1 



judiciary or executive departments. 
It is more than probable that the 
officers intended by this section are 
to be those of the executive depart- 
ment. I claim if we leave it under 
the direction of section eleven, the 
the control and management will be 
left in the hands of the state superin- 
tendent, and some of the executive 
officers. It will not be safe to en- 
trust such a power, for the consider- 
ation that those officers will be 
charged with numerous other duties, 
and they will not have time, or feel 
the interest in the management of 
the University that officers who are 
especially charged with it would have 
whose bounden duty it was to attend 
to these matters. It may be claim- 
ed that the legislature will appoint 
other officers than those. This says 
"the superintendent and such other 
officers that the legislature may di- 
rect." They must create some new 
officers, and who are those persons 
to be? They must be the executive 
officers or other officers to be created, 
and the object of my amendment 
is to know in whose hands we 
entrust this case. Every citizen 
has a right to know to whom so 
great a trust is given. In the sec- 
tion I have offered I provide that it 
shall be placed in the hands of per- 
sons chosen from each judicial dis- 
trict. How are they to be chosen? 
Directly by the electors of each of 
those districts. Now, it will not be 
adding a great expense. It provides 
that they shall receive no compensa- 
tion except that of actual necessary 
expenses. I desire to call your at- 
tention to the manner in which uni- 
versities well governed are governed. 



Look at the state of Michigan. A 
more prosperous university cannot 
be found. It is left in the hands of 
twelve persons, called regents. I 
have not used the word "regents," 
because it is objectionable to some. 
Take Harvard college. It is placed 
in the hands of persons having it es- 
pecially in their charge. There the 
whole management is in the hands 
of the governor, the counsel and the 
senate of the state, besides the presi- 
dent and all of the ministers of the 
Congregational church in some six 
towns in the immediate neighbor- 
hood of the college, and it is handled 
with great success. I refer to these 
in order that I may meet the objec- 
tions that might be advanced that 
this board may be increased. I hold 
that the state University should be 
placed in the hands of persons speci- 
ally charged. Look at the state of 
Ohid, with its university, which has 
no doubt, as many sections of land as 
our own university. But it was not 
placed in the hands of persons speci- 
ally charged; and today it is not 
known where it is located scarcely: 
indeed very few know. It is located 
in the little town of Athens, and it is 
only known by persons passing 
through when they are informed 
that it is the state university. And 
I think that is owing to the bad poli- 
cy of not having proper persons to 
manage its interests. 

Mr. HASCALL. I want to propose 
an amendment, which, I think, the 
gentleman will accept. So as to except 
the Agricultural college, State Nor- 
mal school and Deaf and Dumb In- 
stitute. 



'jc.t; 



UNIVERSITY GOVERNMENT 



Tuesday] 



ESTA BROOK— PHILPOTT 



[August T 



Mr. ESTABROOK. I would like 
to make a statement. The last that 
was announced was that section 
eipht carried, section nine was 
stricken out in the committee of the 
whole. But it is not announced that 
we have acted on it. The question is 
whether we will adopt that action. 

Mr. HASCALL. We are acting 
upon the report of the committee of 
the whole now. 

Mr. ESTABROOK. Yes, and the 
question is whether we will adopt 
that action. 

The PRESIDENT. The gentleman 
from Lancaster (Mr. Philpott) offers 
a new section foi" that. The question 
is upon the consideration of section 
nine, whereupon the gentleman from 
Lancaster offers a substitute. 

Mr. ESTABROOK. I ask that sec- 
tion nine be read, that we may see 
which is best. 

The secretary read the ninth sec- 
tion. 

Mr. ESTABROOK. Now, the 
question is whether we will confirm 
the amendment of the committee. 

Mr. PHILPOTT. Mr. President. I 
have offered that as a substitute for 
section nine. The great objection to 
the section in the committee of the 
whole was that if we adopted it 
thereby confirming the location of 
the University and the Agricultural 
college at the capital; that, perhaps, 
we might also sanction that law by 
which the state university was creat- 
ed; and it was the great objection of 
many to that law, and they did not 
desire to do anything which showed 
them in favor of the law. It was 



said it was not necessary to confirm 
the location of those buildings in or- 
der that we could be entitled to re- 
ceive the appropriation of land for 
agricultural purposes. 'And under 
those reasons it was stricken out. 
Now as to the amendment of Mr. 
Hascall, I am not inclined to accept 
it, for this reason. The University 
of Nebraska includes six depart- 
ments, — a college of ancient and 
modern literature, mathematics and 
the natural sciences. — 2. A college of 
of Agriculture. 3. A college of 
law. 4. A college of Medicine. 5 
A college of practical science, civil 
engineering and mechanics. 6. A 
college of fine arts; provided, that 
the college of fine arts shall be es- 
tablished only when the annual in- 
come of the university fund shall 
have reached $100,000. And to con- 
trol these institutions I desire to be 
in the hands of persons capable of 
looking after thern. I would not 
insert the government of the High 
School at Omaha. 

Mr. HASCALL. It is not the 
High school, but the Deaf and Dumb , 
Institute. j 

Mr. PHILPOTT. Well, I say, I i 
would not include the Normal school 
nor the High school. I am not dis- | 
posed to accept the amendment. An- 
other reason why I desire this under 
the entire control of a board is, if it 
is left in the hands of gentlemen of 
the state, and such others as the leg- 
islature may appoint, they will come 
here, hold office for a time, and 
might be manipulated, perhaps, by 
the chancellor. I don't mean our 
present one, but the chancellor who 



UNIVERSITY GOVERNMENT 



267 



Tuesday] 



MAXWELL— MAJORS 



[August 1 



may come hereafter. They would be 
here for a short time, and might easi- 
ly be manipulated by those gentle- 
men to the disadvantage of the uni- 
versity. I want it to be placed in 
the hands of men who will have at 
heart the educational interests and 
the interests of the university, and 
will help to build up the objects for 
which that institution was intended. 

Mr. MAXWELL. Mr. President. 
The men elected to this position will 
receive nothing but their expenses. 
It does seem to me that it will not 
do to give the supreme control of 
the educational interests of the state 
to the state officers. They are men 
generally, who care but little about 
these institutions. The university 
of the state should be separate and 
beyond all political influences, and 
it will be used for this purpose, if 
it is left in the hands of the state of- 
ficers. It is the experience of other 
states that the system proposed here 
is well adapted to secure the suc- 
cess of institutions like our universi- 
ty. 

Mr. MAJORS. Mr. President. I 
wish to make but a few brief re- 
marks upon this question, inasmuch 
as I have been mixed up with this 
school matter, by being connected 
with the committee. The proposi- 
tion don't meet my approval, yet I 
have some objections to the amend- 
ment offered by the gentleman from 
Lancaster (Mr. Philpott.) I also 
object, for the same reasons, to the 
amendment of the gentleman from 
Douglas (Mr. Hascall) as I am one 
of those that believe that too much 
legislation in detail, on the part of 
this convention, is wrong in princi- 



ple and therefore we provided that 
the educational interests of the state 
should be vested in the state super- 
intendent of instruction and such 
other state officers as the legislature 
may provide. The state university is 
of sufficient importance to engross 
the attention of the officers whom the 
legislature may appoint for its guid- 
ance. I would provide for the elec- 
tion of three men at large, and these 
together with the superintendent, by 
virtue of his office, and the state 
treasurer, by virtue of his office 
should constitute the board of educa- 
cation and the management of the 
state university should be under 
their control. I would do this from 
the fact that I expect these men to be 
elected from their peculiar fitness for 
the position. I would also allow 
three to be selected in the same way 
by the legislature to govern the state 
normal schools in connection with 
the state officers. 

Mr. PHILPOTT. Mr. President. I 
wish to say I accept the amendment 
of the gentleman from Douglas (Mr. 
Hascall) . 

Mr. MAJORS. Very well sir. I 
don't think, Mr. President, that I will 
be able to say anything that will in- 
terest a man on this floor, if this 
noise is kept up. 

The PRESIDENT. The members 
will keep better order. 

Mr. MAJORS. I wish to say, Mr. 
President, that we have no interesli. 
in my opinion, in the state that will 
compare in importance with our edu- 
cational interests and for us to say 
now, who shall have control of all 
the educational Interests of the state. 



208 



UNIVERSITY GOVERNMENT 



Tuesday] 



MAJORS-HASCALL 



[August 1 



I think Is wrong in rpinciple, for 
this reason. I take it the control 
and management of the state 
university is a peculiar task, and 
requires different talent from that 
required to manage any other branch 
of our educational interests. While 
in the state normal school the object 
to be attained is to get up the best 
possible method of teaching, the 
state university deals in the higher 
points in the education of students. 
I think there should be a class of 
teachers fitted for the peculiar work 
in each. The board that is selected 
for the management of the universi- 
ty located here should be selected for 
their peculiar fitness for the ofl5ce. 
The state normal school is located, 
at the present time at Peru. I know 
there are frequently questions aris- 
ing in the management of the school, 
and while the faculty are responsi- 
ble for the manner in which the 
school is conducted yet they may 
make blunders, and it has been 
found before now that the board 
were required to reverse the decis- 
ions of the faculty. Therefore it is 
best to have the board situated so 
close to the school that it would not 
cost the state a large sum to con- 
vene the board whenever their ser- 
vices are required. Why not leave 
the power to govern these institu- 
tions with the legislature rather 
than fix it definitely in the constitu- 
tion, or declare that one certain man 
shall have charge of the educational 
interests of the state. Now, what are 
the questions connected with the 
workings of the state normal school? 
The law as it now exists allows the 
board who have charge of the school, 



four regular meetings in the year, all 
other meetings which are held by the 
board, they make no charge for. This 
is the plan upon which I wish to see 
the action of this board based. 
Therefore I am opposed to the pro- 
position, of the gentleman from Lan- 
caster (Mr. Philpott) and hope it 
will not prevail. 

Mr. HASCALL. Mr. President. In 
offering this amendment to put the 
management of these different 
schools under Ithe control of the 
state officers I did not mean to re- 
flect upon the action of the board 
who have charge of the Peru school. 

Mr. MAJORS. Will the gentleman 
allow me to make one suggestion. 

Mr. HASCALL. Certainly. 

Mr. MAJORS. We provided in the 
board, that two shall be elected from 
each representative district and 
when they are provided for the citi- 
zens of the state should come in and 
then if we have a surplus the privi- 
lege will be extended to citizens of 
other states. It is just as broad as 
the state 

Mr. HASCALL. It is just as broad 
as thirteen 

Mr. MAJORS. Twenty-six now. 

Mr. HASCALL. Yes sir, twenty- 
six, twice the number of senatorial 
districts. That is all well enough 
and to extend it to the state but I 
don't believe in educating the teach- 
ers of other states. I am not arraign- 
ing the members of this board but 
we want to have one person on this 
board from each of the five grand 
divisions of the state. Now it is 



STATE BOARD OF EDUCATION 



269 



Tuesday" 



HASCALL— McCANN 



[August r 



proposed to make a large number of 
representative districts in the state 
and I would like to see at least two 
scholars in this school from each 
representative district. I take it up- 
on me now to say that there is not 
two scholars in that school for each 
senatorial district. We don't want 
a board located at Peru. We have 
no objection to the institution being 
there but we want a state board. 
The argument of the gentleman from 
Lancaster (Mr. Philpott) is a good 
one, that this institution should be 
managed in the interests of the peo- 
ple of the state and not of Peru. 
The superintendent of public instruc- 
tion will have enough to do if he 
manages the common schools of this 
state without putting upon him any- 
other duties. I find there are a 
great many arguments for a board of 
regents and a great many friends in 
favor of that proposition, the argu- 
ments in favor of that will apply to 
the proposition of the gentleman 
from Lancaster. There is no sense 
in having a board of regents for the 
university, another for the Deaf and 
Dumb institute and another for the 
state normal school, but by center- 
ing them in this one board we will 
find that our state educational in- 
stitutions can, this way be well man- 
aged and will prosper. I hope there- 
fore, that this proposition as amend- 
ed will be adopted without much op- 
position. 

Mr. McCANN. Mr. President. The 
successful management of the uni- 
versity of Nebraska depends alto- 
gether upon the proper qualifications 
of the members of the board of re- 
gents — the board of education, or 



trustees, or whatever the title of this 
board of direction may be. 

To commit the care and direction 
of the educational interests of this 
state to a board composed of the 
state officers, a number of gentlemen 
always selected from the political 
parties of the times, persons who 
may not be, and generally are not 
fitted by education and experience 
to advise, direct and control the 
affairs of institutions of learning and 
who are liable to changfe every two 
years — men who must necessarily 
bring with them diverse and conflict- 
ing views and preferences, would be 
to at once and forever surrender all 
the benefits and advantages which 
we expect, and which ought to flow 
from our state university and the 
munificent fund provided for its sup- 
port. Those who have the manage- 
ment and care of the university 
and agricultural college should be 
above the suspicion of being influenc- 
ed by party or political considera- 
tions. I trust, Mr. President, that 
the care of these institutions may 
ever be committed to men chosen 
from the respective judicial districts 
of the state with refei'ence to their 
peculiar fitness for the discharge of 
the very important duties to which 
they shall be called. Let us Mr. Pre- 
sident, lift these institutions far 
above all party and all political 
strife, and make them what they 
were intended to be and what it is 
our high duty and privilege to make 
them. 

Mr. MOORE. Mr. President. I 
wish to offer an amendment by mak- 
ing the number from each judicial 
district two, instead of one. 



•270 



STATE BOARD OF EDUCATION 



Tuesday] 



EST A BROOK 



[August 1 



Mr. PHILPOTT. I will accept the 
amendment. 

Mr. ESTABROOK. Mr. President. 
Section eleven of the original re- 
port was amended in the committee 
of the whole so as to make two sec- 
tions of it, sections eleven and 
twelve. Section eleven was adopted, 
which provides that the supervision 
of public instruction is to be vest- 
ed in the superintendent and some 
other oflicers as the legislature may 
provide. T^hether it be in the man- 
agement of the university or normal 
school in the way of regents, we 
leave that to the legislature. That 
is the extent of section eleven. 
Then we come to section twelve, and 
while all the other portions of the 
article were agreed to, fixed and per- 
fected, section twelve was held in 
abeyance and referred to a special 
committee consisting of the chair- 
men of certain committees interested 
in the state lands^ state funds, build- 
ings, school lands and the like\, to- 
gether with several other gentlemen. 
This committee was instructed to 
report one more section. In obedience 
to these instructions that committee 
reported through Mr. Schofleld. the 
chairman, as follows; "The commis- 
sioner of public lands and buildings, 
secretary of state, treasurer, and at- 
torney 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 
institutions except those for educa- 
tional purposes, and shall perform 
such duties, subject to such rules and 
regulations as may be prescribed by 
law." Before we went on to consid- 



er the portions of this article in the 
house, I offered to bring the school 
interests, school lands within the 
purview of this provision which was 
adopted as section twenty in the 
article on executive. I offered this 
as section twelve, which together 
with section eleven, covers all the 
ground, and unless there is objection 
to this method, it seems to me it 
supersedes the necessity of the pro- 
vision of the gentleman from Lan- 
caster (Mr. Philpott). The amend- 
ment was in possession of the house 
and was held in abeyance. It is as 
follows: 

"The supervision of public instruc- 
tion shall be vested in a state super- 
intendent and such other officers as 
the legislature shall direct. The su- 
perintendent shall be chosen by the 
qualified electors of the state in 
such manner as the legislature shall 
direct, his powers and duties shall 
be prescribed by law." 

It seems to me that these two pro- 
visions cover the entire ground. One 
contemplates education, and the 
other relates directly to the property. 
The great objection to the report of 
this committee was the multiplica- 
tion of new officers. That was the 
reason why the proposition for a 
state land commissioner as such was 
rejected, and the matter was re-refer- 
red with instructions that they 
should so provide that there should 
be but one officer. In obedience 
to that the committee have re- 
ported this, that the three state of- 
ficers!, one whose appropriate duty 
it will be to hold the funds, one 
whose appropriate duty it will be to 
give advice, furnish form and so- 
forth, and the other to have custody 



STATE BOAKD OF EDUCATION 



271 



Tuesday] 



ESTABROOK— ROBINSON 



[August 1 



of the records. These together with 
one individual elected outside shall 
constitute a board. It seems to me 
it was appropriate and proper that 
this board should have the manage- 
ment of state lands other than 
school lands, and also school lands. 
I know it is to become the most im- 
portant bureau in the government of 
Nebraska, one that will have the 
most onerous duties to perform. If 
there is a separate department that 
needs to be well sustained it is the 
bureau of public lands. There is no 
earthly reason of providing that 
there shall be one board who shall 
have the interests of the other state 
lands in charge, and another state 
board who shall have the interests of 
the school in charge. It is now pro- 
posed that there shall be a board 
elected out of the several judicial 
districts. I do not know what duty 
they are to perform, whether they 
are to guard the lands or the educa- 
tional interests or intended that they 
should take the place of the regents. 
It seems to me that this proposes to 
supersede the duties of both, and 
take the place of both sections elev- 
en and twelve. It provides that the 
general government of the universi- 
ty of Nebraska, the management of 
its funds shall be vested in a board, 
of education, composed of one mem- 
ber from each of the judicial dis- 
tricts. It is said this board will be 
elected of those who will not charge 
anything. Do you tell me that the 
funds of the state are to go into the 
hands of individuals elected under 
the constitutional provision who 
shall only be amenable to the laws 
of the state and supervising officers 



of the state as amateurs, so import- 
ant a liberty as to control the school 
funds and lands shall be entrusted 
to a board who come here simply to 
play school officers, act as amateurs 
for the fun of it? Perhaps I cannot 
exactly appreciate the solemnity of 
it, but it strikes me that while it is 
possible to procure here, as I know 
they do in New York, a board of 
regents who shall act from mere 
amusement, shall have a general su- 
pervision of the educational depart- 
ment, who shall take off their gold 
spectacles and look wise while they 
give advice as to whether this or that 
system of education shall be adopted, 
or this or that school book should be 
adopted. It would be a very dan- 
gerous thing to say that a board of 
officers shall act independently, for 
fun and amusement, and take charge 
of the school fund money of the state 
of Nebraska, millions in value and 
my colleague (Mr. Hascall) is satis- 
fied with it. 

Mr. HASCALL. I do not under- 
stand it proposes to touch any school 
fund at all. 

Mr. ESTABROOK. It is all the 
same whether it be funds of one 
class or another. It is funds very 
considerable in amount. I am com- 
mitted to anything in tlis regard [t 
str'.kes me it is unuec'e..--=;. ry to h v^ •-' 
a board for the management of these 
funds. 

Mr. ROBINSON. I ask for infor- 
mation, in whose hands do you pro- 
pose to put the general management 
of the affairs in the university? 

Mr. ESTABROOK. I propose to 
put them into the hands as I would 



bTATE HOAliL) OF EDUCATION 



Tuesday 1 



McCANN-ESTABROOK 



[August 1 



In the board in the 20th section, and 
I propose to put the other education- 
al interests in the hands of such of- 
ficers as we provided for by section 
eleven. 

Mr. McCANX. And how many of- 
ficers do you provide? 

Mr. ESTABROOK. Four. 

Mr. McCANN. Do I understand 
my friend to be serious in this? 
That four gentleman are better fit- 
ted to take the charge of these insti- 
tutions than five or ten gentlemen 
selected with reference to their dif- 
ferent districts to serve longer 
terms? 

Mr. ESTABROOK. That does not 
enter into the account. That 
ground has all been passed over be- 
fore, and was the settled conclusion 
of this body that the interests should 
be vested in the board; and in obe- 
dience to that behest the committee 
went out and have reported section 
twenty as it stands in the article. It 
is not the question here whether the 
one plan or the other will be better, 
but whether we will now subject 
these to the same interests that the 
state lands are subjected. 

Mr. CASSELL. Was not the in- 
struction to that committee to re- 
port simply in favor of creating one 
ofiicer to perform the duties of that 
office rather than two? 

Mr. ESTABROOK. It is sufficient 
to know that they made their report, 
and that this is the report as I have 
read. 

Mr. McCANN. I wish to correct 
the gentleman in this one particular. 
It Is not proposed to take charge of 
the school lands or school funds of 



the state; nothing more than the 
appropriate fund which by law is 
set apart for the use of the universi- 
ty and agricultural college of the 
state of Nebraska, which comes in- 
to the hands of the state treasurer, 
and that officer gives his bond. 
These gentlemen have no control fur- 
ther than in directing what part shall 
be vested, and in what manner these 
funds shall be appropriated. It is 
begging the question. The simple 
question is this — ie it better — 

Mr. ESTABROOK. Well, wait a 
little before you go on with your 
speech. I don't want yours injected 
into mine. My speech is not big 
enough to hold it. 

Mr. McCANN. We want to see 
where the difference exists. 

Mr. ESTABROOK. I know that 
when I drew up section twelve, that 
it travelled the same ground, that it 
should embrace the care and interest 
of the school lands as well as the 
others. Now, you have to travel 
back and reverse that action if you 
urge the section of the amendment 
contemplated before the house. I 
will read it carefully. "The commis- 
sioner of public lands and buildings, 
the secretary of state, treasurer and 
attorney general shall form a board 
which shall have general supervisi- 
on and control of all the buildings, 
grounds and lands of the state." I 
know I made the enquiry myself "Is 
that sufficiently broad to cover the 
school lands?" Because the reason 
I was placed there was because I was 
chairman of the committee on edu- 
cation, school funds and lands, 
and hence it was the intention that 
the board should have charge of the 



STATE BOARD OF EDUCATION 



273 



Tuesday] 



McC ANN - SPRAG QE 



[August 1 



school interests, of all the buildings, 
grounds and lands of the state, the 
states prison, asylum, and the other 
institutions. I know we had the 
dictionary there to see what "insti- 
tutions" meant; and we found it did 
not mean the building, or the school 
proper, called the university, so that 
it went on to say "except those for 
educational purposes." Giving them 
the control of the land, grounds, and 
funds. Now, this contemplates that 
the lands, a portion of them, shall 
be taken out of the fund, by the 
board. You must reverse the action. 

Mr. McCAXX. I would debate the 
question at issue from all the paper 
that is thrown around it. I believe 
it to be essentially this — shall the 
interest and management of the state 
university and agricultural college 
of the state of Xebraska — you may 
add, if you please, the normal school 
and deaf and dumb asylum — be com- 
mitted to the care of four gentle- 
men elected for two years, to be 
made a foot ball of under these par- 
ties for two years or during the life 
of this constitution, and shall these 
interests or the control of these in- 
stitutions be committed to the care 
of five gentlemen selected from the 
different parts of the state, with refe- 
rence to their peculiar fitness for the 
discharge of these duties. If this 
convention, composed of men, to 
every one of whom these interests 
are sacred, say they are perfectly wil- 
ling, and they deem it best to com- 
mit this to these four state officers, 
I submit; but I enter my protest, and 
I wish to be distinctly understood 
thatwhat little experience I have had, 
and the deep convictions which press 

18 



my mind, I will be pained, and I be- 
lieve it will be a source of regret and 
pain to every well-wisher of these 
institutions in the state of Xebraska. 

Mr. SPRAGUE. I wish to say to 
the members of this convention 
that I am decidedly in favor of the 
proposition which has been introduc- 
ed by the gentleman from Lancaster. 
It will be remembered that while we 
had this article under consideration 
in the committee of the whole, I in- 
troduced a provision which was very 
similar in its temper to this one. 
The only difference is that it includes 
the deaf and dumb institution. I 
took occasion to state that I believed 
the institutions of the state were so 
that it required men to be selected 
with regard to their peculiar fitness. 
On my return home the last time, 
after introducing that resolution, I 
was met by my constituency, and 
they urged me to press my proposi- 
tion before the convention. They 
said it was what they wanted. I be- 
lieve, so far as I have had a chance 
to find out, that is the impression all 
over the state. They say universal- 
ly "separate the educational inter- 
ests from all other interests of the 
state, because it is paramount to 
them all." Hence, I wish to say that 
this matter confided to the hands of 
its friends, those selected with re- 
gard to their peculiar fitness for this 
kind of work, and I urge the mem- 
bers to day not to tack this thing on 
to the other state officers who are 
selected for another purpose and 
with different qualifications. 

