Gc ^- Lj
978.2
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V.12
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1237392
C5E:n^ALOGY COl^LECTI
ON
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Gr. 97B.2 N27p v. 12, Ber. 2, v. 7
Nebraska State Historical.
SOC lETY .
f-'ubl-icatioms cdf the nebraska
State Historical Society
OLIVER PERRY MASON
PATRIOT. PIONEER. JURIST
Horn May 13, 181^9, at Brooktield, New York.
Ou-d Aiiu-ust 17. 1891. at Lincoln, Nebraska. Settled
at Nebraska City in 1855 Member of both Houses of
the I.e<^islature. and President of the Council Provost-
Martial of the District for Nebraska, and Colonel in
I lie State Militia. First Chief Justice, Secretary of
the Hoard of Transportation. Lecturer on Medical
.lurisprudence in the State University. Constitution
maker. 18(511. iSTl.
OKKICIAL REPORT
OF THE
DEBATES AND PKOCBEDINGS
IN THE
NEBRASKA CONSTITUTIONAL CONVENTION
Assembled in Lincoln, June Thirteenth, 1871
VOL. 11
From the original shorthand notes of John T. Bell, John Hall, Dan Erown
and John Gray. Prepared for printer (1871) by Guy A. Brown, Clerk o
the Supreme Court of Nebraska.
Revised, edited and indexed for publication (1907) by
ADDISON E. SHELDON
Director of Field Work, Nebraska vState Historical Society
Published by the Nebraska State Historical Society pursuant to resolution
of the Twenty-ninth Session of the Nebraska Leg-i'^lature.
Volume Twelve, Nebraska Stnte Historical Society Publications
■ (HnrIum^ V5t=?fTf)
)Ljlk
^a
T. E. Sedgwick, York. Nebraska
1237392
NEBRASKA STATE HISTORICAL SOCIETY
, EXECUTIVE BOARD
ELECTED MEMBERS
President — Dr. Georg-e L. Miller Omaha
1st Vice President— Robei-t Harvey. ....... St. Paul
2nd Vice President — Hon. J. E. North Columbus
Secretary — Clarence S. Paine Lincoln
Treasurer — S. L. Geisthardt Lincoln
EX-OFFICIO MEMBERS
Governor of Nebraska Hon. Georg-e L. Sheldon
Chancellor State University E. Benjamin Andrews
Head Department American History, Nebraska State
University Prof. H. W. Caldwell
President State Press Ass'n Henry C. Richmond, Fremont
OFFICE STAFF
Clarence S. Paine Secretary
Addison E. Sheldon
Director of Field Work and Legislative Reference De-
partment.
Wm. E. Hannan Assistant
E. E. Blackman . Archeologist
Minnie P. Knotts . Librarian
STATED MEETINGS
Annual meeting of the Society, Second Tuesday in January.
Meeting of the Executive Board, First Tuesday after Second
Monday in January, April, July, October.
PREKACE TO VOL. II
The first vqlunie of Nebraska Constitutional Conventions is
just from the press and laid upon the desks of the members of the
thirtieth session of the Nebraska legislature. Its reception has been
generous and funds seem assured for the completion of the series.
The prospect now is that four volumes will be required.
It has been found impracticable to send proofs to surviving
members of the convention and await their return before printing
Instead, every living member will be sent a copy of each volume, as
soon as printed, with earnest solicitation for corrections and recol-
lections suggested by its perusal. These will be gathered into notes
in the final volume.
Part of the plan for these volumes is to illustrate them with a
complete set of portraits of the members of the constitutional con-
vention. Besides these, there will be illustrations of the early
Nebraska Capitol and a few other characteristic early pictures.
These are being gathered for use in the volumes which will follow.
The band of survivors of 1871 has grown smaller while proofs
were being read. Since work began upon these volumes there have
gone from our midst James M. Woolworth, and James E. Boyd, of
Douglas county; John Wilson, of Johnson county; Alfred L. Sprague,
of feaunders county; Beach I. Hinman, of Lincoln county. The fol-
lowing is the list of the living members with their present address
Othman A. Abbott, Grand Island.
John C. Campbell, Tabor, Iowa.
John N. Cassell, Aurora.
Pelham S. Gibbs, Tekamah.
Nathan K. Griggs, Lincoln.
Edwin N. Grenell, Ft. Calhoun.
Isaac S. Hascall, Omaha.
J. A. Kenaston, East Chattanooga, Tenn.
PREFACE TO VOL. II
James Kilburn, Lincoln.
George B. Lake, Omaha.
Charles F. Mauderson, Omaha.
James E. Phil pott, Lincoln.
Charles A. Speice, Columbus.
Alexander S. Stewart, Hot Springs, S. D.
George H. Thummel, Omaha.
Edwin S. Towle, Falls City.
Eleazer Wakeley, Omaha.
It is forty years ago today since, the last conditions com-
plied with, the proclamation of President Andrew Johnson made
Nebraska one of the sisterhood of states. What memories are
stirred by the fact! Even as I write comes a delegation from the
legislative halls below to these rooms for material to draft res-
olutions commemorating the event. Four decades! Who dare
forecast Nebraska four centuries hence?
LEGISLATIVE REFERENCE ROOMS ADDISON E. SHELDON.
STATE CAPITOL
March 1, 1907.
NEBRASKA CONSTITUTIONAL
CONVtNIION
OF 187 L
VOL. II
TWENTY-SEVENTH DAY.
The Convention met at nine o'clock
and was called to order by the presi-
dent.
Prayer.
Prayer was offered by the chaplain,
as follows:
God of all grace, permit us still to
look to thee for help, to look to thee
for deliverance from sin, teach us
that we may praise the name that
is most excellent. Bless America
with all the influences that make a
nation strong and great. Win us
from the evil, confirm us in the good,
make all our many millions one band
of loyal souls, we pray. Amen.
Reading of the Journal.
The journal of the previous day
read and approved.
Committee of the Whole.
Mr. SCOFIELD. Mr. President.
I move . that the convention go into
committee of the whole for the pur-
pose of considering the article re-
ported by