Mr. CAMPBELL. Mr. President. I 
do not think this conflicts with the 



'274 



STATE BOARD OF EDUCATION 



TiH'-tluy] 



CAMPBELL— BALLARD 



[August 1 



ariirlo of the gentleman from Doug- 
las, and the management of its funds. 
In that article he speaks of he puts 
the disposal of all the lands, the 
fnnds, into the state treasury, and 
this board has the management of 
the funds which belong to the state 
university. Now, in Nebraska City 
they have a board of education. It 
gets the state money. The money is 
in the state treasury. It is sent to 
the county treasurer; he puts it into 
the city treasury, and our board has 
the management of that money. But 
we never sell or touch it. We 
check it out to teachers and other 
things which we think necessary. 
The money is there in the state treas- 
ury. They come here, have their 
meeting, if the professors want their 
pay, we give them an order on the 
treasurer. And this board the gen- 
tleman speaks of has the sale of the 
lands, the loaning of the money and 
the management of it in that respect, 
but a certain part of it put aside for 
the university and the common 
school. It does not conflict with that 
article. I think it is an excellent ar- 
ticle, and should go into the consti- 
tution. We pay large salaries to 
other men, and when it comes to 
school officers we pay them nothing. 
If it is important to pay judges and 
men for prosecuting criminals, cer- 
tainly we should pay men who at- 
tend to the educational interests of 
the state. That is one objection I 
have to it and I hope it will pass. I 
think that this deaf and dumb insti- 
tution should be attended to by men 
living in Omaha city, and I think 
that this normal school should be at- 
tended to by men living where it is 



situated. I shall vote for this amend- 
ment. 

Mr. ROBINSON. Mr. President. 
I move to reconsider the vote by 
which the judicial article was post- 
poned. 

The PRESIDENT. The question 
is upon the re-consideration of the 
vote bj^ which the judicial article 
was postponed. 

Mr. BALLARD. Mr. President. I 
merely rise for the purpose of say- 
ing I hope this discussion will not 
come to a premature end. I de- 
sire to see everything this convention 
has done, worked over again or we 
will get through too soon. Now, sir, 
I am here to enter my solemn pro- 
test against this manner of proceed- 
ing. All this ground which has 
been discussed here today was thor- 
oughly discussed the other day in 
committee of the whole. In the 
name of the people of the state of 
Nebraska, let us get through with 
this. 

The PRESIDENT. The question 
is upon the postponement. 

The ayes and nays being demand- 
ed, the secretary proceeded to call 
the roll. 

The President announced the re- 
sult — ayes, 18; nays, 19 — as follows: 



Gray, 

Hascall, 

Hinman, 

Kenaston, 

Kilburn, 

Ley, 

McCann, 

Maxwell, 

Moore, 

Abbott, 



YEAS. 
Parchin, 
Philpott, 
Price, 
Robinson, 
Scofield. 
Rprague, 
Speice, 
Towle, 
Weaver. — 18 

NAYS. 
Ballard, 



THE JUDICIARY ARTICLE 



275 



Tuesday' 



HASCALL— HINMAN— WAKELEY 



[August 1 



Campbell, Reynolds, 

Cassell, Shaff, 

Curtis, Stevenson*, 

Estabroobi, Thummel, 

Granger, Thomas, 

Klrkpatrick, Viiquain, 

Lyon, V, akeley, 

Majors, "Wilson. — 19. 
Nellgh, 

ABSENT OR NOT VOTING. 
Myers, 



Tvewsom, 

Parken 

Stewart, 

Tisdei., 

Wcolworth, 

Mr. President. - 



15 



Rcyd, 

Eaton, 

Gibbs. 

Gr^nell, 

Griggs, 

Lake, 

Manderson, 

Mason, 

So the motion to reconsider the 
vote by which the judiciary article 
was postponed, was not agreed to. 
Adjouriunent. 

Mr. PHILPOTT. I move we ad- 
journ until 2 o'clock. 

So the convention (at eleven 
o'clock and fifty-five minutes) ad- 
journed. 



Afternoon Session. 

The convention met at 2 p. m., and 
was called to order by the president. 

The PRESIDENT. Gentlemen. The 
special order of the hour is the ques- 
tion upon the engrossment for read- 
ing the third time of the judiciary 
bill. 

Mr. ESTABROOK. Mr. President. 
It seems to me we are pretty near the 
termination of discussion on the 
educational article. I move that this 
special order be postponed and that 
we take up the article on education 
and schools. 

Mr. HASCALL. Mr. President. I 
object to that, this has been post- 
poned twice and is nearly completed, 



more so than the other, and as it is 
the special order, I think it ought 
to be taken up. If we wish to expe- 
dite matters we can order this bill 
to be engrossed so that it can go 
into the hands of the engrossing com- 
mittee. Members have come here 
prepared to take up this bill at this 
time. 

Mr. HINMAN. Mr. President. I 
will state that I am probably more in- 
terested in this than any other arti- 
cle remaining to be considered in the 
convention, and it is impossible for 
me to stay here more than two or 
three days and I hope this bill will 
be taken up while I am here. It 
may not be important for me to be 
here, but still I should like to cast 
one more vote on the right side. 

The PRESIDENT. The question is 
on the amendment of the gentleman 
from Douglas (Mr. Estabrook.) 

The motion was not agreed to. 

The PRESIDENT. The question 
is on reading for the third time and 
engrossing the judiciary article. 

Mr. WAKELEY. Mr. President. I 
desire to offer a proposed amend- 
ment to this article which I think is 
in order at this time. I will read it: 

"Until the first day of January, 
1876, the Supreme court shall con- 
sist of the five judges of the district 
courts elected as provided for in this 
constitution, four of whom shall be 
necessary to form a quorum. It 
shall have original jurisdiction in 
cases relating to the revenue, cases 
in which the state shall be a party, 
mandamus, quo warranto, habeas 
corpus, and such appelate jurisdic- 
tion as may be provided by law. 

Each of said judges shall hold his 
office until the first day of January 
1876, and until his successor shall 



'J<». 



THE JUDICIARY ARTICLE 



Tuesday] 



WAKELEY— LAKE 



[August 1 



be elected and qualified, and shall 
receive a salary of $3,500 per an- 
ninn. and one of said judges to be 
selecied by lot shall be the chief 
justice of the supreme court. 

The legislature shall provide for 
an election in the year 1S75 of the 
supreme court judges and judges of 
the district court provided for in ar- 
ti(.le of the constitution. 

Sections two, four, five and six of 

Article of the constitution shall 

be in force, from and after the first 
day of January 1876." 

Now, Mr. President, I offer the fol- 
lowing resolution: 

Resolved, That the judiciary ar- 
ticle, together with the above pro- 
posed provisions be referred to the 
committee on judiciary with instruc- 
tions to inquire into the expediency 
of embodying the said provisions in 
the constitution, or to provide for 
submitting the same to the people to 
be voted upon separately. 

One word, Mr. President. I de- 
sire that this should be fully consid- 
ered by the convention. The propo- 
sition is that the five judges of the 
district courts shall comprise the su- 
preme 'court for five years. I will 
not undertake to go over what has 
been said, but only state that in my 
opinion these judges will be able to 
perform all the duties enjoined upon 
them in the district courts and also 
the duties of the supreme court. I 
know there is a great desire to have 
a separate supreme court and I have 
no doubt it will be better than the 
nisi prius system but I think it is 
not necessary to make the change at 
this time. My best judgment is 
that If we shall proceed to elect in 
each of the five districts one of the 
best men that we can find for five 
years, that upon the whole we will 
have as good a supreme court as 



if we should create and elect a sepa- 
rate court now, and I desire what- 
ever may be the judgment of this 
convention that the people of this 
state may have an opportunity to 
choose between those two systems. I 
think it is right and proper they 
should have that privilege. I will 
cite the case of the district in which 
I reside to establish the proposition 
that these judges will be entirely ad- 
equate to perform the duties of the 
district and supreme court. It is 
composed of the counties of Douglas, 
and Sarpy, and I undertake to say 
from a considerable knowledge of 
the business of that court, beyond a 
doubt whatever eighteen weeks of 
court in the county of Douglas, three 
terms of six weeks each, and two 
terms of one week each in Sarpy is 
all the time the judge of that dis- 
trict will be employed, and, sir, is 
it not very apparent that for 
the coming four years that judge 
will have abundant leisure in addi- 
tion to discharging the duties of 
judge of the supreme court. What 
is true of that district is true of al- 
most if not all other districts pro- 
vided for in this constitution. I 
think the proposition should be sub- 
mitted to the people of the state, and 
it can be done in such a way as not 
to interfere with the judicial article. 
I ask that it be referred to the ju- 
diciary committee for consideration. 

Mr. LAKE. Mr. President. I be- 
lieve if there was any one thing that 
was demanded more than another by 
the people of this state before and at 
the time of the calling of this con- 
vention to revise the fundamental 
law of the state it was that there 



SEPARATE SUPREME COURT 



277 



Tuesday] 



LAKE 



[August 1 



be established an independent su- 
preme court. That seemed to be the 
question that was uppermost in the 
minds of all. Not only attorneys, 
but all persons of intelligence 
throughout the state had come to the 
conclusion that the system under 
which we were operating in respect 
to our courts was an unwise one, and 
the desire seemed to be general that 
the court of last resort should not 
be influenced at all by any other 
considerations than those brought 
to bear at the time of the hearing 
of the cause in that tribunal. That 
the influence in the least degree of 
the judge who presided in the court 
below should not be felt in that high 
tribunal which is to pass finally up- 
on the question of greatest interest 
to the people of the state, and I 
doubt whether there is a single pa- 
per in the state that has urged reas- 
ons why a constitutional conven- 
tion should be held at this time, but 
what has placed front and foremost 
among the reasons therefor, the re- 
organization of our courts, and now, 
why refer this matter back to the 
judiciary committee for the purpose 
of taking into consideration a subject 
matter which the people of the state 
have denounced, which they have 
pronounced upon? If there is any 
question in respect to our constitu- 
tion which has been passed upon by 
the people of the state over and over 
again, and with a certainty that can- 
not be questioned, it is this one in 
respect to the supreme court of the 
state. Why, I ask, refer this ques- 
tion back to the committee to take it 
again into consideration? It has al- 
ready been considered bv the com- 



mittee, and they believe that in re- 
porting for an Independent supreme 
court;, they have reflected the wishes 
of a very large majority of the peo- 
ple of this state, and unless this con- 
vention goes up hill just for the sake 
of sliding down again, and does 
things merely for the sake of undo- 
ing them it will vote down this pro- 
position. It was most certainly true 
that this convention has over and 
over again during its session, declar- 
ed in favor of an independent su- 
preme court. I believe that to be the 
desire of a large majority of this 
convention, and in that they but re- 
flect the sentiment of their constitu- 
ents. Why this trifling? The reas- 
on which the gentleman urged — -the 
want of ample time avails nothing, 
because had that been the only ex- 
cuse, or only reason why the conven- 
tion ought to have been called, it 
would have been urged for the pur- 
pose of increasing the judiciary, for 
the purpose of increasing the mem- 
bers of the court, so as to give them 
more time to devote to the business 
of the supreme court. But that was 
not it, Mr. President, it was against 
the system that the people of the 
state denounced their objections; it 
was against the determination of 
questions finally by a portion at least 
of the judges who passed upon those 
questions at nisi prius; it was for 
the purpose of relieving the su- 
preme court entirely of an improper 
influence v/hich it was feared might 
be felt, which perhaps it was feared 
had been felt in times gone by. Now, 
sir when we have it brought to our 
minds in so many ways and from so 
many sources that the people are 



SEPARATE SUPREME COURT 



Tuesilay ) 



LAKE-REYNOLDS 



hostile to a supreme tribunal made 
up of judges who passed upon the 
questions in the court below, why 
dally with ihis question longer, and 
why spiMid time over it? I do not 
know that I care to say anything 
more on this question. The gentle- 
man says the district judges will 
have so much time. That is the very 
arpur.ipnt I have been advancing as 
a rp;'?on why there should be a less 
number of judges. The convention 
has passed upon that, however, and 
have determined in favor of five in- 
stead of four. With that I am con- 
tent, because when gentlemen upon 
this floor deliberately pronounce in 
favor of a proposition which they all 
understand, I am for letting it rest 
unless there is some new light shed 
upon the subject, calculated to 
change the minds of members. 
That question has been considered 
carefully, and while it is true that 
the business of the state could be 
done by three or four district judges 
with a reasonable amount of labor, 
still there has been a consideration 
urged upon this floor that affected it; 
it is this, that the state is so large in 
extent, and some districts so large 
In territorial area, that the interests 
of the people seemed to demand, not 
in respect to the amount of business, 
but in respect to their convenience, 
that there be five instead of four, and 
the convention having pronounced 
in favor of five, I propose to leave it 
as it stands. I trust Mr. President, 
that the good sense of this conven- 
tion will let this matter rest where 
It has bqen placed, with an indepen- 
dent supreme court, just where the 
people desired we should place it. If 



the convention will reduce the sala- 
ry of the supreme judges to $3,000 
per annum, just where the committee 
left it, they will do what I think is 
right, and the article will be just 
what it should be. 

Mr. WAKELEY. Mr. President. 
After this expression from the chair- 
man of the judicial committee, I 
will withdraw it. 

The PRESIDENT. The question 
is upon the engrossing for reading 
a third time. 

The motion was agreed to. 

Mr. REYNOLDS. Mr. President. 
I wish to present a report from the 
committee on enrollment and en- 
grossment. 

The secretary read the report, as 
follows: 

Mr. President — Your committee 
on engrossment and enrollment to 
whom was referred the executive ar- 
ticle beg leave to report they have 
examined the said article and find 
it to be correctly engrossed. 

H. M. REYNOLDS. 

Chairman. 

The PRESIDENT. The executive 
article will be taken up, read a third 
time and put upon its passage. 

The secretary proceeded to read 
the article, when it was found that 
section twenty was omitted, and the 
article was ordered re-engrossed. 

The PRESIDENT. The report of 
the committee on education is now 
before the convention. 

Mr. PHILPOTT. Mr. President. I 
withdraw my original proposition 
and submit th:e following: 

The secretary read the proposition 
as follows: 



UNIVERSITY REGENTS 



279 



Tuesday] 



PHILPOTT— STRICKLAND 



[August 1 



"The general government of the 
university of Nebraska and the man- 
agement of the funds shall be vested 
in a board of regents, to be styled 
"The Board of Regents of the Uni- 
versity of Nebraska," one member 
of which shall be elected in each 
judicial district by the electors there- 
of. Their duties, powers and terms 
of office shall be prescribed by law^" 

Mr. ROBINSON. I move that the 
words "under the direction of the 
legislature" be inserted between the 
words "shall" and "be." 

Mr. PHILPOTT. I accept the 
amendment. 

Mr. ESTABROOK. I would like 
to enquire whether this is not in di- 
rect conflict with section twenty of 
the executive article? Is it proposed 
to create a board by special provis- 
ion of the constitution, to have 
charge of the funds of the universi- 
ty, and who are to be paid a salary, 
or paid nothing? Let us see what 
the system would be if under the 
management of a board of regents 
who do it for nothing. I find in a 
report of the treasurer of the uni- 
versity about how it would act. It 
is done for the honor of the thing, 
but somehow or other under this sys- 
tem of service we find that com- 
mencing on the tenth of January, 
1871, and closing June 23rd, that 
the amount paid for mileage foots up 
the little sum of $1,132. One man 
gets $1SG, another $182, another 
$177. GO, and so on. I do not see 
much difference between paying this 
sum and hiring a man. 

Mr. HASCALL. I ask the gentle- i the university fund, and what fund 
man from Lancaster (Mr. Philpott) is that? 

to append something in regard to it has been clearly defined by our 
compensation to his proposition. legislature, by the very first section 



Mr. PHILPOTT. I will add thb 
following: "They shall receive no 
compensation except actual neces- 
sary expenses." 

Mr. PRESIDENT. The adoption 
of the proposed section in lieu of 
section nine will very considerably 
interfere with section eleven which 
was adopted in committee of the 
whole. It is claimed by the gentle- 
man from Douglas (Mr. Estabrook) 
that the management of the uni- 
versity and the control of its funds 
will be placed in the hands of certain 
parties. In whose hands shall the 
general government be placed? It 
most clearly will be, as I stated this 
morning, in the hands of the state 
superintendent of public instruction 
and such other officers as the legis- 
lature shall direct. It appears to 
have certain officers already in ex- 
istence, "Such other officers as the 
legislature shall direct." Who are 
those officers? Most clearly the of- 
ficers whom the legislature shall di- 
rect; likely to be some of the exe- 
cutive officers. The objection I have 
against it going there is, the institu- 
tions will be in the hands of parties 
who will only hold office for two 
years, who will have their duties to 
discharge, and who I think will not 
be in a condition to give to the gov- 
ernment of the university the at- 
tention it should receive at their 
hands. Now, as to the funds I pro- 
pose shall be placed in the hands oi 
the regents to be elected. It is no 
other fund than the management of 



280 



UNIVERSITY REGENTS 



Tuesday] 



STRICKLAND 



[August 1 



of till' act passed February 15th, 
lStJ9. It is as follows: 

"Law of Nebraska. 18G9, Sec. 21 ol 
an Act to establish the University of 
Nebraska. 

The funds of the university shall 
]).' two, towit: The endowment fund 
shall be kept by the treasurer in two 
acrounts: That derived from the 
proceeds of the sale of lands donated 
to the state by the United States, 
"To establish and endow a state uni- 
versity" under the Act of Congress 
of April 19, 1SC4, in one account; 
and that derived from the proceeds 
of the sales of lands donated to the 
state by the United States, to provide 
"Colleges for the benefit of agricul- 
ture and the mechanic arts" in an 
Act of Congress approved July 2, 
1SG2, in another account. 

Section 11 of the report of the 
committee on education, school 
funds and lands. "The supervision of 
public instruction shall be vested in 
a state superintendent and such oth- 
er officers as the legislature shall di- 
rect. The superintendent shall be 
chosen by the qualified electors of 
the state in such manner as the leg- 
islature shall direct, his powers and 
duties shall be prescribed by law." 

Now, this shows clearly to what 
fund reference is had, when we say 
the regents shall have the manage- 
ment of its funds, the funds derived 
from this source, and these funds are 
derived from the sales of the lands. 
The gentleman from Douglas inti- 
mated that it was the intention of 
this proposition to give the control 
and management of the lands of the 
state university into the hands of the 
regents. Certainly not. We simply 
state the management of its funds, 
leaving the sale of the lands exactly 
where they are reported by the 
amendment. And that report is as 
follows: 



"The secretary of state, treasurer, 
attorney general, and commissioner 
of public lands and buildings shall 
exofficio constitute a board of com- 
missioners for the sale. leasing' 
and general management of lands 
and funds set apart for educational 
purposes, and for the investment of 
school funds in such manner as may 
be provided by law." 

Now, with that section I propose to 
do nothing at all except to provide 
for the management and control of 
the university fund, not of the uni- 
versity land. I leave them just ex- 
actly where the gentleman has re- 
ported them. Now, the gentleman 
from Douglas certainly misappre- 
hends the meaning and intention of 
the section, or else he would not 
have said it was the intention to 
place the management of these lands 
in the hands of the regents. 

Again, some have intimated it 
would be appointing additional of- 
ficers. Now, perhaps it will be. And 
if it is, I desire gentlemen to consid- 
er this. By the eleventh section 
which is now proposed and has been 
adopted in the committee of the 
whole, the gentleman from Doug- 
las intimates that the management 
of the university shall be in the 
hands of the legislature. Now, if 
they say that is to go into the whole 
management of persons to be se- 
lected by the legislature, then if we 
place it in the hands of regents elect- 
ed by the people, I apprehend there 
will be very few more officers elected 
by the provisions of the section I 
propose, than under the provision of 
the eleventh section as reported by 
the committee of the whole. 

Again, the gentleman from 
Douglas asks this question: "shall 



UNIVERSITY REGENTS 



281 



Tuesday] 



STRICKLAND— ROBINSON 



[ArgusD 1 



the fund be placed in the hands of 
amateurs, mere individuals, persons 
to strut about town?" It is no more 
placing them in the hands of "mere 
individuals and persons to strut 
about town," than to place it in the 
hands of the officers whom the gen- 
tleman has indicated by the eleventh 
section. I call the attention of gen- 
tlemen to the fact that the power 
and duty of the regents are to be 
prescribed by the legislature. I want 
to know if we may not reasonably 
expect that the legislature will throw 
around those regents safeguards by 
which those moneys may be safely 
kept? I have no doubt, and I am of 
the opinion that the control and 
management of the university funds 
ought to be in the hands of persons 
specially charged with it. It is pro- 
vided that they shall have no com- 
pensation, except actual necessary 
expenses. The gentleman from 
Douglas has referred to the amount 
of expenses already incurred by the 
regents. It may be they have exceed- 
ed more than the actual expense. 
They are allowed twenty cents per 
mile each way. Now, it dees not 
cost that much to travel in this coun- 
try; and I propose that this sec- 
tion shall provide that they have 
only actual expenses. And the leg- 
islature shall establish a guard 
around them that these men 
shall report their expenses under 
oath. And I think we can allow 
them that if they take charge of the 
university and govern it well. 

Mr. ROBINSON. I am inclined to 
think that this question is going to 
be a vast one. I must confess there 
is, to my mind, some force of reas- 



on in the objection raised by the 
gentleman from Douglas. Now, if 
I have the section properly, it is 
"that the secretary of state, treasur- 
er, attorney general and commis- 
sioner of public lands and buildings, 
shall exofficio, constitute a board of 
commissioners for the sale, leasing 
and general management of lands 
and funds set apart for educational 
purposes, etc." Now, sir, I cannot, 
for the life of me, see how these two 
sections can stand together and 
make sense. If the board of regents 
have the control and management 
of the university funds, then certain- 
ly the board provided for in section 
twelve cannot have the manage- 
ment of those funds. My own view 
is that there ought to be a board of 
regents or some body who shall have 
the general management and super- 
intendence of the affairs of the uni- 
versity — only a mere general man- 
agement of its affairs, not its funds 
—furnishing the proper apparatus, 
fuel and all sorts of supplies. I 
would make special appropriations 
by law upon which they could draw 
upon for that purpose. But I am not 
in favor of trusting funds to the 
board of regents. They ought to be 
entrusted to the executive officers of 
the state, and these two sections, I 
think, could be made to stand to- 
gether if we conferred upon a board 
of regents simply the general super- 
intendence of the affairs of the uni- 
versity, and not the general man- 
agement of its funds. 

Mr. McCANN. Mr. President. It 
may be necessary or proper that I 
should say a word or two in regard 
to this board of regents. It seems 



UNIVERSITY REGENTS 



Tues«lnyl 



Met ANK— PHILPOTT 



[August 1 



to me that more than the actual nec- 
essary expenses have been incurred. I 
suppose the secretary of the board 
of resents has been governed by the 
law allowing those regents the twen- 
ty cents per mile in lieu of compen- 
sation and necessary expenses. It 
will be seen that some six meetings 
have been held since the first of 
January. I think two of those 
uioptings were committee meetings; 
and the number of meetings has 
been rendered necessary by the fact 
that of the election of professors, and 
the fact that some two or three per- 
sons have declined on account of 
salary. I saw a letter today from 
Professor Hicock, of Illinois, declin- 
ing the position to which he was 
elected on that account alone. That 
gentleman is well known to many in 
this convention as one of the 
ablest educators in the west and 
we congratulated ourselves up- 
on securing the services of so emi- 
nent and good a man. But in his let- 
ter to the chancellor he stated that 
the salary would not pay the. expen- 
se of making the change of coming 
to Nebraska, and meet the actual 
necessary expenses of his family He 
is receiving more than we offer him, 
and more than he at first proposed to 
accept. He is now at Knox universi- 
ty, Illinois. This circumstance ren- 
dered it necessary that there should 
be another meeting of the board. 
Then again, it will be borne in mind, 
that our university was reported to 
be in an unsafe condition, and the 
first day of our session, at the re- 
quest of the members of the board, 
I nominated a citizen of Otoe county, 
and another citizen of Douglas coun- 



ty was nominated. A committee of 
three visited the university, but not 
being professional builders or ar- 
chitects they declined making a re- 
port. Then a commission, consisting 
of all architects — one from Otoe 
county, one from Douglas county, 
was constituted and their busine,^s 
rendered a meeting of the building 
committee necessary. I see one of 
the items charged, perhaps, by one 
or two of the' regents was for that 
reason. I, sir, attended a meeting of 
that board. I see I am charged with 
having received mileage to $22. I 
should be entitled to $06, but I have 
not received that money. The actu- 
al necessary expenses of a person, 
when he consents to take this posi- 
tion, going to and returning from 
the capital, should be borne by the 
state. And I am glad that the gen- 
tleman from Lancaster has scr 
wrought his amendment as to pro- 
vide for that. 

The PRESIDENT. The question 
is upon the motion to strike out 

Mr. PHILPOTT. Mr. President. I 
accept the amendment of the gentle- 
man from Douglas (Mr. Hascall.) 

The PRESIDENT. The question 
is upon the motion to strike out sec- 
tion 9 and substitute the following: 

"The general government of the 
university of Nebraska and the man- 
agement of its funds, shall, under the 
direction of the legislature be vested 
in a board of regents to be stvled, 
"The Board of Regents of the Uni- 
versity of Nebraska," one member of 
which shall be elected in each ju- 
dicial district by the electors thereof; 
their duties, powers and term of 
ofiice shall be prescribed by law, 
and they shall receive no compensa- 
tion for their service, except actual 



STATE BOARD OF EDUCATION 



283 



Tuesday' 



MAXWELL-PHILPOTT 



[August 1 



expenses incurred in discharge of 
their duties." 

The ayes and nays being demand- 
ed the secretary proceeded to call the 
roll. 

The President announced the re- 
sult — Ayes, 22; nays, 16, — as fol- 
lows: 



Abbott, 

Campbell, 

Cassell, 

Griggs, 

Hascall, 

Hinman, 

Kenaston, 

Kilburn, 

Kirkpatrick 

Lake, 

McCann, 

Majors, 

Ballard, 

Curtis, 

Estabrook, 

Gibbs, 

Gray, 

Griggs, 

Lyon, 

Mason, 



AYES. 

Maxwell, 

Myers, 

Philpott, 

Price, 

Reynolds, 

Robinson, 

Sprague, 

Thummel, 

Tisdel, 

Towle. 

Weaver. ^ — 2 2. 

NAYS. 

Neligh, 

Scofield, 

Shaff, 

Speice, 

Stevenson, 

Thomas, 

Vifquain, 

Wakeley. — 16. 



ABSENT AND NOT VOTING. 



Boyd, 

Eatonj, 

Granger, 

Grenell, 

Ley, 

Manderson, 

Moore, 



Newsom, 

Parchin, 

Parker, 

Stewart, 

Woolworth, 

Wilson, 

Mr. President.- 



-14. 



So the substitute was adopted. 
The secretary read the next sec- 
tion, as follows: 

Sec. 10. Schools for the benefit of 
the deaf and dumb and the blind 
shall be fostered and supported. 

Mr. MAXWELL. Mr. President. I 
move to strike out the word 
"schools" and insert the word "insti- 
tutions." 



The convention divided and the 
motion was agreed to. 

Mr. PHILPOTT. Mr. President. 
I move to amend the section by in- 
serting after the word "blind" the 
words "and idiots." 

Amendment not agreed to. 

The section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 11. The superintendent of 
public instruction, secretary of state, 
treasurer and attorney general shall 
constitute a board of commissioners 
for the sale, leasing and general 
management of all lands and funds 
set apart for educational purposes, 
and for the investment of school 
funds, in such manner as may be 
provided by law. The superintend- 
ent of public instruction shall be the 
presiding officer of the board. Any 
three members shall constitute a 
quorum. Such board shall also have 
the general management and con- 
trol of the affairs of the state nor- 
mal schools, and the state university 
and agricultural college, and shall 
take the place and do the duties of 
regents of said institutions. Such 
board shall also have the general su- 
pevvisloii of pi\blic instruction in 
the state. 

Mr. GRIGGS. Mr. President. I 
move the section be stricken out. 

The motion was agreed to. 

The secretary read a substitute of- 
fered by Mr. Hinman, as follows: 

"The legislature shall provide by 
law for an enumeration of the in- 
habitants of the state in the year 
IS 75, and at the end of every ten 
years thereafter and at their first an- 
nual session after such enumeration 
and every two years thereafter the 
legislature shall apportion the mem- 
bers of the senate and house of rep- 
resentatives according to the num- 
ber of inhabitants excluding Indians, 



*284 



THE EXECUTIVE ARTICLE 



Tuesday] 



TOWLE-MAXWELL— HASCALL 



[August 1 



not taxed, and soldiers and officers 
of the United Slates army and 
navy: provided that when no 
enumeration shall have been made 
within one year previous to 
said apportionment it shall be made 
in proi)ortion to the number of 
votes polled at the general election 
immediately previous to said elec- 
tion; provided, however, that in the 
first or present apportionment each 
organized county in the state hav- 
ing at the last enumeration 000 in- 
iiabitants shall be entitled to at least 
one ren'-esentative which shall not be 
diminished at any subsequent appor- 
tionment." 

The PRESIDENT. The question 
is on the adoption of this substitute 
for section eleven. 

Mr. ROBINSON. Mr. President. I 
move to strike ont the words "in 
such manner as the legislature may 
direct." 

Mr. WEAVER. Mr. President. I 
move to strike out the whole section. 

The motion was not agreed to. 

The PRESIDENT. The question 
is on the motion of the gentle- 
man from Lancaster (Mr. Robinson.) 

Mr. TOWLE. Mr. President. I 
will suggest that it is unnecessary to 
say in this section In such manner as 
the legislature may direct as we have 
provided for that in the executive 
article. 

Mr. MAXWELL. I would like to 
hear the section referred to, the ex- 
ecutive article, read. 

Mr. ESTABROOK. Mr. President. 
I don't think these duties are provid- 
ed for in the executive article. 

Mr. HASCALL. Mr. President. 
The first section of the executive re- 
fers to the duties of officers. I call 
for the reading of it. 



The secretary read the section, as 
follows: 

Sec. 1. The executive department 
shall consist of a governor, lieuten- 
ant governor, secretary of state, au- 
ditor of public acounts, treasurer, 
superintendent of public instruction, 
attorney general and commissioner 
of public lands and buildings, who 
shall each hold office for the term of 
two years, from the first day of Janu- 
ary next after his election, and until 
his successor is qualified and elected; 
provided, however, that the first elec- 
tion of said officers shall be holden 
on the Tuesday succeeding the first 
Monday in November, 1871, and the 
officers then elected shall each hold 
his office for the term of one year, or 
until his successor is elected and 
qualified. They shall, except the 
Lieutenant governor, reside at the 
seat of government during their term 
of office, and keep the public records 
books and papers there, and shall 
perform such duties as may be pre- 
scribed by law. 

Mr. MAXWELL. Now, Mr. Presi- 
dent, I would like to have the substi- 
tute read. 

The secretary read the substitute 
for section 11, as follows: 

Sec. 11 The supervision of pub- 
lic instruction shall be vested in the 
state superintendent and such other 
officers as the legislature shall pro- 
vide. 

The superintendent shall be chosen 
by the qualified electors of the state 
in such manner as the legislature 
shall direct ; his powers and duties 
shall be prescribed by law. 

Mr. HASCALL. Mr. President. I 
move to strike out all after the words, 
"as the legislature shall provide." 

The motion was agreed to. 

The PRESIDENT. The question 
is on the adoption of the substitute 
as amended. 

The substitute was adopted. 



THE LEGISLATIVE ARTICLE 



285 



Tuesday] 



TO WLE— KIRKPA TRICK 



[August 1 



The secretary read the next sec- 
tion, as follows: 

Sec. 12. The secretary of state, 
treasurer, attorney general, commis- 
sioner of public lands and buildings 
shall exofficio constitute a board of 
commissioners for the sale, leasing 
and general management of all lands 
and funds set apart for educational 
purposes, and for the investment of 
school funds, in such manner as may 
be provided by law. 

The twelfth section was adopted. 

The secretary read the next sec- 
tion, as follows: 

Sec. 13. Xo sectarian instruction 
shall be allowed in any school or in- 
stitution supported by the public 
funds set apart for educational pur- 
poses, nor shall the state accept of 
any grant, conveyance or bequest of 
monies, lands or other property to be 
used for sectarian purposes. 

Section thirteen was adopted. 

The PRESIDENT. The question 
is on the adoption of the article as 
amended. 

The article was adopted. 

The PRESIDENT. The question 
is on the engrossment of article on 
education just adopted for its third 
reading. 

The article was ordered engrossed 
for a third reading. 

Committee of the WTiole. 

Mr. HASCALL. Mr. President. I 
move that we now go into commit- 
tee of the whole on the report of the 
legislative committee. 

The motion was agreed to. 

So the convention went into com- 
mittee of the whole, Mr. Scofield in 
the chair. 

The CHAIRMAN. You now have 
under consideration the report of the 



legislative committee. 

Mr. TOWLE. Mr. Chairman. I 
move that we dispense with the read- 
ing of the article and take it up sec- 
tion by section. 

The motion was agreed to. 

The secretary read the first sec- 
tion. 

Section 1. The legislative authori- 
shall be vested in a senate and house 
of representatives. 

The section was adopted. 
The secretary read the next sec- 
tion, as follows: 

Sec. 2. The enacting clause of all 
bills shall be: "Be it enacted by the 
Legislature of the State of Nebras- 
ka," 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 nays enter- 
ed upon the journal. No bill shall 
embrace more than one subject, and 
that shall be expressed clearly in the 
title. 

Mr. HASCALL. Mr. Chairman. 
The section we adopted the other day 
stated that if there were more than 
one subject contained in a bill, it 
should be void only as to the subject 
not expressed in the title. 

The CHAIRMAN. That motion 
did not carry. 

Mr. KIRKPATRICK. Mr. Chair- 
man. I would like to have the 
chairman of the committee give a lit- 
tle information in regard to some 
phraseology in this section. I un- 
derstand it would require an abso- 
lute majority of both branches of the 
legislature to vote on a law before it 



2S6 



FORM OF ENACTIiSG LAWS 



Tuesday] 



TO WLE-H A S C A LL-MYERS 



[August 1 



is passed. I think that a quorum 
ought to constitute a legislature, and 
ought to be competent to legislate 
und enact laws. Now, sir, if the con- 
currence of an absolute majority of 
both houses of the legislature is re- 
quired, in many cases laws will not 
be carried at all. I think that pro 
vision is in the old constitution. 

Mr. TOWLE. Mr. Chairman. I 
think the word assent is proper. It 
is taken from the constitution of 
New York, Iowa and Missouri. We 
find in nearly all constitutions that 
in no case shall a bill pass without 
a majority of the members elected. 

Mr. HASCALL. Mr. President. I 
find section fourteen of the New 
York constitution which we adopted 
in the committee of the whole before 
says, "no law shall embrace more 
than one subject, which shall be nam- 
ed in the title." That is clear, con- 
cise language, there is no mistaking 
it. I therefoi'e move to strike out all 
after the word "journal" in fifth line 
and insert the following: 

"Xo law shall embrace more than 
one subject, which shall be named in 
the title; but if the title contain only 
one subject, the law shall be valid as 
to that, and void as to all other sub- 
jects. No law shall be revised, al- 
tered or amended by reference to its 
title only, but the act revised, or the 
section or sections thereof, as altered 
or amended, shall be re-enacted and 
published at length." 

Mr. MYERS. Mr. President. It is 
not very material to me whether the 
amendment is adopted or not. I 
think the section is amply sufficient 
for all practical purposes, that no 
bill shall embrace more than one 



subject. The New York section is 
wordy and amounts to nothing 
more. This report was considered 
by the committee from the basis that 
was submitted to it in the former 
committee of the whole, and the 
committee had no knowledge of the 
passage of the clause named by my 
colleague (Mr. Hascall). It was not 
acted upon. The copy the committee 
acted upon I believe. But as it 
stands it covers the entire subject. 
It prohibits the passage of more than 
one subject in one bill. 

Mr. HASCALL. There is no pro- 
vision, that I have discovered, that 
would require a section or a bill that 
is amended to be re-enacted, and as 
I asked the gentleman a question he 
refuses to answer, it is fair to sup- 
pose that there is no such provision 
in this report. It ought to be there, 
and no legislative article would be 
perfect without it. The difficulty in 
searching up laws wherein the acts 
are not re-enacted at length, and the 
evils resulting from it, are so great 
we ought to have it. 

Mr. LAKE. Mr. Chairman. Upon 
full consideration, a few days ago, in 
committee of the whole, this house 
declared their preference for the sec- 
tion which has been referred to — 
section fourteen of the New York 
constitution. That section obviates 
one difficulty which has been experi- 
enced by the members constituting 
the district and supreme courts of 
this state ever since the organization 
of the state government. The lan- 
guage of our old constitution, like 
the language of this section now un- 
der consideration, is that no bill shall 
contain more than one subject, 



FORM OF AMENDING LAWS 



287 



Tuesday] 



[August I 



which shall be clearly expressed bj^ 
its title. Now, there are conflicting 
decisions as to the effect of this pro- 
vision, some courts declaring it is 
mandatory, others that it is merely 
directory, etc. In order to obviate 
this uncertainty I hope that sec- 
tion fourteen of the New York con- 
stitution which provides that "no 
law shall embrace more than one 
subject, which shall be named in the 
title, but if the title contain only 
one subject the law shall be valid as 
to that and void as to any other." 
That makes it very clear. There can 
be no omnibus laws passed under 
such a provision. Whereas, under 
the old constitution and by the terms 
of this provision reported by the 
committee the legislature may, per- 
haps, do as they please — obey the 
provision or not. Such decisions 
have been made. We find them in 
the books of reports, and now for 
the purpose of making the constitu- 
tion clear on this subject and that 
we may have a provision that shall 
be obeyed and not left to the option 
of the legislature, it was thought by 
the committee, the other day, that 
the New York section should be, and 
it was adopted. Again, this sec- 
tion from the constitution of New 
York provides, further, "but if the ti- 
tle contain only one subject the law 
shall be valid as to that, and void 
as to all other subjects." That is, if 
it is attempted by the legislature, af- 
ter having stated a subject in the ti- 
tle to a bill to go on and, in therein 
include other matters under that 
head, that the law nevertheless, shall 
be valid as to the subject mentioned 
in the title, and void as to the resi- 



due. This will make it imperative 
upon the courts what kind of a rul- 
ing they shall make when a law, ob- 
jectionable in this regard is brought 
before them for consideration. Then 
this other provision that we find in 
this section, the substance of which 
was taken from our old constitution, 
is a very important one. It is, "No 
law shall be revised, altered, or 
amended by reference to its title 
only: but the act reviewed, or a sec- 
tion or sections thereof, as altered or 
amended, shall be re-enacted and 
published at length." Now, this pro- 
vision, as I have read from the New 
York constitution, is far more precise 
and definite than the similar pro- 
visions we find in our old constitu- 
tion. According to its provisions, 
there was some difference of opinion 
as to whether the act should not con- 
tain the old act, as it read before 
amended, and also as it would read 
after having been amended. That, 
however, was settled in the courts of 
this state to mean just what is de- 
clared in the constitution of New 
York — that is that the act revived 
or the section or sections as altered 
or amended, shall be re-enacted and 
published at length. I think that 
this fourteenth section of the New 
York constitution is clearer and bet- 
ter than any provision on this sub- 
ject which I have seen. It coincides 
precisely with what the decision of 
our supreme court has been on these 
questions, when they have arisen 
under our old constitution. But as I 
have before said, there have been 
conflicting decisions. The courts of 
Indiana decided one way and the 
courts of Ohio another. In order 



28S 



FORM OF AMENDING LAWS 



Tuosday) 



MYERS-ROBINSON 



Autrust 1 



that It may be settled, that the law- 
yers of the state, the legislature and 
all concerned, may understand what 
is the effect of this provision, it had 
belter be made clear, and put in con- 
cise and certain language; and I hope 
this language in the fourteenth sec- 
tion of the New York constitution 
will be retained as reported in the 
committee of the whole house the 
other day. 

Mr. MYERS. Mr. Chairman. I 
have a few words to say with refe- 
rence to this subject, notwithstand- 
ing the exposition of my colleague 
on my right, (Judge Lake.) I still 
think this bill is not only ample for 
the confirmation of all courts, but al- 
so for the people. That no bill shall 
embrace more than' one subject, and 
if it embraces more than one, it 
falls, it must neccessarily fall, be- 
cause it is in violation of this provis- 
ion. The difference between a bill 
and a law is this — that the bill must 
conform to this part of the constitu- 
tion before it can become a law. It 
is similar to a law as applied and 
used in this section. "No bill shall 
contain more than one subject." 
Consequently as a necessary sequence 
no law can contain more than one 
subject, and that shall be expressed 
clearly in the title. I am opposed, 
Mr. Chairman, to the New York pro- 
vision for the reason that it cumbers 
the statute books with repealed laws; 
that you will have large and ponder- 
ous volumes of laws recited and 
marked, when a mere note in refer- 
ence to them would be amply suffici- 
ent for every intelligent reader, 
whether he be a lawyer or not. I 
think, sir, that is every object of the 



New York law requiring the act to 
recite what we repeal, when it could 
' simply be referred to. The supreme 
court of this state, I believe has giv- 
en a decision in favor of the provis- 
ion in this constitution — that the law 
was not required. 

Mr. LAKE. The courts of this 
state have decided that a new law 
or an act shall contain that portion of 
the old law which was revived, as 
amended or as revived. 

Mr. MYERS. I do not hold that it 
is necessary to have that in. 

Mr. ROBINSON. It is perfectly 
clear, I think, to every man, who 
has had experience under those con- 
stitutions where it is allowable to 
amend by mere reference to it, that 
this amendment ought to prevail. 
According to this section, it will be- 
come the duty of the legislature to 
amend any act by stating that the 
act is hereby amended, by striking 
out such and such words. You are 
compelled to have a volume contain- 
ing the amendments and a volume 
containing the thing before amended. 
But if this amendment prevails you 
will have a volume with the law just 
as it is. It prevents a good deal of 
logrolling in the legislature. I hope 
the amendment will prevail. 

The amendment was agreed to. 

The section as amended was adopt- 
ed. 

The Chairman read the next sec- 
tion: 

Sec. ?,. The legislature shall pro- 
vide by law for an enumeration of 
the inhabitants of the state in the 
year one thousand eight hundred and 
seventy-five, and at the end of every 
ten years thereafter; and at their 



LEGISLATIVE AFrORTIONMENT 



289 



ESTABROOK—HINMAN— MAXWELL 



[August 1 



first annual session after such enu- 
meration, and also after each enu- 
meration made by the authority of 
the United States, the legislature 
shall apportion to the number of in- 
habitants, excluding Indians not tax- 
ed, and soldiers and officers of the 
United States army and navy. 

Mr. GRIGGS. I move to insert, 
after the word "year," in the second, 
line the words "eighteen hundred 
and seventy-two." 

The PRESIDENT. The question 
is upon the amendment of the gentle- 
man from Gage (Mr. Griggs.) 

The committee divided and the 
amendment was not agreed to. 

Mr. ABBOTT. Mr. Chairman. I 
move to insert after the word "appor- 
tion," in the fourth line the words 
"members of the legislature accord- 
ing to." 

The amendment was not agreed to. 

Mr. ESTABROOK. Mr. Chairman. 
I move to insert, after the word 
"thereafter," in the second line, the 
words "and at no other time." It 
will be remembered that there was a 
good deal of discussion on this par- 
ticular thing in the old constitution. 
In fact there was a very important 
law suit grew out of this at one 
time. 

The CHAIRMAN. The question is 
upon the amendment offered by 
the gentleman from Douglas (Mr. 
Estabrook.) 

Mr. HINMAN. Mr. Chairman. I 
wish to offer a substitute for the sec- 
tion, and as it is difficult for the sec- 
retary to read my writing, I will 
read it myself: 

"The legislature shall provide by 
law for an enumeration of the in- 
habitants of the state in the year 

19 



1875, and at every ten years there- 
after, and at their first annual ses- 
sion after such enumeration, and 
every two years thereafter, the legis- 
lature shall apportion the members 
of the senate and house of represen- 
tatives according to the number of 
inhabitants in the state, excluding 
Indians not taxed, and soldiers and 
officers of the United states army and 
navy: provided that when no enu- 
meration shall have been made with- 
in one year previous to said appor- 
tionment, it shall be made in pro- 
portion to the number of votes polled 
at the general election immediately 
previous to said election: provided 
however that in the first or present 
apportionment, each organized coun- 
ty in the state having at the last enu- 
meration GOO inhabitants, shall be 
entitled to at least one representa- 
tive, which shall not be diminished 
at any subsequent apportionment." 
I move its adoption, Mr. Chair- 



The CHAIRMAN. The question is 
upon the adoption of the substitute 
offered by the gentleman from Lan- 
caster (Mr. Hinman.) 

Mr. MAXWELL. Mr. Chairman. 
It seems to me the section reported 
by the committee is about as good as 
we can get. It seems to me' that if 
we limit this in this manner, we may, 
perhaps, do injustice. It seems to 
me it is taking power from the legis- 
lature that it may do gross injustice; 
may be counties of 10,000 inhabi- 
tants would have no representation. 
If our population should continue to 
increase as it has I trust that the 
section as reported by the commit- 
tee will be retained. 

Mr. ABBOTT. Mr. Chairman. It 
it be in order, I now move that the 
further discussion upon this section 
be deferred until after the report of 



2 no 



LEGISLATIVE APPORTIONMENT 



Tuesdny) 



HINMAN— HASCALL-MANDERSON 



[August 1 



the committee on le{2rislative appor 
tionment. 

Mr. HINMAN. Mr. Chairman. I 
feel interested in this matter. The 
gentleman has spolten of the number 
of representatives that will be added 
by the adoption of this substitute. I 
find it will add one representative to 
York county and one to Stanton 
county, only. Now, if we are likely 
to reach apportionment very soon I 
would be willing to postpone. In 
view of the great increase of our 
population in the new counties I 
say this matter should be attended 
to. I say, sir, many of these counties 
have doubled in population since the 
present apportionment was made, 
and yet they are not represented on 
thiS floor. They propose to put off 
the enumeration and apportionment 
until 1875. Is it rightto those persons 
who shall come here to make their 
homes in our state during those five 
years: have they no rights? And 
the western counties which are fill- 
ing very rapidly. I think the older 
portion of the state should allow 
them a little liberty further at least, 
than an apportionment only onde in 
ten years. 

Mr. HASCALL. Mr. Chairman. As 
I stated on a former occasion I think 
the whole question might be reached 
in this way. Now, if we will go on 
and increase the number of members 
of the legislature so as to have a 
basis for apportionment, the appor- 
tionment will have to be made. The 
plan is this, that all the counties 
in the state, that shall by the last 
census, have 500 inhabitants shall 
have one representative, and that 
those that have less shall be group- 



ed together in a convenient district 
and give them a representative and 
then exclude those counties from 
the general apportionment of the 
state; then to obviate this difficulty, 
with counties not yet recognized or 
limits defined or no population re- 
ported, that if they shall hereafter 
obtain a population equal to one- 
half the number fixed as the ratio 
of representation, then an enumera- 
tion may be had at the expense of the 
county to ascertain the population. 
This is a liberal proposition and if we 
do this every new county will be rep- 
resented and that too without being 
attached to a larger county that will 
absorb them. I see no way of ap- 
portioning the state in 1875, or at 
any other time except on the pro- 
portion of the population. 

Mr. MANDERSON. Mr. President. 
The provision as reported by the com- 
mittee provides for an enumeration 
in 1875, and every ten years there- 
after, and upon that enumeration an 
apportionment of the members of the 
legislature according to the number 
of that population. Now, we all find 
a difficulty growing out of this, that 
counties organized between these 
enumerations will be left out^ and 
how to remedy this is the question 
now. I think the suggestion of my 
colleague will correct this diflSculty. 
I propose if the gentleman from 
Lincoln (Mr. Hinman) will withdraw 
his substitute to offer the following, 
to be added to the section: 

"Any organized county without 
direct representation in the legisla- 
ture may upon application through 
its county commissioners to the 
governor of the state, procure by him 
the appointment of three census ta- 



LEGISLATIVE APPORTIONMENT 



291 



Tuesday] 



HASCALL—MANDERSON— ROBINSON 



[August 1 



kers, who at the expense of the coun- 
ty shall take a census thereof and 
return the same to the governor, and 
if it appears that the population of 
such county is equal to the number 
required at the last enumeration for 
one member -of the lower house of 
the legislature, then such county 
shall be entitled to one member 
thereof, and a special election shall 
be called therefor." 

Mr. HASCALL. I would suggest 
that you make it three-fifths. 

Mr. MANDERSON. I will do so. 

The PRESIDENT. The question 
IS on the motion to postpone by the 
gentleman from Hall (Mr. Abbott.) I 

The motion was not agreed to. 

Mr. MANDERSON. I now ask the 
gentleman from Lincoln to withdraw 
his substitute. 

Mr. HINMAN. I will withdraw it. 

Mr. MANDERSON. Now, Mr. 
President, I offer my amendment. 

The PRESIDENT. The question I ^^^^ ^^at, that is the maximum, 
is on the amendment of the gentle- Mr. ROBINSON. Are you going to 
man from Douglas (Mr. Estabrook) provide that all future legislatures 
to insert in line four after the word shall keep below the maximum? 



not already a representative in the 
legislature that if the county has no 
representation, that representative 
being a member or citizen of a coun- 
ty from the float. It may be repre- 
sented as part of a district, that I do 
not consider direct representation, 
and it is that I seek to cover. If the 
language is not sufficiently explicit 
it should be changed. 

Mr. ROBINSON. Mr. Chairman. I 
would like to suggest another thing. 
We are about to provide that the 
number of legislators will be limit- 
ed to thirty three at the utmost in 
the senate and one hundred in the 
house. Now, sir, when you have got 
your hundred in the house and thir- 
ty three in the senate, how are you 
going to get this extra man in? 

Mr. HASCALL. This number will 
be fixed probably at a less number 



"states" "or at any other time." 

Th's amendment was agreed to. 

The PRESIDENT. The question 
is on the amendment of the gentle- 
man from Douglas (Mr. Manderson.) 

Mr. ROBINSON. Mr. President. I 
would like to know what the gentle- 
man means by the words "direct rep- 
resentation?" 

Mr. MANDERSON. I do not know 
that the language is sufficiently ex- 
plicit. If there is anything I dislike 
it is float representation, it is worse 
than no representation, this does not 



Mr. HASCALL. It is their duty 
to do so, we may say "except as oth- 
erwise provided" when we come to 
that section. 

Mr. KIRKPATRICK. Mr. Chair- 
man. This amendment proposes to 
give to each county in this state a 
direct representative, and that each 
county shall take its own census. It 
strikes me that is rather an objec- 
tionable mode. 

Mr. ABBOTT. This census is to 
be taken by men appointed by the 
governor. 



Mr. KIRKPATRICK. Suppose the 
mean float representation, but I mean basis was 1000 inhabitants and a 
by It a county from which there is , county had only 600, that being 



21' 2 



LEGISLATIVE APPORTIONMENT 



Tuesduy] 



WEAVER— LAKE 



[August 1 



three-fifths of a thousand it would 
be entitled to a representative., al- 
though another county might have 
1000 or 2000, but they get no rep- 
resentation upon their excess of 
lopulation. 

Mr. MANDERSON. I have chang- 
ed the wording of the amendment so 
that it reads "any organized county 
not constituting an entire represen- 
tative district, may upon application 
through its county commissioners, 
etc." 

Mr. WEAVER. Mr. Chairman. 
The objections I see to the proposed 
amendment is this. In the first part 
It says "any county not composing 
an entire representative district." 
Suppose a county in connection with 
some other county makes an entire 
representative district; we will sup- 
pose one thousand inhabitants enti- 
tles that district to a representative, 
we will suppose further that this 
county connected with the other 
county has 600 and the other coun- 
ty has 400. This county by showing 
that she has 600 inhabitants is en- 
titled to a representative, while this 
county in connection with another 
county has already one representa- 
tive, will you turn him out? There 
would be two representatives in a 
population of 1000 inhabitants'. 

Mr. LAKE. Mr. Chairman. This 
subject of representation is giving us 
a good deal of trouble, and I doubt 
whether we shall hear anything sug- 
gested that will be better than the 
provision in our own constitution 
which has been incorporated in the 
report of the committee in this sec- 
tion. Now, sir, it may be said that 
for a time, if some such provision as 



this is not incorporated in the con- 
stitution, there may be portions of 
the state, new counties, that may be 
unrepresented in the legislature. I 
think if the plan that has heretofore 
been acted upon is continued, such 
will not be the case. If a county just 
about commencing its settlement is 
attached to another for legislative 
purposes, it is represented, it has a 
voice in the election of representa- 
tives;, and it will be but a short time, 
if the population should increase so 
as to entitle it to a full rt.-prPsonta-- 
tive under the apportionment, it 
will be but a short time they will 
have to wait before they wil] be en- 
titled to this full repvojioritation 
which is now under consideration. 
It may be asked, why subject them to 
this inconvenience for any length of 
time? Mr. Chairman, I do not con- 
sider it any great inconvenience, they 
have a voice in the elections of the 
person who represents them, al- 
though perhaps being united with a 
more powerful neighbor their voice 
cannot entirely control the matter of 
who shall represent them, but still 
they can choose between the candi- 
dates, and can use their influence in 
such a manner as to make it felt for 
one candidate or another, and the 
experience of the past has demon- 
strated that such communities while 
suffering in certain cases, generally 
make their voice felt in the selection 
of representatives, occasionally it 
may be true that such is not the case, 
but generally they have done so. Now 
while these new counties are compel- 
led, perhaps, under the present state 
of things to wait for a certain length 
of time, if we should adopt this sys- 



LEGISLATIVE APPORTIONMENT 



293 



Tuesday] 



LAKE— MOORE 



[August 1 



tern which my friend General Man- 
derson is contending for, would work 
a hardship to counties which have 
hut one representative upon the 
floor, that have increased perhaps, 
much more rapidly in population 
than have these new counties that 
have been before without any inde- 
pendent representative. Suppose for 
instance a county which has hereto- 
fore been attached for representative 
purposes, has increased three or four 
times as rapidly as a new county has 
increased and supposing 1000 is the 
ratio of representation^ the county 
to which the new organized county 
is attached has increased its popula- 
tion up to 2000. Now, why say that 
this new organization should be rep- 
resented, that its people should have 
a voice; and that the 1,000 increase 
In the other county be left entirely 
unrepresented? There is no more 
injustice in the one case than in the 
other, and it would seem to me, that 
if you provide for this fractional rep- 
resentation for one county, you 
ought to provide for the same rep- 
resentation in all the others. I be- 
lieve, Mr. Chairman, that the system 
the gentleman from Douglas is en- 
deavoring to incorporate into this 
constitution will lead us into inex- 
tricable confusion. It will be pro- 
ductive of mischief far greater than 
those which have obtained under our 
present system. I believe in leaving 
this matter of new apportionment to 
the legislature. It must be expected 
that these new counties will be sub- 
jected to greater difficulties and em- 
barassments, for a short time. It is 
however for but a shor, luuv Ap- 
portionments will be mad>u.idev thi.-s 



provision of the constitution at such 
time as it can be done intelligently — 
that is, after each enumeration of the 
inhabitants. There are only five 
years between each eni'moration: 
and in the meantime, if these new 
communities are attached to other 
counties for legislative purposes, I 
think no great hardship will be 
worked. It must be borne in mind 
that such counties generally are at- 
tached and united together, which 
alone are not entitled to a repre- 
sentation under the apportionment. 
It may be that a county will grow so 
rapidly that within two years she 
would alone be entitled to a represen- 
tative upon the floor of the house of 
representatives. But might not the 
population of the county to which 
she is attached be increased much 
more rapidly? Very likely, and if 
the thousand persons who shall set- 
tle in such new county are entitled 
to a representative, ought not the 
other- 2,000 be entitled to a repre- 
sentative also? 

Mr. MOORE. Mr. Chairman. If 
I understand this matter properly I 
will offer an amendment — "and 
thereupon such county shall cease 
to be a part of such representative 
district." Mr. Chairman. I never 
was disposed to insist upon my 
rights derogatory to the rights of 
others. It is not my nature to do 
so. And if I ever do get a little too 
far in that line it is because I am 
driven to it. There seems to be a 
general disposition to look after me 
on the part of some members of this 
body unexpectedly it may be: and 
I thank them for it, and should op- 
portunity occur I will remember 



2i>4 



LEGISLATIVE APPORTIONMENT 



Tuesday 1 



MOORE— HASCALL 



[August 1 



them for it; while others seem not 
to be so — perhaps it is because they 
look at things entirely different. 
But I must say this that the people 
of the west}, since I came into this 
state, have always complained that 
the were not properly represented. 
Their representatives have been in- 
structed time and again to have some 
thing better done for them, if pos- 
sible. Nothing better has been done, 
so it is said. If members of the leg- 
ir^lature have come here a-vd 'lone all 
they could for the west, under the 
provision which was in our constitu- 
tion heretofore, then I say that pro- 
vision is not sufficient to govern this 
country in the future. And we want 
a better one if it has not been done as 
it should have been. It is possible 
some members are to blame for the 
want of proper performance of 
duty. I must say this — that five 
years' time is a long time for a 
county to lay out of representation. 
It is remarked here that you are 
represented. That is true in a cer- 
tain sense, but not in the sense the 
people, east or west, wish to be rep- 
resented. Instead of a basis of some- 
thing like 2,000 being represented by 
the members of this convention there 
are members from the west that are 
representing from 8,000 to 12,000. 
Do you suppose they believe that to 
be honest and fair and just? Would 
you think, if instead of living in 
Douglas county, you lived in York 
county, and other western counties, 
would you think it just and fair and 
right? It would be with you as it 
was with the lawyer and the farmer 
about the bill — it would change sides 
Instantly. I believe this amendment 



proposed by the gentleman from 
Douglas does seem to cover more 
ground; and it will give those coun- 
ties who increase in population rap- 
idly some chance to have an in- 
creased representation; and I think 
it is right. I will take, for instance, 
my own county. When the last ap- 
portionment was made, we number- 
ed, perhaps,, about 604. I received a 
note from our county clerk the other 
day placing the population at not less 
than 1,500, and his opinion was that 
it was 1.800. Now, if we had to run 
another year or two, and go on in- 
creasing as we have in the past, we 
not only lose one member but seve- 
ral. That is not right, and gentle- 
men will not ask us to submit to that. 
They will not insist upon us having 
that kind of representation. I think 
not, at least. If it was the reverse, 
I should feel like giving a (iiiect 
representation. And I believe that 
the majority of this body — three- 
fourths of this body — will give it tc 
us. I think that this additional 
amendment which I have offered will 
cover the grounds objected to by one 
of the gentlemen present — that in a 
case where there were 600 in one 
county and 400 in another, he says 
the 400 would have also a represen- 
tative. It is hardly probable where 
two counties lie contiguous to each 
other one will increase so rapidly and 
the other be very much behind; and 
I would suppose the representatives 
which had been elected to represent 
both counties should represent the 
district. 

Mr. HASCALL. If the gentleman 
will withdraw the proposition, I have 
one that I think will meet the case. 



LEGISLATIVE AFFORTIONMERT 



295 



Tuesday] 



MANDERSON— WEAVER— ROBINSON 



[August 1 



I propose to say, at the end of the 
section, "The county thus securing 
representation shall thereafter be de- 
tached from any representative dis- 
trict, including the same." 

Mr. MOORE. I accept that. 

Mr. MANDERSON. This amend- 
ment was drawn up by me quite 
hastily. I have lost the original, and 
I think the amendment offered by my 
colleague (Mr. Hascall) meets 
largely the objection urged by the 
gentleman from Richardson (Mr. 
Weaver) and I therefore accept it, 
and urge its adoption. 

The committee divided, and the 
amendment was agreed to. 

Mr. WEAVER. Mr. Chairman. 
The objection is not covered at all. 
It stands right square where it did. 
The amendment leaves it in just the 
exact shape it was in before. The 
gentleman from York thinks the ob- 
jection urged is not a very strong 
one. Let us suppose it in a different 
shape. That 1,000 are entitled to a 
representative, and 900 of those in- 
habitants were in one county and 
100 in another further west, mak- 
ing just the 1 000. S'-.ppof.e the 
county having the 900 applied for 
a representative, the other county 
may have grown two or three hundred 
and now is this county to be left 
without any representative? Now, 
sir, is this county to be left without 
a representative? I am satisfied that 
it is but reasonable that these coun- 
ties which have thousands, should 
have a representative when one, two 
and three hundred inhab;tanr,s mny 
have a representative, in other coun- 
ties. 



Mr. ROBINSON. Mr. Chairman. I 
think this obviates some danger and 
difficnlty. I will take the same illus- 
tration that was given by the gentle- 
man from Richardson (Mr. Towle). 
Suppose there are two counties taken 
together — one contains six hundred 
and the other four hundred inhabi- 
tants; when the one which contains 
the six hundred shall have secured 
the three-fifths additional it will be 
entitled to a separate representative. 
Now what is to become of this other 
county — to what other county shall 
it be attached? It seems to me we 
are going to get into the mud. Here 
is a county attached to an adjoining 
county, and neither of them contains 
sufiicient population to entitle them 
to separate r' presentaiire; one ol 
them increases 'a popula'^'o", ;.inv.l it 
has a sufficient number, thon they 
have got to be separated, now what 
are you going to do with the c.ouTi- 
ty which is left. 

Mr. HASCALL. Mr. Chairman, 
That can be explained very easily. 
We are working only on one part of 
this constitution now; when we get 
through with the entire constitution, 
this can all be made clear. We pro- 
pose to group tog"ether these small 
counties. When one county has suffi- 
cient population, under this three- 
fifths provision application will be 
made to the census taker and when 
the fact of this increase is ascer- 
tained, the county is immediately de- 
tached from the other counties form- 
ing the representative district to 
which it belonged. 

Mr. LAKE. (To Mr. Hascall.) 
What will you do If those counties 



2^6 



LEGISLATIVE APFOBTIONMENT 



Tuesday] 



HASCALL- WEAVER-LAKE 



[August 1 



which constitute the remainder of 
the district have not sufficient popu- 
lation to entitle them to a represen- 
tative? 

Mr. HASCALL. I would reach 
that. I say this proposition detaches 
this county from the district and the 
district remains intact, the same as if 
you had not detached territory. 

Mr. WEAVER. (To Mr. Hascall) . 
Suppose that the county that is de- 
tached has a representative, but the 
counties remaining, not having 
enough population to entitle the r. to 
a representative. Do you propose to 
leave them without one? 

Mr. HASCALL. I propose that all 
parts of the state shall be represent- 
ed. I have known serious evils to 
result by the passage of laws which 
impose burdens upon portions of the 
state, which would huve bt 3a avoid- 
ed if they ha'd representation and 
have determined that all localities 
should be represented in our legis- 
lature, if I could do anything to' 
bring about that result, so that they 
could show what they were entitled 
to. When we formed our districts 
here, we had to put an apportionment 
in the constitution. It is an impera- 
tive necessity that the apportionment 
committee should make an appor- 
tionment of the state, consequently 
the whole state will be divided off 
irto senatorial and representative 
districts. We will giv^ conn- 
ties that have a sufficient number 
o) inhabitants, accord'a^' to the 
last census, a representative; then 
those counties 'that have not this 
population, will be grouped together 
in districts and when it is ascertained 
that one of these is entitled, upon 



the basis proposed, to have a rep- 
resentative it will have it. It will 
immediately become detached from 
the original districts, but the districts 
remain. 

Mr. LAKE. (To Mr. Hascall.) Sup- 
pose the remainder of the district 
shall not have population sufficient to 
entitle it to representation? 

Mr. HASCALL. That is the point 
I was coming to. It may happen 
thus in a very few cases, but I think 
when it does, the older counties in 
the state can well afford to go with- 
out one representative. 

Mr. LAKE. (To Mr. Hascall.) Sup- 
pose that the person who is elected to 
represent this district lives in the 
county that is detached? 

Mr. HASCALL. That is just as 
plain as any proposition can be. We 
members are elected every year and 
consequently this election is for the 
next legislature. The legislators are 
elected in the fall, and the legisla- 
ture meets in January and it is not 
reasonable to suppose — in fact there 
could be no election, if the census 
was taken after the general election 
and before the meeting of the legis- 
lature. If there was a general elec- 
tion every two years and this census 
was taken every year then the gen- 
tleman's position might be tenable. 
I say this; that it is barely possible 
that such a thing might occur, as the 
gentleman suggested, but it is not 
probable. If a county contained 
more than three-fifths, on this ratio 
at the time this apportionment was 
made, it would form a district by 
itself. We must consider this whole 
article together — we must consider 



LEGISLATIVE APPORTIONMENT 



297 



Tuesday] 



HASCALL— TOWLE 



[August 1 



that if a county contains more than 
the three-fifths provided for here, 
it would have a representation of its 
own, and you would have more than 
two counties together to make a 
representative district. Consequently 
when this county was detached in 
this manner, it would still leave two 
or more counties in the district, and 
if the district as it remains should 
be allowed its representative, even 
though it should not have quite the 
required number of inhabitants, no 
harm would result; and I think 
the older counties can well afford 
to allow this, because it would dimin- 
ish their representation but a very 
small per cent. It would not inter- 
fere with the balance of the state 
in any respect whatever. It was 
found, last winter, that almost the 
entire western portion of the state 
was without representation; all that 
vast region was almost without rep- 
resentation at all. To be sure there 
was Gerrard, of Platte, in the senate, 
with Deals, of Hall, Goodin, of Sa- 
line, and Jenkins of Jefferson, in the 
"house, but this was but a small rep- 
resentation for the extent of territory 
included in their districts. Now I 
say, this for these gentlemen, — that 
so far as they knew the wishes of the 
people, they did their duty. It was 
impossible for them to know the 
wishes of the entire district they rep- 
resented. I say, we should avoid 
such things. Gentlemen may talk 
about "confusion" in this article, but 
I see no confusion in it. There can 
be no confusion in it, if you go 
through and make this article con- 
form to the other parts of the consti- 
tution. We will, under the first ap- 



portionment we make, give to coun- 
ties that contain over five or six 
hundred inhabitants a representa- 
tion of their own. When a county 
considers that it has a population 
which entitles them to a separate 
representation, the census takers 
will take the census, and give it a 
separate representation. When we 
make our apportionment, if it is 
found that old counties have this 
three-fifths over the number requir- 
ed, for a representative, we will give 
them that extra representation; if 
they have not this extra population, 
they will not be entitled to this ex- 
tra representation. We must take 
the whole article together; it is very 
easy to make these particular sec- 
tions conform to each other, then 
we intend to follow this up by adopt- 
ing this general principle and will 
produce order out of chaos, instead 
of having chaos result from this pro- 
position, — as gentlemen have sug- 
gested here. 

Mr. TOWLE. Mr. Chairman. It 
appears to me that the further we 
have got into this byway of amend- 
ments and substitutes, the further 
we have got into the mud. Now, it 
is a principle of all law that repre- 
sentation and taxes go together. It 
will be admitted that in those por- 
tions of the state lying along the 
river there is the most wealth, the 
taxes are large and from them come 
the most of the money into our state 
treasury, hence it follows that they 
should have a representation that 
shall be able to say aye or no to that 
which proposes to affect their inter- 
ests. I am willing to give these 
western counties a proper represen- 



298 



LEGISLATIVE APPORTIONMENT 



Tuesday] 



PRICE— ROBINSON— GRAY 



[August 1 



tatlon, but I deny that they should 
have an advantage over eastern and 
older counties. I will move" to re- 
consider the amendment offered hy 
the gentleman from Gage, that per- 
mits another apportionment to be 
made in 1872, for you must remem- 
ber that the apportionment made by 
this convention will be on the census 
taken before this. Each county should 
be entitled to the members which 
they have population for and there 
should be an enumeration every two 
years if it is necessary; therefore I 
move for a reconsideration of the 
vote by which the amendment of 
the gentleman from Gage (Mr. 
Griggs) was defeated, 

Mr. HASCALL. A motion to re- 
consider is not in order in the com- 
mittee of the whole. 

Mr. PRICE. Mr. Chairman. I 
would like to have this question de- 
ferred. I move that we rise, report 
progress and ask leave to sit again. 

Mr. ROBINSON. I move to amend 
that the committee rise and report 
back this particular section with the 
recommendation that it be recommit- 
ted to the committee on legislative 
apportionment. 

Mr. PRICE. I will accept that 
amendment. 

Mr. GRAY. Mr. Chairman. If 
this section is to be referred back 
and go now to the apportionment 
committee there is another feature 
I would like to have embodied in it, 
it is this, "There shall be no float 
districts or districts made up of ex- 
cess of population, or several dis- 
tricts either for senatorial or repre- 
sentation, and counties shall not be 



united in senatorial or representa- 
tive districts of a disproportionate 
number of inhabitants." I will ask 
to have this referred to the appor- 
tionment committee. If the gentle- 
man will withdraw his motion to al- 
low me to offer it as an amendment. 

Mr. PRICE. I have no objection 
to withdrawing my motion to allow 
it to go to the apportionment com- 
mittee. 

Mr. HASCALL. That is not nec- 
essary, it can go as it is. 

Mr. GRAY. Mr. Chairman. I 
will withdraw it. 

The CHAIRMAN. The question is 
on the motion that the committee 
rise, report section three of this ar- 
ticle back with recommendation 
that it be referred to the com- 
mittee on legislative apportionment. 

The committee divided and the 
motion was agreed to. 

Mr. SCOPIELD, Mr. President. 
The committee of the whole have 
had under consideration the report 
of the legislative committee and 
have instructed me to report pro- 
gress, and ask leave to sit again and 
recommend section three of this re- 
port be referred to the committee on 
legislative apportionment. 
Adjournment. 

Mr. MAXWELL. Mr. President. 
I move that we now adjourn until 
8 o'clock this evening. 

Mr. GRIGGS. Mr. President. I 
would like to have the gentleman 
withdraw his motion until I offer a 
resolution. (Leave.) 

Resolutions. 

Mr. GRIGGS. Mr. President. I 



APPORTIONMENT— OFFICIAL REPORTERS 



299 



Tuesday] 



A BBOTT— TO WLE-ROBIN SON 



[August 1 



have a resolution I wish to have re- 
ferred to the committee on legis- 
lative apportionment. 

The secretary read the resolution, 
as follows: 

"Provided, that the legislature 
shall also apportion the members of 
the legislature in the year 1872, and 
at every two years thereafter, ac- 
cording to the whole number of votes 
cast for the office of governor at the 
election next previous to such appor- 
tionment." 

Official Reporters. 

Mr. ABBOTT. Mr. President. I 
wish to offer a resolution. 

The secretary read the resolution, 
as follows: 

Resolved, That the official report- 
ers of this convention be allowed 
one day's pay for reporting each 
night session of this convention. 

Mr. TOWLE. I move to amend 
by saying "half day's pay." 

Mr. ROBINSON. Mr. President. I 
hope the resolution will be with- 
drawn for a few days. I do not 
think there is a disposition to have 
them work without pay. 

The ayes and nays were demand- 
ed. 

The secretary called the roll, and 
the president announced the result: 
Ayes, 24; nays, 17, as follows: 



YEAS. 



Curtis, 

Gibbs, 

Granger, 

Gray, 

Griggs, 

Hascall, 

Hinman, 

Kilburn, 

Lake, 

Lyon, 

McCann, 

Manderson, 



Moore, 

Myers, 

Neligh, 

Philpott, 

Reynolds, 

Sprague, 

Stevenson, 

Thummel, 

Towle, 

Wakeley, 

Weaver, 

Wilson. — 24. 



NAYS. 

Price, 

Robinson, 

Scofield, 

Shaff, 

Speice, 

Thomas, 

Tisdel, 

Vifquain.- 



-17. 



Abbott. 

Ballard, 

Campbeli, 

Cassell, 

Kenaston, 

Kirkpatrick, 

Majors, 

Mason. 

Maxwell, 

ABSENT 
Boyd, 
Eaton, 
Estabrook, 
Grenell, 
Ley,, 
Newsom, 

The PRESIDENT. The question 
is on the adoption of the resolution. 

The ayes and nays were demand- 
ed. 

The secretary called the roll and 
the president announced the result: 
Ayes, 19; nays, 23, as follows: 



AND NOT VOTING. 

Parchin, 

Parker, 

Stewart. 

Woolworth, 

Mr. President 11. 



Curtis, 

Granger, 

Gray, 

Griggs, 

Hascall, 

Hinman, 

Kilburn, 

Lake, 

IMcCann, 

Maudersons 



Abbott, 

Ballard, 

Campbell, 

Cassell, 

Gibbs, 

Kenaston, 

Kirkpatrick. 

r^yon. 

Majors, 

Mason, 

Maxwell. 



YEAS. 
Myers, 
Neligh, 
Philpott. 
Reynolds, 
Stevenson, 
Thummel, 
Towle. 
Wakeley, 
Wilson. — 19. 

NAYS. 

Myers, 

Price, 

Robinson, 

Scofield, 

Shaft, 

Sprague, 

Speice, 

Thomas, 

Tisdel, 

Vifquain. 

Weaver.— 



23. 



ABSENT AND NOT VOTING. 

Boyd. Grenell, 

Eaton Ley, 



300 



COMPULSORY EDUCATION 



Wednesday] 



MASON— VIFQUAIN 



[August 2 



Newsom, Stewart, 

Parchin. Woolworth, 

Parker, Mr. President. — 10. 

Mr. MASON. Mr. President. I 
now move to reconsider the vote 
by which the resolution was lost, and 
laj- that motion on the table, so that 
this question cannot be sprung when 
members are absent from the con- 
vention. 

Mr. WAKELEY. I am in favor 
of reconsidering the motion, but not 
laying it on the table. 

Adjournment. 

Mr. ABBOTT. Mr. President. I 
move we adjourn until nine o'clock 
tomorrow morning. 

The convention divided and the 
motion was not agreed to. 

Mr. GRAY. I move we adjourn un- 
til eight o'clock this evening. 

The convention divided and the 
motion was not agreed to. 

Mr. MYERS. Mr. President. I 
move the convention do now ad- 
journ. 

The convention divided and the 
motion was agreed to. 

So the convention at six o'clock 
and thirty minutes adjourned. 



THIRTY-THIRD DAY. 
Wednesday, August 2, 187 1. 
The convention met at ten o'clock 
and was called to order by the presi- 
dent. 

Prayer. 

Prayer was offered by the chap- 
lain as follows: 

"Father of all mercies, God of 
grace, we pray for Thy blessing up- 
on this state and upon this nation; 



that the exercise of Thy love and the 
power of Thy truth may appear; and 
we pray Thee that Thy blessing may 
rest upon this convention today in 
all its workings. May it please Thee 
to deliver us from the slavery of self- 
ishness. Amen. 

Reading of the Journal. 

The journal of the last day's pro- 
ceedings was read and approved. 
Reports from Standing Committees. 

Mr. VIFQUAIN. Mr. President, I 
wish to submit a report from the 
committee on education. 

Education. 

The secretary read the report, as 
follows: 

Mr. President. Your committee 
on education have the honor to re- 
port the following as a proposition to 
be submitted separately, in lieu of 
section four of the original article. 

To be Submitted Separately. 

"The Legislature shall require by 
law that every child of sufficient 
mental and physical ability, between 
the ages of eight and sixteen years, 
unless educated by other means, 
shall in all cases where practicable 
attend a public school supported by 
the common school fund., for some 
definite length of time each year, to 
be fixed by law, and may establish a 
school or schools for the safe keep- 
ing, education, employment and re- 
formation of all children under the 
age of sixteen who are destitute of 
proper parental care, or who are 
growing up in mendicancy, ignorance, 
idleness or vice, which schools shall 
constitute a part of the system of 
common schools." 

Mr. VIFQUAIN. Mr. President. I 
move the proposition be referred to 
the standing committee on schedule. 

Mr. MAXWELL. Mr. President. I 
think it is better to have it referred 
to the committee of the whole, to 



STATE MILITIA 



301 



Wednesday] 



VIFQUAIN— TOWLE 



[August 2 



see whether they will approve it or 
not. I make that motion. 

The PRESIDENT. The motion to 
refer to the standing committee 
takes precedence. 

The motion was not agreed to. 

The PRESIDENT. The question 
is on i-eferring- to the committee of 
the whole. 

The motion was agreed to. 
3Iilitary Affairs. 

Mr. VIFQUAIN. Mr. President. I 
wish to submit a report from the 
standing committee on military af- 
fairs. 

The PRESIDENT. If there is no 
objection to this report it will be 
read a first and second time by its 
title, ordered printed, and referred 
to the committee of the whole, — so 
ordered. 

The report is as follows: 

ARTICLE 



MILITIA. 

Section 1. The militia of the state 
of Nebraska shall consist of all able- 
bodied male persons resident in the 
state between the ages of 18 and 
45, except such persons as now are 
or hereafter may be exempted by the 
laws of the United States or of this 
state. 

Sec. 2. The legislature shall, at 
their first session after the adoption 
of this constitution, provide for the 
organization, equipment and discipline 
of the militia, and shall therein con- 
form as nearly as practicable to the 
regulations of the government of the 
armies of the United States. 

Sec. 3. Militia officers shall be 
chosen or appointed as follows: 
Captains, subalterns and non-com- 
missioned officers shall be chosen 
by the written votes of the 
members of their respective 



companies. Field officers of regi 
ments and separate battalions by 
the written votes of the commission- 
ed officers of their respective regi- 
ments and separate battalions 
Brigadier and major generals shall 
be elected by the written votes of the 
officers of their brigades and divis- 
ions respectively. The staff-officers 
will be selected by the general-in- 
chief, division, brigade, regimental, 
battalion and company commanders 
respectively for their different com- 
mands; provided, that in time of 
war such right of election shall be 
suspended and all commissioned of- 
ficers shall be appointed by the gov- 
ernor, and non-commissioned officers 
by the regimental commander, on 
the recommendation of their respec- 
tive company commanders. 

Sec. 4. All militia officers shall 
be commissioned by the governor 
and may hold their commissions for 
such a time as the legislature may 
provide. 

Sec. 5. The military records, 
banners and relics of the state shall 
be preserved as an enduring memori- 
al of the patriotism and valor of Ne- 
braska, and it shall be the duty of 
the legislature to provide by law for 
the safe keeping of the same. 

Sec. 6. The office of adjutant 
general of the state of Nebraska is 
hereby created and he shall be elect- 
ed in the same manner and at the 
same time that other state officers. 
His salary and his duties shall be 
prescribed by law at the first ses- 
sion of the legislature after the 
ratification of this constitution. 

Sec. 7. No person or persons 
conscientiously scrupulous of bear- 
ing arms shall be compelled to do mi- 
litia duty in time of peace, provid- 
ed such person or persons shall pay 
an equivalent for such exemption as 
may be determined by law. 

Legislative Apportionment. 

Mr. TOWLE. Mr. President. I 
wish to submit a report from the 
committee on legislative apportion- 
ment. 



302 



LEGISLATIVE APPORTIONMENT 



Wednesday] 



GRIGGS-HASCALI.-BALLARD 



[August 2 



The secretary read the report, as 
follows: 

"Mr. President: We the under- 
sipnod members of the legislative ap- 
portionment committee, to whom 
was referred section three of the 
legislative article, together with the 
proposed amendments,, hereby report 
the following as a substitute for 
such section and recommend its in- 
corporation in the legislative arti- 
cle. Signed, 

ED. S. TOWLE. 
J. H. KENASTON. 
R. F. STEVENSON. 
O. A. ABBOTT. 

"The legislature shall provide by 
law for an enumeration of the in- 
habitants of the state in the year 
18 72, and at the end of every two 
years thereafter until after the year 
1880, when it shall provide for 
an enumeration in the year 1885, 
and every ten years thereafter, and 
at their first annual session after 
such enumerations, and also after 
the enumerations made by the au- 
thority of the United States; but 
at no other time. The legislatureshall 
apportion the senators and represen- 
tatives according to the number of 
inhabitants, excluding Indians not 
taxed and soldiers and oflBcers of the 
United States army and navy; pro- 
vided, however, tliat the legisla- 
ture in making such apportionments 
may in the case of any county not 
forming an entire representative 
district, apportion a member of the 
legislature to such county, if its 
population exceeds three-fifths of the 
ratio for one member." 

Mr. GRIGGS. Mr. President. I 
move that the report be referred to 
the committee of the whole. 

Mr. HASCALL. Mr. President. I 
will have a minority report from this 
committee ready to submit when it 
comes up in the committee of the 
whole, and I ask leave of the con- 
vention to submit it at that time. 



(Leave.) 

The motion to refer the report to 
the committee of the whole was 
agreed to. 

Hours of Meeting. 

Mr. BALLARD. Mr. President. I 
have a resolution I wish to offer, and 
I move that it be adopted. 

The secretary read the resolution, 
as follows: 

Resolved, That hereafter the 
regular hours of meeting of this con- 
vention shall be 8:30 in the morning 
and 1:30 in the afternoon. 

Mr. ABBOTT. Mr. President. I 
think that two o'clock is as early as 
we can get together after dinner. I 
move to amend that part of the reso- 
lution to two o'clock. 

Mr. WEAVER. Mr. President. I 
move to amend to 8 o'clock in the 
morning and two o'clock in the af- 
ternoon. 

Mr. BALLARD. Mr. President. I 
accept that amendment. 

The PRESIDENT. The question 
is on the adoption of the resolution 
as amended, the ayes and nays are 
demanded — Mr. Secretary call the 
roll. 

The president announced the re- 
sult, — ayes, 33; nays, 10, as follows: 

AYES. 

Abbott, Lyon, 

Ballard, McCann, 

Campbell, Majors, 

Curtis, Masouu 

Gibbs, Maxwell, 

Granger, Moore, 

Gray, Myers, 

Griggs, Newsom, 

Hascall, Philpott, 

Hinman, Price, 

Kenaston, Reynolds, 

Kilburn, Robinson, 



LEGISLATIVE APPORTIONMENT— THOMAS DOANE 303 



Wednesday] 



HINMAN— HASCALL— SCHOFIELD 



[August 2 



Shaff, Tisdel, 

Sprague, Towle, 

Stevenson, Vifquain, 

Thummel, Weaver. — 33. 

Thomas, 

NAYS. 
Boyd, Neligh, 

Estabrook, Parchin, 

Kirkpatrick, Scofield, 

L.ake. Speice, 

Manderson, Wakeley. — 10 

ABSENT AND NOT VOTING. 
Cassell, Parker, 

Eaton, Stewart, 

Grenell, Wilson, 

Ley, Woolworth, 

Mr. President. — 9. 

So the resolution was adopted. 

Lejj;islative Apportionment — Minori- 
ty Report. 

Mr. HINMAN. Mr. President. I 
move we go into committee of the 
whole on the reports of the commit- 
tee on legislative apportionments. 

Mr. HASCALL. Mr. President. 
Before the motion is put I wish to 
present a minority report of that 
committee. 

The secretary read the report, as 
follows: 

"The legislature shall provide by 
law for an enumeration of the in- 
habitants of the state in the year 
one thousand eight hundred and 
seventy five, and at the end of every 
ten years thereafter: and at their 
first, annual session after such enu- 
meration, and also after each enu- 
meration made by the authority of 
the United States, but at no other 
time, the legislature shall apportion 
the members of the legislature ac- 
cording to the number of inhabi- 
tants, excluding Indians not taxed 
and soldiers and officers of the Unit- 
ed States army and navy. The leg- 
islature may provide by law that 
any organized county not constitut- 
ing an entire representative district 



and having a population to be ascer- 
tained by law of more than three- 
fifths of the ratio required for a 
representative and upon which the 
last apportionment of representa- 
tives was made, shall constitute a 
single representative district, and be 
entitled to one member in the house 
of representatives. A county thus 
made a representative district shall 
thereupon be detached from any 
other representative district includ- 
ing the same, but no county shall be 
g-iven representation as aforesaid, if 
the remaining- counties of the repre- 
sentative district frsm which it is 
proposed to detach the same shall 
not contain a population greater 
than three-fifths of the ratio afore 
said. 

Mr. HASCALL. Mr. President. I 
move that the report be referred to 
the committee of the whole. 

The motion was agreed to. 

Resolution. 

Mr. SCOFIELD. Mr President. 
Before the motion to go into 
committee of the whole is put, I 
wish to present a resolution, and 
move its adoption. 

The secretary read the resolution, 
as follows: 

Resolved, That the contention 
extend the privileges of the floor of 
this hall to Col. Thomas Doane. 

The motion was adopted. 

Committee of the Whole. 

The PRESIDENT. The question 
is on going into committee of the 
whole on the reports of the commit- 
tee on legislative apportionment. 

The motion was agreed to. 

So the convention went into the 
committee of the whole. Mr. Sco- 
field in the chair. 



liOi 



LEGISLATIVE APPORTIONMEMT 



Wednesday] 



GRAY-KIBKPATRICK-HASCALL 



[August 2 



The CHAIRMAN. Gentlemen, you 
have under consideration section 
three of the legislative article, to- 
gether with reports of the commit- 
tee on legislative apportionment on ' 
several amendments referred to 
them. 

Mr. GRAY. Mr. Chairman. I de- 
sire to inquire whether the minority 
report is not substantially the same 
as the majority report with the ex- 
ception of the times of making the 
apportionment and census. 

Mr. HASCALL. No sir. The ma- 
jority proposes taking a frequent 
census, and base the apportionment 
purely upon the population and ig- 
nore the new counties entirely. 

Mr. KIRKPATRICK. There is no 
difference between these two reports. 
The majority proposes an apportion- 
ment every two years of representa- 
tives of the people up to 1880. The 
minority report proposes to take the 
census every five years, but provides 
that the county claiming represen- 
tation may take the census under 
their own authority, and upon that 
it will be the duty of the legislature 
to give them a representative based 
upon the basis fixed in the law. 

Mr. BALLARD. I move the ma- 
jority report be adopted. 

Mr. HASCALL. I hope that will 
not be adopted hastily. I only want 
the convention to fairly consider 
both reports, and then if they come 
to the conclusion that a majority re- 
port is better for the interest of the 
state, then, of course, I shall cheer- 
fully acquiesce. The first objection 
to the majority report is the ex- 
pense of taking the census. We have 



only to refer to the cost of taking 
the United States census to see how 
much it will cost for us to take our 
census. It will not take as much as it 
will to defray the expense of one 
session of the legislature. A federal 
census has just been taken, and it 
proposes to keep up that mode of 
taking the census until 1880; then 
it proposes to apportion the state up- 
on the population as shown by those 
state censuses. There is expense as 
one objection. Another objection is 
keeping this question of apportion- 
ment always in the legislature. We 
know it is always an exciting ques- 
tion, and always consumes much 
time. Another objection, and that 
is the one which I claim the section 
reported by the minority will obvi- 
ate. That is when you go to take the 
census as proposed by the majority 
report, it does not give the relief to 
the new county which they claim. It 
puts them right down on population 
and does not consider the importance 
of the minority. For instance if it 
is based upon the proposition purely, 
there may' be a county which con- 
tains 800 or 900 people, and the ra- 
tio may be 1,600 or 1,700, and it 
will probably require it to be attach- 
ed to several other counties. This 
minority report proposes that in the 
apportionment we will make, and 
that applies to the majority report, 
that we will give counties that have 
six, seven or eight hundred popula- 
tion, a representative anyway; and 
afterwards the minority report prO' 
poses that whenever they get a popu- 
lation to be ascertained by law to be 
greater than the three-fifths ratio 
required at the last apportionment 



LEGISLATIVE AFFORTIONMENT 



305 



Wednesday] 



TOWLE 



[August 2 



for representatives, that then they 
shair have a representative in the 
legislature. I am satisfied if this 
majority report is adopted it will 
give no satisfaction whatever and 
will work diffei;ently to what the 
projectors anticipate. It is a new 
project and has been written up 
hastily. They may have taken a no- 
tion to this majority section, and 
will find that that section does not 
give the relief they anticipate, and 
that properly attaches. It will be a 
failure and will not give the satis- 
faction they expect. 

Mr. TOWLE. Mr. Chairman. The 
main, central idea kept in view in 
the majority report was to give as 
near as possible an equal distribu- 
tion of representation all over the 
state according to population. We 
believe this report is based upon just 
principles, and we believe and ex- 
pect "the convention will adopt that 
instead of the minority report. The 
objection to the majority report is 
the expense attending the taking of 
the census. Now, the constitution 
of Iowa within the past twenty years 
has been almost co-incident with our 
own; she has been a western state 
and is rapidly settling, a portion of 
it heavily populated; and the same 
question we are urging today, and 
the same difficulties we are exper- 
iencing now, Iowa has experienced 
for twenty years, with all its tur- 
moils and troubles. They have 
finally adopted the principle as the 
only true and perfect method, as 
far as their experience and ability 
dictated, was to take frequent cen- 
sus. It may be possible that it is 
expensive, but at the same time it is 
20 



certainly proper that these western 
counties should have a proper rep- 
resentation, and it is more than paid 
up in the justice we are meting out 
to our friends in the west. 

Now this does not provide that 
the census shall be taken in this way 
for a greater length of time than 
eight years, or at the rate of once in 
every two years, after that we fall 
back upon the five years' principle — 
that is the United States census 
every ten years, and the state cen- 
sus coming in between these each ten 
j^ears. At the end of the eight years it 
is likely that these counties west of 
us will be pretty well settled up, or 
at least will not, after that time, in- 
crease in population so fast as they 
have for the last few years. It is 
asked how will you take this cen- 
sus without a great deal of cost? I 
would have the assessors of tlie pre- 
cincts take it. They are acquainted 
with the people of their precincts, 
and the work can be done by them 
at little expense, and but little al- 
teration is required in their assess- 
ment blanks to do this. The expense 
will be nothing compared to the 
benefits we expect to flow from this 
new enumeration. Let us see how 
the work would be done. The coun- 
ty commissioners would ask for an- 
other representative, and when it is 
found their population is sufficiently 
large, it will be granted. The as- 
sessors can be authorized to take the 
census of their respective precincts, 
as they are attending to the assess- 
ment of the property. The machin- 
ery proposed by the amendment, Mr. 
Chairman, is too cumbersome. It is 
such that it cannot be adapted to 



306 



LEGISLATIVE APPORTIONMENT 



Wednesdny) 



MYERS-KIRKPATRICK 



[August 2 



the people. The people of this 
state want something less compli- 
cated and heavy. We should have a 
general apportionment, and should 
divide up the whole state and give 
to each portion of the state a rep- 
resentation according to the ratio 
of population. I believe that the re- 
port of the majority committee is 
proper and adapted to the wants of 
the people of the state in a fair and 
adequate manner. 

Mr. MYERS. Mr. Chairman. 
These propositions are now before 
this committee, and I think the re- 
sult wil be that we will fall back up- 
on the section which is proposed by 
the committee, and as it is in the 
old constitution of our state, which 
provides for the taking of the census 
every ten years. This is the pro- 
vision in the constitution of almost 
every state in the union. Now, sir, 
T am opposed to these frequent 
enumerations for the whole state, or 
parts of the state. Counties that are 
not entitled to representation alone, 
can form portions of districts where 
they can live in peace and harmony. 
Why be in such a hurry to be repre- 
sented here, when they can be ac- 
comodated in all their just rights 
and claims; when they can be attach- 
ed to other counties and get all their 
just dues? I hope this committee 
will fall back upon the original sec- 
tion, as I object to it on the score 
of expense, and I object to it upon 
the score of partiality. The popu- 
lation might increase in the old coun- 
ties as well as in the new, and I 
would have all treated alike. 

Mr. KIRKPATRICK Mr. Chair- 



man. Some men believe that the 
apportionment of the state should 
bear some proportion to the amount 
of property in the state — that taxa- 
tion and representation should have 
some relation to each other. I think 
there should be a new apportionment 
made in order to do anything like 
justice to the new counties. I ap- 
prove the majority report. I think 
if the census could be taken without 
great expense it should be taken be- 
fore every session of the legislature. I 
know, sir, that it will cost something, 
but the old saying is true that "eter- 
nal vigilance is the price of liber- 
ty." I am assured that the extra 
expense of taking the census will 
not be more than five dollars to each 
precinct. 

I object to the minority report, 
although I believe in giving to these 
new counties of our state their full 
representation, and even more, be- 
cause they are constantly increasing 
in population. But, sir, there are 
two objections to it. First because it 
will cost more to take the census of 
these counties than to take the cen- 
sus of the state, but it is proposed to 
have the section to be benefited to 
bear the expense. But, sir, I am wil- 
ling to have our representation in- 
creased upon an impartial assess- 
ment. 

Mr. MYERS. In the opinion of 
the gentleman was the assessment 
taken in 1870 by the United States 
marshal an impartial one? 

Mr. KIRKPATRICK. I think it 
was, sir. I have no charges to bring 
against ^iiy census taker, but I be- 
lieve the:-T v/as a little attempt made 



LEGISLATIVE APPORTIONMENT 



307 



Wednesday] 



WE A VER— HINM AN 



[August 2 



to correct that taking, and we found 
a little inaccuracy in it. But sir, 
not so much as was found in some 
other states; and it showed that 
there was no intention to misrepre- 
sent the state; but the objection I 
was going to allude to, Mr. Chair- 
man, was this — I am willing to give 
to the counties having three-fifths a 
full representation. I think there 
is no doubt but that they are clearly 
entitled to that and base their claim 
on rapid increase of their population. 
Now, sir, between the two I certainly 
prefer the majority report. 

Mr. WEAVER. Mr. Chairman. I 
have an amendment to offer to the 
majority report. To strike out all 
after the word "apportionment" in 
the provision and insert the follow- 
ing: "Shall apportion to counties 
containing three-fifths of the ratio, 
one representative and all counties 
having a surplus of three-fifths of 
the ratio shall be entitled to one ad- 
ditional representative." 

Mr. HINMAN. Mr. Chairman. I 
came from that good old state of 
Pennsylvania, as well as some other 
gentlemen on this floor, and I, too, 
admire her sturdy opposition to 
change or anything new; and her 
persistent vote for Genl. Jackson. I 
used to vote for Jackson until I mov- 
ed out here to Nebraska, when I 
learned he was dead. (Laughter.) 

Mr. MYERS. Genl. Jackson is 
dead but his principles live forever. 

Mr. HINMAN. Well, Mr. Chair- 
man. I wish to say that I appreci- 
ate the pleasant feeling of the 
members of this convention from the 
east toward the west. I don't think 



I have that amount of bile in me 
that has been attributed to me. We 
come here as suppliants, and simply 
beg of you to give us some plan by 
which we can be represented in this 
legislature, so that when a proposi- 
tion is sprung upon the people, there 
may be some person here to watch 
the interests of these new counties 
and say whether it is proper or not. 
I never have been a member of a 
legislature, but I have seen one or 
two and know how some things are 
done there. Now, how are laws 
passed in the legislature? A propo- 
sition is sprung from a particular 
district in its own interest and the 
question is asked by others, "will 
that hurt anybody. Is it a proper 
proposition?" And, sir, if it does not 
appear that it is wrong, these repre- 
sentatives vote according to the rep- 
resentations made to them; for this 
reason, these western districts should 
have a representation here, to say 
whether a measure is proper or not. 
Now, Mr. Chairman, in the last leg- 
islature of all that northwestern 
country and nearly the entire land 
from Grand Island west was rep- 
resented in the lower house by a 
gentleman from Saline, Mr. Goodin, 
To get around to him you have to 
travel about 500 miles to this capi- 
tal; and then out here to Saline 
county. To send a communication to 
this hall from the extent of the dis- 
trict to reach him it would have to 
come a distance of 500 miles. We 
will suppose a proposition is sprung 
connected with that extreme por- 
tion of his district. We will say it is 
sprung on a day, and they make a 
motion to suspend the rule, and it 



308 



LEGISLATIVE APPORTIONMENT 



Wednesday] 



HINM A N— M A JORS 



[August 2 



is passed. How can the people know, 
or get word to their representative 
as to whether that proposition is 
riRht or not? In the latter end of 
the legislature, propositions are fre- 
quently offered and rushed through 
in a day. Suppose we take the ef- 
fect of this, we were represented in 
the senate of the last legislature by 
Mr. Gerrard of Platte county, 400 
miles from some of his constituents. 

Mr. MAJORS. I rise to a point of 
order. It is this; we are not now 
discussing the apportionment that 
was heretofore in existence. I can- 
not see what that has to do with the 
adoption of this resolution. 

Mr. HINMAN. Have I not the 
right to illustrate a principle that 
has been applied in the past? 

The CHAIRMAN. The gentleman 
will be allowed to proceed. 

Mr. HINMAN. I do not want to 
talk about that $32,000 steal, I know 
it hurt somebody. I am going to 
pass that and try to provide for the 
future. I wish to provide a check 
for any future steals which may 
arise. The stable doors were open 
and the $32,000 is gone. It is the 
thousands and millions in the future 
I wish to reach and provide for. 
Between Lincoln and Hall counties 
there is 100 miles of the Union 
Pacific railroad, on which not a dol- 
lar of tax has ever been paid. There 
is Dawson and Buffalo counties be- 
tween which has received no tax. 
Suppose those two counties were 
represented in this hall, they could 
say to that legislature, "You must 
provide a rule by which we can get 
that tax." There is $1,000,000 of 



property untaxed in that country. Do 
you care for reaching it and getting 
these sinews of war to carry on the 
legislature? There is about 120 
miles of country west of us that will 
not pay another dollar of tax. Well, 
now, Mr. Chairman is it material 
whether we provide for that? Is it 
material or not whether we throw in 
checks around the legislature? Is 
it material whether we have this 
great prosperity represented here, so 
as to provide certain means by which 
the state shall get these taxes? 
They are counting a cost of $100 in 
taking this census, while at one 
sweep was lost $32,000. Year after 
year, at one per cent, the state is los- 
ing $16,000 between Lincoln and 
Hall counties, because they are not 
represented at your legislative halls. 
I grant you, gentlemen, have the 
power. We come here as suppliants, 
begging you to help sustain us, and 
hold up our hands instead of doing 
like the man who saw a little boy 
recover an apple from a large boy; 
another large boy come along, 
pitched into him and got away that 
apple from the small boy, and they 
divided and ate it. That is what you 
do here, when a little boy tries ta 
get his rights, another big boy turns 
around and helps the big boy. That 
is the result of this system. Shall 
we have that old trammelled sys- 
tem? An apportionment is taken in 
1875, and this increase of population 
which the chief justice has said will 
double in two years, and which 
passes into the new country, it pass- 
es by your doors and goes into the 
new counties, and builds them up 
and enriches your state, will you ex- 



LEGISLATIVE APPORTIONMENT 



309 



Wednesday] 



HINMAN— PRICE 



[August 2 



tend to them these rights and privi- 
leges of representation. Other rail- 
roads besides the Union Pacific are 
running through our state. Others 
have been projected, and will be pro- 
jected in a very few years, not only 
from the south up the Republican, 
but upon the Blue, up the Loup 
Fork, and up the north fork of the 
Platte river. Those mighty powers 
have got to be looked after. They 
ought to bear the burdens of this 
state. How will you reach them? 
That is the question. There is not a 
gentleman here who will say we will 
not tax this property; we want to 
reach out and get it. You are will- 
ing for us to furnish the grease to 
grease the wheels of a grand coach 
but not for us to ride in it. You 
had better be careful you do not 
destroy that support you expect 
from us. 

Mr. PRICE. I hope the report of 
the majority of the committee will 
prevail. I am in favor of a frequent 
enumeration of the population, and 
believe it can be done with very 
trifling expense to the counties in 
which it is had. I think that the 
idea of a special enumeration of any 
particular county is likely to cost 
a considerable item of money; more 
than it would to have an enumera- 
tion made by the assessors at the 
time of assessing property. By this 
process of taking the enumeration 
and making an apportionment every 
two years, I believe the wants of the 
western pflrtion of our state will 
be abundantly satisfied. There is a 
probability of some three or four 
railroads being built towards the 
western part of the state, one up 



the valley of the Republican, anoth- 
er up the Little Blue, another on 
the Big Sandy and one west from 
this city, passing through the por- 
tion of country I am best acquainted 
with. South of the Platte, west of 
this, there is a probability of several 
railroads centering near Fort Kear- 
ney, and some of the counties out 
there may have a population de- 
manding two or three representa- 
tives within one, year from today. As 
an instance of the rapidity with 
which railroads are progressing 
westward and counties are settling 
up, I wish to call j'our attention, that 
since the enumeration was last had, 
we have four counties organized. 
Webster county was organized as 
late as April 19th. Another county 
which, at the time this apportion- 
ment was made showed a population 
of eight citizens, is now the organ- 
ized county of Nuckolls. Franklin 
county, has also made an appropria- 
tion for a separate county, the coun- 
ty of Thayer, the county I reside in, 
has also been organized since; I 
propose to have something tangible 
to prove to this convention that it 
has a population of at least 1,000. 
In these, Mr. Chairman, you have an 
illustration of the rapidity with 
which these counties south of the 
Platte, west of Lincoln are settling 
up. I think the report of the ma- 
jority of the committee is preferable 
to anything we have had. 

Mr. STEVENSON. I represent a 
portion of this country that extends 
from the Missouri river to the base 
of the Rocky mountains, including 
within the district a great many 
counties, with a population ranging 



•MO 



LEGISLATIVE ArFORTIONMENT 



Wednesday] 



STEVENSON 



[Aujrust a 



from one thousand up to three; and 
there is not a county in that whole 
district that has in tinae past been 
hardly represented in the legislature 
of this state; and I think it is high 
time that something was done in this 
convention in order to give these 
counties representation. All I ask 
is that they be fairly represented. 
Not that every organized county 
with but fifty or seventy-five inhabi- 
tants, have a representative, but that 
a liberal representation will be al- 
lowed that a ratio may be establish- 
ed so that these counties having a 
certain number of inhabitants shall 
be represented. Now, I take it that 
the majority report of this commit- 
tee is very liberal; that it allows 
the legislature to make an appor- 
tionment every two years; allows a 
census to be taken, and from that 
census it allows an apportionment 
to be made, and that a county having 
three-fifths of the ratio be entitled to 
one representative. I hold that it is 
nothing more than right or just, and 
that it ought to apply not only to 
these new counties, but that it ought 
also to apply to every county 
throughout the state. I do not be- 
lieve in putting a section in this or- 
ganic law and make it apply to speci- 
ally benefit counties to the exclusion 
of any other county. If any of these 
new counties have a sufficient num- 
ber according to the ratio, to be 
represented, I want to see them 
have representatives, but I also want 
to see if it goes into the counties of 
Douglas, Burty Otoe, Gumming, or 
any other county, whether it be in 
the north, the south, the east or 
the west — I want to see that number 



of individuals have a representative 
in this hall. And I think we ought, 
in justice to ourselves, and to those 
who are to come into this state in 
after years, to give them all the 
benefit of a good and liberal repre- 
sentation. It is a notorious fact that 
there are appeals coming from all 
over this state asking for repre- 
sentation in the legislative hall, and 
should we pass these numerous cries 
for help from Macedonia — pass them 
by idly? No, sir, we ought to take 
into consideration the demands of 
this people, and if it is possible, give 
them representation. By this ma- 
jority report we intend to give them 
representation. I take it that the re- 
port of that committee is just and 
right. That we should, every two 
years for the next eight years, 
have a census taken for this state. It 
cannot and will not cost very much. 
We ought not to take into considera- 
tion the cost. Of course it is due to 
the people, notwithstanding the ex- 
pense, that they be represented in 
these halls, and we should not look 
materially to the expense of it, al- 
though I hold it is not going to take 
much, from the fact that the cen- 
sus can be taken by the assessors 
throughout the precincts of every 
county. It is not like taking the 
United States census. It is not nec- 
essary to take the age, and occupa- 
tion, but simply the names. Get thfe 
number, and from that number let 
us form our basis of representation. 
What does the minority* report try 
to do here? It tries to put into our 
organic law a special clause apply- 
ing to new counties and none oth- 
ers whatever. Now, sir, I hold, as a 



LEGISLATIVE APPORTIONMENT 



311 



Wednesday] 



STEVENSON— SPRAG QE 



[August 2 



member of the convention, that we 
are here to oppose that. We are 
making laws to apply to the state of 
Nebraska, and not to any particular 
county. But I am in favor of giving 
these new counties all they can ask 
and that is that they have three- 
fifths of the ratio. Then they are 
entitled to a representative, but if 
any other county having one, has the 
same ratio, they ought also to be 
entitled to another. And if it is 
necessary, we must attach two or 
three counties in one district. But 
that district wil not last but a short 
time. The report of the majority of 
this committee says the apportion- 
ment shall be made every two years. 
Well now, it is not long for one of 
these districts to wait. We have had 
to wait for five, six, seven and ten 
years, and then not be represented 
in the representative hall. We only 
propose to make these counties wait 
for two years and if they have three- 
fifths of the ratio they can have a 
representative here. Is there any- 
thing unjust about that? I am pret- 
ty sure that if we adopt the report of 
the majority of this committee, those 
counties, especially in my district, 
will be satisfied with it, because they 
can ask in justice and in equity; and 
I hope, Mr. Chairman, that the re- 
port of this committee will be 
adopted. 

Mr. SPRAGUE. I do not propose 
to occupy but a moment or two. I 
had made up my mind, Mr. Chair- 
man, that I would vote for the mi- 
nority report of this committee, and 
for this reason — that I believe it 
to be more liberal to the new coun- : 
ties than the majority report, and I \ 



came to the conclusion that the older 
counties could well afford to be liber- 
al in favor of the new counties, and 
for that reason I had concluded to 
support it. But I find in the argu- 
ments which have been delivered 
here, especially from those who live 
in new counties, or the immediate 
vicinity, that they seem to favor the 
majority report, and certainly it 
strikes me if that is what suits them 
the older counties should be satis- 
fied. Taking the argument of the 
gentleman from Cuming (Mr. Stev- 
enson) as a basis, it is simply an 
apportionment in accordance with 
the number of the inhabitants. He 
says the same rule should apply to 
the new as to the old counties. Now 
that does not give the new ones any 
advantage whatever over the older 
one. If his views are right we 
might as well adopt the report of the 
committee on legislative. You 
adopt the same rule in regard to the 
old as the new. I believe that this 
report of the majority has been more 
liberal than the argument of the gen- 
tleman from Cuming. I shall be in 
favor of the majority report. 

The CHAIRMAN. I would state 
that there is a motion to strike out 
this portion of the majority report, 
and insert that the last part will 
read, "the legislature in making 
such apportionments, shall appor- 
tion the counties so that counties 
having three-fifths of the ratio shall 
have one representative, and all 
counties having an excess of three- 
fifths of the ratio, shall have an ad- 
ditional representative." 

Mr. SPRAGUE. So far as I am 
concerned, I shall oppose the amena- 



:U2 



LEGISLATIVE APPORTIONMENT 



Wednesday] 



SPRAGUE-WEAVER-WAKKLEY 



[August 2 



ment upon the ground that it is not 
as liberal to the new counties as it 
should be. 

Mr. STEVENSON. Is it your ob- 
ject to give the new counties an ad- 
vantage over the old, or to get the 
new counties represented? 

Mr. SPRAGUE. My object is to 
give them representation, so that 
they shall have that advantage. Now, 
sir, as I was about to say before, I 
had made up my mind to support the 
minority report because it was more 
favorable to the new counties than 
the majority. It gives the same ap- 
portionment to the older counties for 
the term of five years and the in- 
crease to the new counties. But 
as the members from the new coun.- 
ties seem to be in favor of the ma- 
jority report I shall support it. 

Mr. WEAVER. I believe the mot- 
to of our state is "Equality Before 
the Law." I am not here to show 
liberality to individuals or anything 
else, but to do exact justice. If 
thrue-tifths o+' the ratio entitle a 
new county to a representative why 
should not that same surplus entitle 
an old county to a representative? 
If it takes 1.000 to secure a repre- 
sentative in an old county, and in an 
old county there be 1,G00 and in 
the new county there be 600, the new 
county goes in for a representative. 
Now here is a county with 1,600, 
has only one representative. In 
there justice and equity in this? 
I think not. Almost three times as 
much represented by one represen- 
tative. Now suppose there be twenty 
new counties with a population of 
COO each. Those populations go in 



with a representation of twenty in 
number, while the old counties with 
1,600 each would go in with a simi- 
lar representation, and when I see 
that members who live in the west- 
ern portion of the state are not in 
favor of the amendment I have offer- 
ed, from the very fact of their op- 
position I shall press my amend- 
ment to a vote. 

Mr. WAKELEY. Mr. Chairman. I 
presume it is nearly impossible to 
come to a vote upon this measure, 
and I will say but a few words. 
While it is true that population 
should form a basis of representation 
it is also true that it is impossible to 
apportion upon that basis. Some coun- 
ties will have more than they are en- 
titled to and others will have less. 
I have happened to have, in my life, 
several years experience as a member 
of a legislative body, and I have had 
occasion to Ivnow, Mr. Chairman, the 
great importance to new and thinly 
settled counties of having representa- 
tives upon the floor. They have lo- 
cal interests to represent, and as 
a general thing they have more of 
these local interests to take care of 
in legislative bodies than older coun- 
ties whose internal affairs are set- 
tled. Now, sir, I believe it is our duty 
to adopt some system which, so far 
as is possible, will allow these 
counties representation. I prefer the 
report of the minority committee 
simply for one reason, and that is 
that it does not seem to me to be 
wise to change our apportionment 
every two years, and raise a commo- 
tion in the legislature with regard to 
the general apportionment of the 
state. I see no serious objection to 



LEGISLATIVE APPORTIONMENT 



313 



Wednesday] 



GRIGG S -MA SON— MOORE 



[August 2 



taking the census of the state next 
year, but it seems to me that after 
we provide for taking the census next 
year and making a new apportion- 
ment after the census in 1873, 1876 
and again in ISSl, after the census 
is taken by the United States, no 
serious injury will be done to any 
portion of the state. I am dispos- 
ed to be liberal to these new counties 
and think this convention has been 
so far, and as I represent, in part, 
one of the most populous counties 
in the state, I think we, in the older 
counties can afford to do this. One 
representative more or less is a mat- 
ter of but little importance to us; 
our interests are well cared for by 
the members we send here. 

Mr. GRIGGS. Mr. Chairman. I 
move that the committee do now rise 
report progress, and ask leave to sit 
again. 

Mr. STEVENSON. I hopd", Mr. 
President, this matter will be settled 
now. 

The PRESIDENT. I hear no sec- 
ond to the motion. The question 
is upon the adoption of the amend- 
ment offered by the gentleman from 
Richardson. 

Mr. MASON. Mr. Chairman. I 
think the rule adopted by the majori- 
ty committee is just. The state is 
increasing in population very rapidly. 
I know of a single county where with- 
in a year the population has increas- 
ed sixteen hundred. There are other 
reasons why I think the majority re- 
port is just. It is a well known 
principle that consolidated interests 
— whether of pe9ple or of capital are 
abundantly able to take care of 



itself. I hope Mr. President, that 
the majority report will prevail. 

Mr. MOORE. Mr. President. T 
will not detain you but a moment or 
two. I don't believe in long speecnes 
even if I was able to make them; 
}:ut as I sit here strange things come 
into my brain. Some days since my 
friend from Otoe, (Judge Mason > 
sympathising with my lowly condi- 
tion, (being forced as I was to re- 
main at the capital after adjouin- 
nient, while the greater number of 
the members had gone to meet iha 
happy hearts and bright eyes of :ov- 
ed ones at home) extended to me a 
kindly invitation to go with hinj and 
take a look at "the beauty and the 
chivalry," as well as the works of 
nature, and of art of the goodly 
Otoes. I went. "Swift as the winged 
winds," the hours passed by, as 
we were driven furiously along the 
highways and byways, from hill top 
to valley, from orchards bowed be- 
neath their weight of golden fruits, 
to the broad fields of tasselling corn 
"waving and laughing in the sun- 
light of heaven." Soon, but not too 
soon came the Sabbath of rest. "So 
calm, clear and beautiful that naught 
but God was to be seen in heaven." 

My good friend the Chief Justice 
(and I am proud to number him in 
my list of friends) took down his 
Bible (Byron) conducted me to a 
beautiful grove — one of "God's first 
temples ere man had learned to hew 
the shaft or lay the architrave," 
and sitting down upon the soft vel- 
vet lap of mother earth, and read, a 
portion of which came flitting strang- 
ly through my brain as the gentle- 



.•514 



LEGISLATIVE APPORTIONMENT 



Wednesday] 



MOORE 



[August 2 



man from Pennsylvania (Mr. My- 
ers) was repeating his stereotyped 
speech. "An old man with an old 
soul, and both extremely blind." I 
do not know why these words should 
recur at such a time. But it is true 
that whenever the gentleman from 
that state begins to speak, I immedi- 
ately go into the spirit and float 
away down, down "The back ave- 
nue of time," beyond the out hous- 
es of the present into the valley and 
shadows of the past and her monu- 
mental pile and storied urns re- 
peat the tales of long ago. When that 
good friend of Charles II theed and 
thoued his way from the old to the 
new world; when Franklin lived and 
spun his homely yarns in country bar- 
rooms before the blazing log fire. The 
time when 

"Lo the poor Indian, whose untutor- 
ed mind 
Sees God in the clouds, and heard 

him in the winds. 
Sat in his rude wigwam smoking the 
pipe of peace, or, musing fell 
asleep by the murmuring stream." 
(Laughter.) , 

It is strange these thoughts 
should pass through my mind at 
this time. The state of Penn- 
sylvania is a great state; it has 
been a great state for a long time, 
and it will be a great state for a 
long time to come no doubt, (Laugh- 
ter. > The children of that great state 
are taught to respect old institu- 
tions. They never adopt any new 
ideas; they never change, but fol- 
low along in the old grooves. If 
they had hanged Quakers in Pennsyl- 
vania years ago, they would hang 
tliem yet (Laughter.) The old doc- 



trine of "no expense, no money, 
no pay" seems to run in the heads 
of some of these children yet. When 
we talk about the little expense of 
taking the census of this state every 
two years the gentleman who never 
speaks without referring to the great 
state of Pennsylvania, immediately 
objects to the proposition. Now, I 
am told that the census of this state 
can be taken by the assessors at 
an expense of not over $500. Now, 
gentlemen, if such a small expense 
will put a quietus upon this thing, I 
say let us have it taken. We know 
that great complaints have been 
made that the western counties are 
not represented here as they should 
be; however, they are represented 
by a good looking young man who 
is able to speak for himself. He has 
said he represents about half the 
state. I thought I represented about 
half myself (Laughter). Now we 
have a good many people out west 
who don't seem to appreciate our 
last legislature. We had some very 
good men in that body — some of 
them are members of this convention, 
and I think they are very good men; 
but the people of those western coun- 
ties were not represented properly, 
and they think if they had been here 
things would have been different. 
Now, I am in favor of allowing them 
to send their wise men here, if they 
have them. If they send fools, they 
will do you no harm (Laughter) and 
if they send intelligent men they 
will do you good. We are all Ne- 
braskans. We came here for the 
purpose of building up a state — but 
first for the purpose of building up 
ourselves. By the way, if we do this. 



CLERICAL HELP 



315 



Wednesday' 



M ASON— S COFIELD-M ANDERSON 



[August t 



we will build up the state, and if we 
allow these western counties the rep- 
resentation they ask, we all share in 
the benefit of it, and I am in favor of 
the proposition. 

Mr. MASON. Mr. Chairman. I am 
more firmly convinced nov/ than ever 
that this proposition should pass, for 
the especial benefit of my friend 
from York (Mr. Moore) who mis- 
takes Byron for the Bible (Laugh- 
ter). 

Mr. KIRKPATRICK. I think the 
Chief Justice is wrong. 

Mr. MYERS. Mr. Chairman. I 
remember that occasion to which the 
gentleman from York (Mr. Moore) 
has referred so eloquently. We had 
the Book and Byron both along, but 
the gentleman didn't know the dif- 
ference. 

The CHAIRMAN. The question 
is on the amendment proposed by the 
gentleman from Richardson fMr. 
Weaver.) 

Mr. TOWLE. Mr. Chairman. I 
will accept that amendment. 

The CHAIRMAN. The question is 
on the adoption of the majority re- 
port, as amended. 

The majority report was adopted. 

Mr. GRIGGS. Mr. Chairman. I 
move the committee rise, report pro- 
gress and ask leave to sit again. 

The motion was agreed to. 
Ill Convention, 

Mr. SCOFIELD. Mr. President. 
The committee of the whole have had 
under consideration the report of the 
legislative committee and have in- 
structed me to report progress and 
ask leave to sit again. 



Adjournment. 

Mr. PRICE. Mr. President. I 
move we adjourn. 

Clerical Assistance. 

Mr. MANDERSON. Mr. President. 
I have a litle bill here from Jas. O. 
West, the deputy auditor. It is 
known that the deputy auditor is not 
permitted to hire assistance, but in 
getting up the reports and abstracts 
ordered by this convention he has 
paid out of his own pocket and can- 
not get any pay for it unless allow- 
ed by this convention out of the 
funds appropriated to it. I therefore 
move the account be allowed. 

The secretary read the account, as 
follows: 

"Constitutional convention: — 

To Jas. O. West, Dr., — For servic- 
es of extra clerk in preparing ab- 
stracts and reports for the conven- 
tion $50.00. 

I certify the above bill to be cor- 
rect. 

JAS. O. WEST, 

Dept. Audt. 

The bill was allowed. 

Adjoiirniiient AfjaJ". 

The PRESIDENT. The question 
is on the motion to adjourn to 2 
o'clock. 

The motion was agreed to. 

So the convention (at twelve 
o'clock and twenty minutes) ad- 
journed. 



Afternoon Session. 

The convention met at two o'clock 
and was called to order by the presi- 
dent. 

Coiiiniittee of the Whole. 

Mr. TOWLE. Mr. President I 
move we go into committee of the 



31() 



ArrORTlOJSMENT OF SENATOKS 



Wednesday] 



GRAY— HASCALL-TOWLE 



[August 2 



whole for the purpose of considering 
the legislative article. 

The motion was agreed to. 

So the convention went into com- 
mittee of the whole, Mr. Scofield in 
the chair. 

Mr. GRAY. Mr. Chairman. I have 
a section which I wish to offer, to 
be numbered section four. 

The secretarj' read the section, as 
follows: 

"Every county having three-fifths 
of the number of inhabitants allowed 
for a senator, shall be entitled to 
one senator. Counties having one or 
more senators shall be allowed one 
senator for an excess of three-fifths 
of the number of inhabitants allowed 
for a senator. A county having the. 
number of inhabitants allowed for a 
senator or three-fifths of that num- 
ber shall be a senatorial district. 
Two or more counties not having 
three-fifths of such number shall be 
included in senatorial districts and 
be al!ov;ed one senator for each of 
such districts, such districts to be 
composed of contiguous counties and 
as near as practicable of an equal 
number of inhabitants." 

Mr. GRAY. Mr. President. I 
move its adoption, and will explain 
briefly the course of the proposed 
section, so that every member will 
understand it. The rule proposed by 
this section is just the same as has 
already been provided for with refe- 
rence to representatives. It seeks to 
accomplish the same end with refer- 
ence to the senatorial apportionment, 
as has already been adopted with 
reference to representative appor- 
tionment. For instance, suppose the 
number of inhabitants for each 
senator in the state was 5,000, now 
supposing there is a county in the 
state with 3,000 inhabitants, that 



county would get one senator just the 
same as a county having 5,000. As 
to these counties having a large num- 
j ber, take a county in the state that 
has 8,000, that county will have two 
senators because it will get one for 
the 5,000 and one for the excess of 
three-fifths. In other words, to 
give every county a senator for 5,000 
if that shall be the number fixed 
upon, and give every county one for 
the excess of three-fifths. 

Mr. HASCAL.L. I am in favor of 
single senatorial districts; is this an- 
tagonistic to that proposition? 

Mr. GRAY. I would say that this 
does not contemplate any division of 
counties, but provides that every 
county having one or more senators 
shall be a senatorial district. If you 
adopt that section as it is drawn, 
there is no power to create two dis- 
tricts out of one county. As to those 
counties that do not have three-fifths 
of the number of inhabitants, they 
are to be grouped together two or 
more into one district and are to be 
of contiguous territory, and as near 
as practicable of an equal number of 
inhabitants. The proposed section 
does not contemplate that any dis- 
trict shall be composed of several 
counties in a float. 

Mr. TOWLE. Mr. President. It 
appears to me we have stretched this 
principle of representation of coun- 
ties to its extreme length, and that 
it was for only the express purpose 
of getting these counties having a 
certain population, representation 
that we adopted this three-fifths 
rule. In other words we give them 
representation in the house of repre- 



APPORTIONMENT OF SENATORS 



317 



Wednesday^ 



TOWLE-GRAY 



[Augusta. 



sentatives, not in both houses. As 
far as respects the senate, I believe 
the whole number of people should 
be divided by the number of senators 
and that that quotient should send a 
senator to the upper house irrespec- 
tive of county or county lines. If it 
is necessary to take a dozen counties 
to make a district, I am in favor 
of it, or in favor of taking half or a 
whole county. If we adopt the prin- 
ciple which the gentleman advocates 
I am afraid, Mr. Chairman, we will 
run out of senators, in other words 
run short of the number in attempt- 
ing to apply the principle. For in- 
stance, we will say there are twenty- 
five senators to elect and we have 
fifteen counties entitled to send one 
senator, we have districts outside 
that have three-fifths of the num- 
ber which entitles them to one mem- 
ber, under the rule you are held in 
an iron band and there is no getting 
out of it. In other words you find 
out you have only got twenty-five 
senators, while under the opera- 
tions and arguments of this rule you 
will have forty. I can see where 
there is a dislocation, and it should 
not be adopted. 

Mr. GRAY. Mr. President. It 
seems to me the chief objection urg- 
ed by the gentleman, is the difficulty 
in making an apportionment in that 
way. It seems to me any man that 
has learned mental arithmetic can 
can take the census of the state, and 
it is not proposed to make an ap- 
portionment at any other time than 
just after the census, but upon the 
basis of the census. It seems to me 
It is usual enough to take the whole 
number of inhnbit'^"* '"i^ the state, 



take the number of the several coun- 
ties and by a half hour's figuring to 
make out an apportionment of the 
state, to make it out so that there 
will be a certain fixed number of 
senators. It seems it is fixed at 
twenty-five. There cannot be any 
difficulty in making out an apportion- 
ment so as not to increase or dimin- 
ish the number of senators. It may 
be it would not do to divide the 
whole number of inhabitants in the 
state by the number of senators and 
start in on that basis. It may be the 
quotient taken would not be the 
proper ratio to fix for one senator, 
though it would be very near it, be- 
cause these excesses would about bal- 
ance each other. It might vary one 
senator from it. It is easy to ascer- 
tain after you have tried that rule 
and find you have not got just the 
number of inhabitants to apportion 
the right number of senators; then 
take a less or greater number as 
the case may be, until you get it. It 
is not difficult to do this, and if 
the gentleman will reffect for a few 
moments he will see. I trust gentle- 
men of the committee will reflect, 
and consider candidly upon this. I 
have submitted it as the best thing 
my judgment would suggest. For 
my own part, I want to get rid of 
float districts. They have worked 
badly heretofore. They do not fur-' 
nish proper representation. I want 
nothing to do with them. I find 
wherever my county has been con- 
nected with others in a float district, 
she has had no representation. She 
might just as well lose that excess. 
She gets no representation for it. 
The largest county in that float dis- 



318 



M UMBER OF LEGISLATORS 



Wednesday] 



TOWLE-SPRAGUE-LAKE 



[AuRUSt 2 



irict invariably will have the power 
to Ret the senators. This is not just, 
or as it should be, and I trust the 
same rule will be applied to the sena- 
torial apportionment that has been 
applied to representative apportion- 
ment. 

Mr. TOWLE. We will suppose a 
case, although ' lawyers know upon 
a general rule there should be no 
imaginable cases in which It can 
work injustice. We will suppose our 
state contains 200,000 inhabitants, 
and that the number of senators is 
35 — that is 8,000 inhabitants to one 
senator. Suppose there are 50 coun- 
ties in the state, and that one-half of 
those counties have a population of 
over 5,000, and the other half a 
population of three-fifths of the ratio, 
then you would find yourself in a 
predicament. In order to come up 
to that apportionment, it would re- 
quire at least, thirty-seven and a 
half senators, in order to get around 
and fulfil the distribution. Gentle- 
men talk about algebra and other 
subjects of grammar. Why I can prove 
my theory by throwing a few fig- 
ures together, and in a second show 
I am right. The idea is to give every 
county a senator, if possible. If we 
adopt this rule we will find ourselves 
in a predicament. 

The committee divided and the 
section offered by Mr. Gray was 
adopted. 

The chairman read the next sec- 
tion, as follows: 

Sec. 5. The first house of rep- 
resentatives under this constitution 
shall consist of seventy-five members, 
who shall be chosen for one year. 
Til.' first senate shall consist of twen- 



ty-five members, who shall be chos- 
en for two years. After the first elec- 
tion, 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. 

Mr. HASCALL. I move to strike 
out the words "seventy-five" where 
they occur, and insert "fifty-seven," 
and strike out twenty-five" and in- 
sert "nineteen." 

Mr. SPRAGUE. Mr. Chairman. I 
move to amend the amendment by 
striking out the words "seventy- 
five" and insert the v/ords "sixty- 
three," and strike out the words 
"twenty-five," and insert "twenty- 
one." 

Mr. WEAVER. I call for a divis- 
ion of the question. I want them 
put separate. 

Mr. SPRAGUE. Mr. Chairman. I 
will withdraw my amendment. 

The CHARIMAN. Gentlemen. The 
question occurs on the motion of Mr. 
Hascall. 

Mr. LAKE. Mr. Chairman. I 
had hoped someone else would have 
risen. I prefer not to take part in all 
the discussion. I am not willing to 
allow this amendment to be put 
without a word of protest. The whole 
object has been to give the new 
counties some representation, and we 
can only base our action this 
morning on the numbers as we have 
them here and if these numbers are 
to be reduced the whole object aimed 
at will be lost. I thought it was un- 
derstood and agreed that these new 
counties should have their proper 
representation. Thev cannot have 



NUMBER OF LEGISLATORS 



319 



Wednesday^ 



TOWLE-SPEICE— HASCALL 



[Autrust 2 



it if the numbers are to be cut down 
here. These numbers are not too 
large, and if that is really the view 
and sense of this committee, what I 
supposed it to be, to give represen- 
tation to the new counties as well as 
the old ones, then, certainly, this 
committee will not make any amend- 
ment at all, but leave it as it is. 

Mr. TOWLE. I think the legisla- 
tive committee have represented the 
views of the majority of this con- 
vention. I hope the gentleman will 
not press his amendment. 

Mr. SPEICE. Mr. Chairman. I 
don't see the object of the gentleman 
from Douglas (Mr. Hascall) in 
moving to reduce the number of the 
members of the senate and house 
of representatives. Now it is well 
known that the members of this con- 
vention, who come from the western 
part of the state feel under great 
obligations to him for the action — 
the disinterested action he took this 
morning in securing us our share of 
representation. Now if we reduce 
the number of members to fifty-seven 
and nineteen, it will make the ra- 
tio so high that the action of this 
morning will be of but little service 
to us, for it will be impossible for 
the border counties to be represent- 
ed. Now, to say, in the morning 
that we shall be represented, and 
then in the afternoon to adopt a 
measure which limits representation 
to so small a number of counties, 
that we cannot be represented, seems 
a foolish waste of time. 

Mr. HASCALL. Mr. Chairman. 
The question with regard to the 
number of the members of the senate 



and house of representatives did not 
arise this morning, and I don't know 
that in my action this morning I am 
bound on this question. By the pro- 
position I have introduced, the in- 
crease of members in the house 
would be eighteen and six in the sen- 
ate; that is quite a large increase. 
We granted the new counties all they 
asked. They even took less than we 
offered them. Now they are benefit- 
ed by this increase in the house and 
senate as much as the older counties 
are. We also propose to take the 
census next year and if they have 
made an increase they get the bene- 
fit of that increase. We also take 
the census again in 1874. Now we 
give them justice and whatever num- 
ber we may determine upon as the 
proper number of members of the 
house of representatives and senate. 
They must be satisfied with the num- 
ber that falls to their portion of the 
state. Now there are several consid- 
erations that determine me in sus- 
taining this proposition. The first 
is, if we make the senate to consist 
of twenty-five members and the 
house of representatives co'nsist of 
seventj'-five members we will have 
to build a new state house; we will 
not have a building that will contain 
all the members. There are only 
fifty-two members in this convention 
and I submit to the members wheth- 
er there is any extra room, and we 
have more room now than there 
would be in the winter, for then two 
stoves would have to be placed in 
the room. Hence I say that it is 
impossible to call together more than 
fifty-seven members to the house; 
secondly, I am opposed to the in- 



;;-io 



Wednesday 1 



NUMBER OF LEGISLATORS 



HASCALL-NEWSOM 



[August 2 



crease of the number of representa- 
tives. 

Mr. SPEICE. (To Mr. Hascall) 
Do you hold this convention respon- 
sible for the size of this building? 
Mr. HASCALL. I do not. but it 
is the duty of this convention to take 
these facts into consideration, and 
consider whether the state is prepar- 
ed to build a new house. We have 
got along very well up to this time 
with thirteen in the senate and thir- 
ty nine in the house, but this num- 
ber is now manifestly too small. The 
great state of New York has only 
thirty-two senators. All these things 
must be taken into consideration and 
when we propose to increase the 
number of our representatives, we 
must provide for a building that will 
be suitable to accommodate the leg- 
islature that will meet here next 
winter. 

Mr. NEWSOM. Mr. Chairman. 
Being a candidate for governor of 
this state, I am sorry that this mat- 
ter comes up at this time, for I am 
opposed to giving these western 
counties more than they deserve. I 
think there is danger of overload- 
ing this boat. Some of you candi- 
dates for official positions had better 
go down than to overwhelm this con- 
stitution. Now in my opinion this 
arrangement for representatives pro- 
vides much too large a number. The 
idea of giving to the western coun- 
ties more than they are entitled to 
because they are small in popula- 
tion is, in my judgment, mere hum- 
bug; and if these gentlemen who 
live west will remember that their 
country is new, and that they must 



wait until their part of the state has 
become better settled before they 
can expect the advantages that be- 
long to the older portions of the state 
I think they will not ask so much of 
us; because these new counties are 
sparcely settled is it just to say that 
they shall have the same representa- 
tion as the older counties? I think 
that It is unjust. This thing of pro- 
viding for members of the legislature 
merely to accommodate and gratify 
office seekers, is, in my opinion, the 
merest humbug in the world. It is 
my opinion that fifteen or twenty 
men would have made this consti- 
tution as well as the whole fifty-two. 
In what way does this large repre- 
sentation benefit the people? When 
if there are more men in this con- 
vention than is necessary why does 
not the same principl(^ apply to the 
legislature? In my opinion a few 
men do the work. There are at least 
ten men who are members of this 
body who do not even know what is 
going on. I see men all around me 
reading papers. There are too 
many members here, and I believe, 
sir, it is the case in the legislature. 
Now, sir, the idea I am advocating is 
not a popular one, I know, but it 
seems to me that it is mere humbug 
to talk about giving these western 
counties such a large representation. 
Suppose gentlemen, you make the 
number of the members of the legis- 
lature a hundred, will not the same 
proportion — will not the same ma- 
jorities, preponderate? I don't be- 
lieve that Otoe county needs more 
than two representatives, and I don't 
think Douglas county needs any 
more. Don't make this representa- 



NUMBER OF LEGISLATORS 



321 



Wednesday 1 



SPRAGUE— GRIGGS-MAJORS 



[August 2 



tion any larger. I don't think the 
people want It done. Don't accumu- 
late these state expenses. 

The Gentleman from Douglas re- 
marks, "shall we build a new capital? 
You cannot get seventy-five members 
into this house?" This adding to 
the legislature does no good, a few 
members always have to do the 
work. This thing of accumulating 
members here is objectionable, for as 
it has been said a less number could 
have gotten up a better constitution 
that we shall now. I am opposed to 
this multiplying numbers. 

Mr. SPRAGUE. Mr. Chairman. I 
am not a candidate for governor, but 
in reference to this amendment I 
have a few words to offer. Now, sir, 
under a different state of affairs I 
would support this amendment, but 
sir, we have adopted a rule fixing the 
modus operandi, by which this thing 
will be fixed. This amendment takes 
away from that rule the advantage 
it gives to these new counties, there- 
fore I am opposed to it. 

Mr. LAKE. How will it work a 
disadvantage to the new counties? 

Mr. SPRAGUE. As it is now they 
may have a larger representation, the 
effect of this is that they should have 
the same. If we take the popula- 
tion of the state and divide it by 
seventy-five it will take over 1600 of 
a population to entitle it to any rep- 
resentation and many of these new 
counties will have no representation 
at all 

Mr. GRIGGS. Mr. Chairman. I 
propose to give the figures. With 
fifty-seven members the full ratio 
would be 2,159. Three-fifths of 

21 



that number would be 1,295. A 
county having this number of inhabi- 
tants would then be entitled to one 
representative. With seventy-five 
representatives it would take 1640 
citizens to make a full ratio and a 
three-fifths ratio would be 984 citi- 
zens. That is by the population as 
shown by the last census which is 
123,056. 

Mr. Chairman, I am afraid we will 
be making this legislature too large 
if we make it seventy-five. In mak- 
ing this calculation, I find that only 
three counties would be cut out with 
fifty-seven members that would not 
be entitled to a member with seven- 
ty-five. I think that seventy-five is 
too many. 

Mr. ABBOTT. Mr. Chairman. I 
represent one of those western coun- 
ties. I don't know that the people 
want seventy five members, but 
whether they do or not I am not in 
favor of it. I do think that seventy- 
five and twenty-five is too large. 

Mr. MAJORS. Mr. Chairman. Be- 
fore we take any more aboard our 
vessel let us stop and see what we 
have got on board now. We may be 
held responsible by the people if we 
undertake to put too much on. Be- 
fore this we had but one session in 
two years, now we propose to have 
annual sessions, which will greatly 
increase the expenses. Our judge- 
ments are convinced at once that we 
have not the space in this room for 
more than fifty-seven members. I do 
honestly believe that the different 
portions of the state will be as well 
represented with that number as with 
seventy-five. 

Mr. GRIGGS. Mr. Chairman. I 



IV22 



Is UMBER OF LEGISLATORS 



Wednesday] 



MAXWELL-LAKE 



[August 2 



will State that with fifty-seven mem- 
bers there will be only two counties 
cut out that would be let in with 
seventy-five; Cedar and Madison 
counties. There is another. Butler 
county which has 1,292, within three 
of the number for fifty-seven and I 
suppose the legislature would allow 
that county a representative. It only 
takes 311 more inhabitants and al- 
most any of these counties will in- 
crease that much soon. 

Mr. MAXWELL. Mr. President. 
I think there will be no trouble about 
seating 100 representatives in this 
hall. The old senate chamber in the 
Capitol at Omaha was not half the 
size of this room and yet thirty- 
nine gentlemen sat there. This hall 
can be arranged to accommodate sev- 
enty-five members, so that there is 
no excuse on that plea, because a 
hundred members can be accommo- 
dated in this hall. 14 5 members have 
sat in convention here and were not 
uncomfortable. 

Mr. LAKE. I would sugest that 
you dispense with the desks altogeth- 
er, and have rows of seats. 

Mr. MAXWELL. We have got the 
desks paid for and propose to use 
them. The next objection is on 
account of expense. I have voted 
constantly to reduce the expense of 
this state government. I have voted 
to reduce salaries, and am ready to- 
day to vote down salaries of several 
of these officers, and the justices ot 
the supreme court. We ask to re- 
duce these expenses so as, if possible, 
to confine them to the very lowest 
possible limit. But Mr. President, 
here in new counties that are settling 



up we find last year 600, 800 or per- 
haps 1,000 inhabitants; now these 
people ask for representation. It is 
true my friend from Otoe (Mr. New- 
som) being of a generous nature 
states he will give them the Otoe rep- 
resentation, that they will only claim 
one or two; I rather think he will in- 
sist on his full share, wo all know 
counties desire to be represented and 
ought to be represented. Now this 
whole system of float districts ought 
to be discouraged as far as possible. 
We are in a float district, in connec- 
tion with Douglas, Sarpy, Washing- 
ton and some other counties, and the 
gentleman was elected from Douglas, 
he is a good man, but I believe he has 
never consulted a single member 
from Cass county 

Mr. LAKE. Has the gentleman 
from Cass ever consulted with the 
gentleman from Douglas who repre- 
sents him, has he ever laid any mat- 
ter before hi«i? 

Mr. MAXWELL. The .gentleman 
is supposed to represent Cass coun- 
ty. I do not find any fault with him, 
but that is the result of these float 
districts. He was elected without 
any opposition from our county, 
that is the effect of this float system, 
that the stronger county takes the 
delegation. As to this increased ex- 
pense;, it is proposed to have fifty - 
seven members, perhaps seventy-five, 
what is the increased expense? It 
amounts to scarcely anything. Now 
as to the number of senators. It 
seems to me twenty-five will be a 
fair proportion and will allow many 
of these new counties to send a sena- 
tor. 



NUMBER OF LEGISLATORS 



323 



Wednesday] 



MANDERSON-MAXWELL 



[August 2 



Mr. MANDERSON. Will you per- 
mit me. I was unfortunately absent 
from the hall and understand a part 
of your remarks had reference to me. 

Mr. MAXWELL. I stated you were 
a member from the district composed 
of Cass, Douglas, Sarpy and other 
counties, and as far as I knew you 
were satisfactory to the people, but 
I believe you never consulted with 
the Cass county delegation as to any 
matter in regard to any districts or 
thing else. 

Mr. MANDERSON. Has the gen- 
tleman ever consulted with his col- 
league the float member of the dis- 
trict? 

Mr. MAXWELL. I do not know 
that is necessary. 

Mr. MANDERSON. Perhaps I 
might view the matter in the same 
light. Permit me to say L did con- 
sult on a matter I thought was of 
local interest, with his colleagues 
Messrs. Kirkpatrick and Kenaston. It 
is said that an eagle does not mate 
with a carrion crow. 

Mr. MAXWELL. I have only this 
to say, while we have no desire to 
find any fault with the gentleman, 
though he does assume such a super- 
cilious air; that is the effect of these 
large float districts. While I do not 
propose to use language which is 
disgraceful, I say I am very much dis- 
appointed in the gentleman from 
Douglas (Mr. Manderson.) I thought 
he was a gentleman, but find I was 
entirely mistaken. I say we want 
to discourage this whole system of 
float districts, and as far as possible, 
permit counties to elect their own 
senators and members of the house. 



Here by reducing the number of 
numbers you permit the small 
counties who have not a sufl!icient 
number, to form a representative 
district, in many cases not more than 
two counties would be required. In 
regard to senatorial districts, in 
many cases you form a district com- 
posed of three or more counties, 
this is very desirable in a new coun- 
try. The gentleman says, one hun- 
dred members is entirely too large, 
a smaller number could dispatch 
the business much more rapidly. 
The object is not entirely to dispatch 
business rapidly, but to satisfy the 
people, and that can only be done 
by having the people represented. 
One man, or ten men could probably 
do the business of this convention 
more rapidly than the gentlemen 
here, but they come here as the rep- 
resentatives of the people, and ten 
men would insert some provisions 
not satisfactory to the people, con- 
sequentlj' it is necessary for these 
fifty-two members to express an 
opinion on the propositions. My 
friend from Douglas would be in fa- 
vor of several districts, but might be 
in favor of female suffrage, compul- 
sory education, reformatory schools 
and other matters that would not be 
satisfactory to the people. As to the 
annual sessions, I do not understand 
it is necessary to have them. I un- 
derstand we can have biennial ses- 
sions as well as now, I believe this 
house has not expressed any opinion 
on that point. Mr. Chairman, it is 
not the amount of representation 
these parties have, but the fact that 
they have representatives. Now if 
any county west of here has a rep- 



324 



NUMBER OF LEGISLATORS 



Wednesday] 



LAKE 



[August 2 



resentativo on the floor it does not 
matter whether they have a great 
nunibor or not so they have 
their interest. As to this cry about 
unnecessary expense of the legisla- 
ture made by parties who have been 
anxious to increase the cost of state 
government, I think it comes in a 
very uncalled for manner. We are 
ready to reduce the expense, limiting 
the number of days to forty, and the 
pay to three dollars per day. 

Mr. LAKE. Mr. Chairman. I 
have, thus far during the discussion 
of this question in respect to repre- 
sentation, kept silence. I was quite 
willing that it should be fixed up in a 
manner that would suit the people of 
the west, if it be possible to do so, 
without incurring too great a burden 
upon the people of the state. Now, 
as has been well said by the gentle- 
man from Hall (Mr. Abbott,) I think 
they ought to be satisfied if justice 
is done them in respect to this mat- 
ter; and if they are given representa- 
tion in all those counties where they 
show themselves possessed of three- 
fifths of the ratio of representation, 
they ought to be well satisfied with 
any ratio that the majority of this 
convention shall think best to make. 
Then what do we find? We find in 
the report of this committee a pro- 
position to increase the number of 
the house of representatives up to 
seventy-five, and I doubt whether 
there is a gentleman upon this floor 
but that in his conscience, must come 
to the conclusion that it would be a 
larger and more unwieldy body than 
ought to be provided for in this con- 
stitution, all things considered. 
When we look, Mr. Chairman, upon 



the conveniences the state has pre- 
pared for this legislature, and we 
cannot ignore this fact — what do we 
find? We have a hall for the rep- 
resentatives, which affords meager 
accommodations for fifty-two mem- 
bers, with the corps of reporters of 
the press, and the attendants that are 
always provided for. I say the ac- 
commodations are meagre, and when 
gentlemen propose, in order to ac- 
commodate themselves to so large a 
body to submit to unnecessary in- 
conveniences; an inconvenience 
which will actually necessitate the 
erection of a new capitol building, I 
do not believe that the people of 
the state will tolerate it. As was 
well said by the gentleman from 
Otoe, this hall is large enough for 
any house of representatives that 
ought to be provided for many years 
to '^'>me. When we look at any 
otner state of the Union, larger in 
population, in wealth, in all kinds 
and varieties of interests, agricultu- 
ral, commercial, and otherwise, no 
such representation as is proposed 
here can be found. We look at the 
state of New York. We find no 
such mammoth representation com- 
pared to their numbers as is found 
here. In no other state of the union 
with one or two exceptions is so large 
a representation provided for. Gen- 
tlemen ask whether this convention 
is responsible for the size of the hall. 
Mr. Chairman, we take the hall as 
provided by the state, nor did peo- 
ple send us here to find fault with it, 
or to provide a new one. They sent 
us here to provide a constitution that 
should be adequate to the wants of 
the people. They did not send us here 



NUMBER OF LEGISLATORS 



325 



Wednesday] 



[August 2 



to go into any extravagance what- 
ever; and as a representative of one 
portion of the state directly, and in- 
directly of the entire state, I say 
that in my opinion the people do not 
•want any such representation as is 
provided for in this report; if we 
Increase the senate up to nineteen 
and the house to fifty-seven members 
we shall make a body that will* be 
sufficiently unwieldy, and which in 
its expenditures, will bear sufficient- 
ly heavy upon the shoulders of the 
people. Now, sir, while I, coming 
from one of the most populous coun- 
ties of the state am willing to let the 
western gentlemen fix the fraction 
that shall entitle them to representa- 
tion, I am not willing to sit still and 
permit a representation to be pro- 
vided that shall be so unwieldy, and 
expensive as the one proposed. I am 
willing you should fix your fraction, 
but when you have done that I ask 
that you be content with a reasonable 
representation. In any event, the 
majority, the relative strength of the 
east and west, if you see fit to resort 
to those terms, will be the same. The 
proportionate strength of the east 
over the west, if you see fit to di- 
vide the state by any such designa- 
tion will remain the same, by any 
system you can adopt, while the west 
would have a greater proportion than 
a fair division would entitle her to. 
The comparative strength of the 
two sections will be the same, wheth- 
er the ratio of representation be a 
large number or a small one. And, 
itlr. Chairman, I do not think the 
western counties have, in times past 
or more recently, any great cause of 
complaint, in respect to what has 



been done for them, or as affecting 
their interests in the legislature. 
For, I am certain that the legislature 
is generally willing, so far as my 
experience has gone, to accord to 
them all those just measures which 
are adequate and necessary for their 
prosperity. I am sure sir, that no 
man can be found in this body, nor 
in any legislative body that could 
be called together in this state, that 
would deny to any portion of the 
state, any measure that would be cal- 
culated to advance their material 
prosperity? Why, sir, are we not 
all interested in the prosperity of 
every portion of the state? The gen- 
tleman from Otoe, Nemaha and 
Douglas counties, are all interested, 
just as much in the prosperity of the 
west — of Hall and Butler, of Cedar 
or of L'eau-qui-Court(, as the rep- 
resentatives of those districts them- 
selves possibly can be. It is true it 
may be necessary and proper that 
there should be someone to show to 
the legislature what those wants are; 
but when that is done, whether 
that person represent one county or 
two, is not the request if reasonable 
always granted? Who is there to 
deprive them of their rights. When 
those rights are made known? No 
one, Mr. Chairman. And it has 
been shown by the gentleman from 
Gage, who has taken the pains to 
apply his arithmetic to this question, 
that in this reduction of represen- 
tation which will save to the state 
thousands, tens of thousands of dol- 
lars, only two counties will be de- 
prived of a representation, which, 
by the report of the committee would 
be entitled to a separate representa- 



326 



LEGISLATIVE REPRESENTATION 



Wednesday ) 



MAXWELL— LAKE 



[August 2 



tlon upon the floor of the house of 
representatives. Now, sir, is there 
any necessity for this great increase — 
t< r us to provide for a legislative 
bofly which shall, according to the 
calculation and arrangement of the 
gentleman from Cass, be compelled 
to sit in a circular row of plain 
benches, and without desks, with- 
out reporters, without pages, with- 
out any officers or attendants that are 
usually found in legislative bodies — 

Mr. MAXWELL. Did I make any 
such statement? 

Mr. LAKE. Is it necessary that 
our desks, which have been pro- 
vided for, should be cut down, as he _ 
proposes, in order to let in the in- 
creased representation? Why, sir, 
we should provide a constitution 
suitable to the wants of the people. 
We should provide a legislative body 
also suitable to their wants and to 
the building which the state has 
prepared, and which shall not de- 
mand an immediate outlay of hun- 
dreds of thousands of dollars for 
the construction of accommodations 
for this mammoth assembly, that it 
is proposed to foist upon the people. 
Sir, I am willing, as the gentleman 
from Otoe said he was willing to 
give to those western counties that 
shall have three-fifths of the ratio 
of representation, a representative in 
the legislature, even if we shall take 
a representative or two from us. 

Mr. MYERS. Not L 

Mr. LAKE. I. for one, will sub- 
mit to it, rather than thrust upon the 
people an overgrown system which 
shall be so expensive as is this one 
proposed by the committee. I be- 



lieve, Mr. Chairman, that the inter- 
ests of Douglas county would be just 
as safe; the interests of Otoe county 
would be just as safe in a decreased 
representation as in an increased 
one. And, sir, I believe that when- 
ever a country is fairly and reason- 
ably represented, if it has a number 
proportionate to the rest, it is all 
that is needed. And if all shall be 
cut down alike, then they stand in 
respect to each other, in the same 
proportionate strength as with the . 
increased representation; one coun- 
ty is given no advantage over the 
other. If Douglas county is cut 
down one or two; Otoe county in the 
same ratio, and Richardson and Ne- 
maha the same; each is affected alike 
and when each people are represent- 
ed according to numbers, then no in- 
justice is done. And I tell you, Mr. 
Chairman, we need but our experi- 
ence in this convention., to convince 
any reflecting mind that the work 
of a legislature, the work of a con- 
vention, can be better done, quick- 
er done, can be done if I may be 
permitted the expression — -more ac- 
ceptably to the people if the body be 
only of moderate size. I believe, 
sir, as the result of this convention, 
we shall send forth to the people, if 
we go on as we have been going for 
the past few days, a constitution 
which will prove the absurdity of 
these mammoth bodies. 

When we first started out upon the 
business of making a constitution, 
I thought we were going to get along 
smoothly and that we would make 
one that would be acceptable to the 
people; one that would not bear up- 
on their shoulders too heavily; but. 



CRITICISM OF CONSTITUTION 



327 



Wednesday] 



LAKE 



[August 2 



Mr. Chairman, I fear the result of 
our present mode of proceeding. I 
don't wish to spealc in a manner that 
I shall be understood as finding 
fault with any body or any man 
but I do think that the course which 
has been pursued here for the past 
few days has done much damage. 
I believe there is being engendered 
throughout this state, in consequence 
of what we are doing — in conse- 
quence of the extravagant provis- 
ions which we are incorporating in 
the constitution — I say there is being 
a feeling engendered which may 
work its defeat. We have, it is true, 
both political parties clamorous for a 
new constitution. But why are they 
clamorous? Will gentlemen please 
reflect upon the reasons why a 
constitutional convention was de- 
manded by the people. What were 
they? The first, Mr. Chairman, was 
a general desire to have our judici- 
al system reformed and reorganized. 
That, sir, was foremost in the cata- 
logue. It was to provide for the 
creation of an independent supreme 
court, and perhaps the foundation of 
a new judicial district. Another rea- 
son was the question of extending 
county and municipal aid to railroad 
and other corporations. When you 
have mentioned these, you have nam- 
ed the principal reasons why a new 
constitution was required; but when 
assembled in pursuance of these de- 
mands of the people, and entered 
upon the labors which we were sent 
here by the people to perform, in- 
stead of confining ourselves to this 
duty, we have traveled outside, and 
are getting up a' constitution which 
will require a much larger expendi- 



ture of money in order to carry out 

its provisions properly than is ex- 
pended in many of the older states 
in the union. When we fixed the sal- 
ary of the governor far above the me- 
dium of other state; when we fixed 
the salaries of the judges above the 
average, and provided for a legisla- 
tive representation far above that of 
most of the other states; when we 
require an expenditure of $75,000 to 
$100,000 each j^ear to carry on our 
new system of government — what 
shall we say when we have finished 
our labors here and returned to our 
homes — what shall we say in vindi- 
cation of our course? Is there a gen- 
tleman upon this fioor that can go 
before his constituents, and tell them 
why he voted to create five judicial 
districts in this state; can he give 
an answer which will satisfy his own 
conscience? Can he tell them why 
he fixed the salary of the supreme 
judges at $3,500 when they will be 
required to do but two months work 
in the year. Can he tell them why 
he foisted upon the people, a con- 
stitution that is to bring together 
seventy-five representatives and 
twenty-five senators ,at an expendi- 
ture of three to four hundred dollars 
per day. If he can explain these 
things satisfactorily, then he should 
go on and continue in the course th&t 
has been pursued for the last few 
days; but even then he should re- 
flect, each and every one should re- 
flect upon the work we are sent here 
to perform. We are not engaged in 
the duties of ordinary representa- 
tives in the state legislature. We 
should remember that we are making 
the fundamental law of the state — 



328 



LEGISLATIVE APPORTIONMENT 



Wednesday! 



LAKE— HINMAN— PRICE 



[August 2 



that which shall last for years — a 
law that can not be changed as in 
case of enactments made by one leg- 
islature, merely to be modified or 
repealed by the next. We should act, 
rather as prudent, considerate states- 
men, looking beyond the bounds of 
the particular locality which sends 
us here to discover and secure what 
will benefit the whole people. I 
know sir, for one that at times it is 
difficult to throw off this feeling of 
"locality." I have experienced that 
difficulty myself, and I know that 
others have experienced the same; 
but I conceive it to be my duty, as 
did the gentleman from Hall (Mr. 
Abbott) to strive to lay aside this 
feeling. He said that while he 
would like to secure to his own par- 
ticular county a larger representa- 
tion upon this floor than it now has, 
it will entail too large an expense 
upon the people of this state to in- 
crease the legislature to the extent 
which has been proposed, and there- 
fore he does not feel justified in do- 
ing it. 

Mr. HINMAN (To Mr. Lake) Will 
the enumeration proposed give a 
small county any advantage over the 
older, and larger counties? 

Mr. LAKE. They have no advant- 
age according to the first apportion- 
ment, but I am inclined to think 
that they will have the advantage 
in this. If the proposed provision 
giving to new counties, not now hav- 
ing a ratio of population, an inde- 
pendent representation whenever 
they shall acquire a population 
equal to three-fifths of the ratio 
agreed upon, be engrafted upon the 
constitution, those counties which 



may be organized hereafter, will 
have an undue advantage. If that 
provision is not engrafted upon the 
constitution they will all stand alike. 
But, Mr. Chairman, I believe and 
hope this section, as reported by the 
committee, will not be sustained. I 
would much prefer that the senate 
be reduced to 17, and the house of 
representatives to fifty-one. It would 
be more in accordance with the wish- 
es and interests of the people. I be- 
lieve all the wants of the people; 
but the utmost limit I am willing to 
go is that contemplated by the pro- 
posed amendment — nineteen sena- 
tors and fifty-seven representatives. 
Mr. PRICE.. Mr. Chairman. I 
do not wish to detain the committee 
for any length of time, but inasmuch 
as I have the honor to represent the 
extreme southwestern corner of the 
state, I wish to notice the drift of the 
argument I have listened to atten- 
tively for the last hour and a half. 
I wish to notice what the gentleman 
from Otoe (Mr. Newsom) said. I 
wish to say to the gentleman that he 
was not asked to give to the western 
counties any advantage which is not 
enjoyed by the county of Otoe, or the 
county of Douglas. There was a 
motion made to give the western 
counties an advantage, but that was 
voted down by the western members. 
They are not asking for any undue 
advantage in the apportionment. 
While I think a large representation 
would be an advantage in the next 
legislature I am not prepared to say 
that seventy-five members in the 
house of representatives is not larger 
than is necessary, but if it is large 
I am in favor of having a large rep- 



NUMBER OF LEGISLATORS 



329 



Wednesday] 



KIRKPATRICK— ABBOTT 



[August 2 



resentation from the fact that I am 
satisfied that the people of the state 
of Nebraska will never complain of 
too much representation. I wish to 
state, Mr. Chairman, that I don't 
think it is necessary to give the 
west any advantage, we ask only a 
fair show. Give us a representation 
equal with that of other parts of 
the state, and we are satisfied. I be- 
lieve that I shall not vote for seventy- 
five and twenty-five, but I shall vote 
for sixty-three and twenty-one. We 
are not fixing this for all time to 
come, but only for the next legisla- 
ture. 

Mr. KIRKPATRICK. Mr. Chair- 
man. I claim the indulgence of the 
committee while I make a few re- 
marks on this subject. I rise to no- 
tice some of the arguments offered 
against this proposition. I think, sir, 
we have been treated with a new 
line of argument. The gentleman 
Irom Douglas has told us we must 
Irame our constitution in propor- 
tion to the size of a certain building 
we have in the state; that because 
we have a small room here we should 
elect a small legislature. Now, Mr. 
Chairman, when a young man start- 
ed out after getting- married, how does 
he do? Perhaps he is living out in 
one of those sod houses, or in a 
house with one room. He looks 
about him and says "what shall I do? 
I am not able to enlarge this house 
and as it is there is no more room 
than we need now, and I cannot 
liave any children and increase my 
family?" What will he do, sir? 
Why, sir. he goes out and he does 
the duty imposed upon him by his 
Creator. (laughter) — he does his 



duty to posterity sir, — but sir, that 
is not a fair representation. 

I understand, sir, that when Kan- 
sas started out under her constitu- 
tion with seventj'-five representatives 
and twenty-five senators it was with 
power given to the legislature to in- 
crease it to 100 representatives and 
thirty-three senators. I say if any 
department of this state should be 
larger it should be the legislative de- 
partment. That is what we demo- 
crats want, because we believe we 
can trust important matters to our 
representatives. 

Mr. ABBOTT. Mr. Chairman. I 
understand that the amendment to 
the amendment to make the number 
sixty-three and twenty-one was with- 
drawn. I will offer that amendment 
now. 

The CHAIRMAN. The question is 
on the amendment offered by the 
gentleman from Hall (Mr. 4.bbott). 

The amendment was not agreed to. 

The CHAIRMAN. The question 
is on the amendment striking out 
"seventy-five" and inserting "fifty- 
seven," and striking out "twenty- 
five" and inserting "nineteen." 

The committee divided and the 
motion was agreed to. 

Mr. KIRKPATRICK. I move to 
strike out the word "one" in second 
line and insert "two." 

Mr. STRICKLAND. Mr. Chair- 
man. It seems to me it would suit 
the interest of the people better to 
have annual sessions. I am decid- 
edly in favor of making the term one 
year. 

Mr. MYERS. Mr. Chairman. I 
believe the public expression of opin- 



330 



ANNUAL OR BIENNIAL SESSIONS 



Wednesday] 



MOORE-WAKELEY- KIRKPATRICK 



[Auerust 2 



ion has been given more decidedly in 
reference to annual sessions than up- 
on any other subject. I am myself 
decidedly in favor of annual sessions, 
for the reason, that when represen- 
tatives come here every year they 
will be in immediate connection with 
the business affairs of the state; they 
will have supervision over the state 
officers. It is an old maxim that 
"when the cat is away the mice will 
to play," and in no other state have 
the mice played with more impunity 
than in this state. I therefore desire 
the legislature should be here every 
year to supervise, inspect and control 
the state officers in such manner as 
will secure the public welfare. 

Mr. MOORE. Mr. Chairman. A 
word fitly spoken is like "apples of 
gold set in pictures of silver." I think 
nothing has been more neatly said 
than was said by the gentleman from 
Douglas (Mr. Myers), the people are 
the masters. We send our servants 
here to do our work, and we want 
these men to come back and report 
to us yearly what they have done and 
what they propose to do. I think 
one year is sufficiently long. 

Mr. WAKELEY. Mr. Chairman. I 
do not suppose anything I can say 
on this question can change the mind 
of any member of this committee. I 
do not agree with my colleague (Mr. 
Myers) that annual sessions are nec- 
essary, still I am very much inclined 
to think the people of this state de- 
sire annual sessions. A man will 
sometimes differ with the people. 
The people of Wisconsin tried three 
years to get an amendment before 
the people providing for biennial ses- 
sions. It was submitted, and I think 



about one-twentieth of the voters 
voted upon the subject. Milwaukee 
and Madison voted against it and by 
the indifference of the people to the 
subject it was lost. I propose to 
vote for inserting in this constitution 
a very stringent prohibition upon 
special legislatures, as they did in 
Illinois. I propose to prohibit leg- 
islatures from passing special laws; 
in other words, to cut off local legis- 
lation. If that is done^ I do not 
think sessions of the legislature are 
required every year; and when we 
are advocating economy do not let 
us "save at the spigot and waste at 
the bunghole." An annual session of 
the legislature will cost this people a 
great deal of money. We fixed the 
number at seventy-six, and the con- 
templated pay of members is four 
dollars making $300 a day for the 
pay of members and allowing $100 
a day for other expenses, you have 
$400 per day to run the legislature; 
sixty days will make it $24,000. I 
think I speak within bounds when I 
say every session will cost from 
$25,000 to $40,000, it will not be 
less than that. By prohibiting these 
annual sessions we can save a sum of 
money that is worth saving. 

Mr. KIRKPATRICK. Mr. Chair- 
man. I beg gentlemen to think seri- 
ously of this proposition. I have not 
offered it in jest nor to get myself on 
the record. It is the conviction of 
my mind after studying the question 
and after a deal of experience in leg- 
islative bodies. I think the people 
desire this provision. What is the 
work of an annual session? It has 
been passing acts to locate territorial 
roads, and an unlimited number of 



ANNUAL OR BIENNIAL SESSIONS 



331 



Wednesday] 



MASON— MYERS 



[August -i 



mill dam companies have been in- 
corporated and also a great many pa- 
per towns where there was not a 
house. We want to provide against 
this special legislation in this con- 
stitution. It is a very bad system 
that changes the laws every year be- 
fore they are understood by the peo- 
ple or the courts. 

Mr. MASON. Mr. Chairman. I 
desire to say a few words in respect 
to this matter, because I regard it 
of vital importance to the constitu- 
ency that I in part represent. I 
think that biennial sessions are bet- 
ter for the people of the state at 
large than annual sessions. I think 
with the gentleman who just address- 
ed this committee, but a very small 
portion of the enactments which 
stand upon the statute books are 
general laws, the greater portion of 
them are special enactments. I trust 
before this convention closes its la- 
bors it will prohibit by constitutional 
provision any such enactments. And 
when we have general laws to meet 
these special emergencies that arise 
in new counties and in different lo- 
calities over the state, what neces- 
sity sir, of annual sessions? I can 
conceive of none; besides, I believe 
it works more evil than good; and 
I do hope that the motion of the gen- 
tleman from Cass (Mr. Kirkpatrick) 
will prevail. I question whether, 
sipce we became a state, since we 
put the machinery of the state in mo- 
tion, whether anything has been 
gained by the body politic by the 
respective called sessions that have 
been held but on the contrary, there- 
to. I think very much has been lost, 
as the history of the legislature of 



this state will show. And, besides, 
I think the people will be vastly 
better satisfied with biennial ses- 
sions. I have heard no demands for 
an annual session of the legislature 
from any quarter, and I trust the 
moti^on of the gentleman from Cass 
may not prevail. 

Mr. MYERS. Mr. Chairman. A 
few words in addition to those I have 
already expressed on this subject and 
I shall have done with it so far as I 
am concerned. We have had a 
number of called sessions since the 
organization of the state — quite as 
many as regular biennial sessions. 
They were called for the considera- 
tion of particular subjects specified 
and defined in the proclamation of 
the executive concerning them. Just 
such propositions as suited the ca- 
price and fancy of that officer some- 
times, it is true, including a measure 
which' he may have deemed essential- 
ly necessary. They were, however, 
principally of a special character, as 
an examination will show. Whether 
these called or extra sessions have 
done any practical good, I am not 
prepared to say. The hands of the 
legislative power were effectually 
manacled. Modes and bounds were 
prescribed by the call of the governor 
beyond which no one dared to go 
or had a right to go. A general 
clause permitting the legislature to 
enact laws such as might be deemed 
promotive to the public good, was 
not in any one instance inserted into 
any of these proclamations for extra 
sessions. Probably the governor had 
no power to state a permission so 
general or to clothe the legislature 
with power by which their best judg- 



332 



ANNUAL OR BIENNIAL SESSIONS 



Wednesday] 



MYERS 



[August 



mem could be exercised for the gen- 
eral benefit and good of the people 
without executive dictation and 
demarkation. Now, this would 
seem to be a strong and un- 
answerable argument for annual 
sessions of the legislature. The last 
extra session was a remarkable one, 
in many important particulars. 
Their work was chalked out by the 
governor, defined and stated in posi- 
tive terms, and although questions 
arose, of magnitude and of over- 
whelming importance, touching the 
administration of our financial af- 
fairs, yet no helping hand could be 
stretched out to the sinking, perish- 
ing and plundered state. In the way 
stood a defiant executive, surrounded 
and supported by associate officers 
and companions in wrongdoing, who 
held them firmly and grimly to what 
was nominated in the bond. It is 
true the grip at the throat of the 
state was for a moment relaxed, but 
only for the purpose of making a 
stronger grip upon the coffers of the 
state. The legislature then was over- 
awed by executive power, or over- 
come by something equally as potent, 
probably executive blandishments, 
which secured their approval to all 
that had been done, with or without 
authority of law. Had there been a 
new legislature, new men, new ideas 
fresh from the ranks of the people, 
I apprehend a new order of affairs 
would have taken place, that re- 
forms would have been instituted, 
that the leeches fattening and roll- 
ing in luxury upon their ill-gotten 
gains would have been forced to 
loose their hold upon the vitals of 
the body politic. The inability or 



refusal of the ' legislature to per- 
form its whole duty, when the 
executive released the rule, and al- 
lowed them to open the case, must 
ever remain a matter of profound 
and sorrowful regret. I refer to it 
and to them more in sorrow than in 
anger. I have tried to bring myself 
to the charitable belief that the ma- 
jority of that legislature had at 
least tried to do its duty, but I at- 
tribute their failure to the fact that 
it was an old legislature, that it 
was limited and circumscribed in its 
actions by a cautious and deeply im- 
plicated executive power, nor the 
will if they had ever manifested any 
in earnest, to do so. Now represen- 
tatives in these walls every year. 
Let them stand guard at the por- 
tals of the treasury. The legislature 
ought to appear here once a year at 
least to see how public affairs are 
administered by their state servants. 
And not only this, new enterprises 
are started by the genius, enterprise 
and capital of the live men of our 
state. These may need the friendly, 
kindly and considerate help of the 
legislature. It has been found to 
be so in all the states who have an- 
nual (iessions, and in none more so 
than in this young giant of the great 
west. Let enlightened, honest and 
reliable men be elected to the legis- 
lature every year. We have them 
amongst us. They are found in 
every walk and pursuit of life — in 
every department of production and 
industry, gathered here from almost 
every state in the union and parts 
adjacent, including a large portion 
of civilized Europe. We are not poor 
in manly fiber — feel no want of ma- 



ANNUAL OR BIENNIAL SESSIONS 



333 



Wednesday] 



MYERS 



[August 2 



terial in all that constitutes the 
wealth and glory of prosperous com- 
munities. Now let us use this wealth 
of mind, of honesty, integrity and en- 
terprise for the advancement of our 
state to the possession of true great- 
ness and prosperity. To accomplish 
this I submit we ought to have an- 
nual sessions of the legislature. We 
have had them nominally — let us 
have them in earnest. If I thought 
it would in any manner operate to 
the contrary, or to the injury of the 
public interest. I would not for a 
moment support the proposition. Not 
for a moment. But I have faith in 
the people, confidence in the ability 
of every good citizen to represent in 
his own proper person the great prin- 
ciple that the people are fully able to 
govern the state. It is the state and 
not the people, that has become cor- 
rupt, only, now, for the time being, 
evils cannot last long in this country. 
Those who get up these evils and 
perpetuate wrong upon their fellow- 
men, under cover of official position, 
are overtaken swiftly and replaced 
by other and better men. In that 
consists our safety, and I hope this 
convention will offer every facility 
to enable the people to do this fully 
and effectually whenever the oc- 
casion for its use may arise. In such 
emergencies procrastination is the 
thief not only of time, but also of 
justice. Evils become, by impuni- 
ty so fastened upon the body poli- 
tic as to render removal a work of 
difficulty, of labor and of pertina- 
cious perseverence. Let us lop off the 
corruptionist as soon as we catch 
him. Let us catch him early and lay 
strong hands upon him, the arm of 



the law; let us seize him whenever 

we find him and in whatever position 

he may have intrenched himself. He 

must be stripped of his tarnished 

honors. That is admonitory to the 

future and corrective of the past. We 

j owe this duty to succeeding genera- 

1 tions. If we fail to do it, history will 

[ not fail to compliment us for our 

1 want of moral courage and failure 

j to discharge our duty as American 

I citizens. 

But why pursue this unpleasant 
I subject? It is only referred to as an 
argument in favor of annual sessions 
of the legislature. 

The last legislature has been refer- 
red to in this discussion, sometimes 
in terms of censure, oftener in words 
of praise. I do not know that this 
is the time to pass impartial and 
fair judgment upon the work accom- 
plished by the last legislature, the 
session of 1870. I must say, how- 
ever, for one, that I am highly pleas- 
ed with the work that has been done. 
In the justice of enactments it will 
compare favorably with that of any 
other similar body of men in this 
union. It has come up to the stand- 
ard of the times. It has met the 
enemy boldly and fearlessly and 
come through the fearful fray more 
than victorious. It has bearded the 
lion in his den and scattered his 
cubs to the four winds of heaven and 
taught a lesson to them which they 
can never forget and which will have 
a salutary effect upon all such for all 
time to come. This is the progres- 
sive movement to have the people at 
the capital every year to remodel 
their laws, to enact new measures 
as well as to remove old laws that 



334 



GENERAL vs SPECIAL LAWS 



Wednesday] 



MYERS 



[August 2 



may be inoperative, injurious and 
imperfect. This ought to be done 
promptly, and when finished let them 
go home and submit their action to 
the unbiased judgment of the peo- 
ple, their constituents. No harm can 
result from this, but on the contrary 
much good will be the result. This 
is the highest duty and the mission of 
free government. 

Some one has said that I am a 
stand-still man — that I am opposed 
to progress. I am sir, opposed to 
progress in the wrong direction. I 
am too old, I trust, as has been in- 
sinuated, to lend support to ill-di- 
gested legislation, and unwarranted 
departures from well-tried, substan- 
tial laws around which cluster the 
experience, the knowledge and vir- 
tue of time and trial. To them I ad- 
here, come opposition from whence 
it may. I will neither be coaxed or 
driven from the path of duty. I 
think that fact ought to be under- 
stood and well understood by this 
time. It was progress that brought 
me here. I have not yet reached the 
end of it and do not desire to, until 
raised by a higher power to another 
sphere of usefulness where reproach 
for duties performed will never be 
heard. But let me hope we will have 
annual sessions in this state. Some 
talk of special legislation as an evil. 
So it is when used by selfish men. 
But let me ask, what constitutes 
•special legislation? The creation of 
monopolies to override the interests 
and rights of the people, although 
they may be created by general laws. 
General laws on this and kindred 
subjects have done more harm in 
this and other subjects than any law 



ever passed in a special law. We 
must have in certain well understood 
cases, special laws for special sub- 
jects. Would you con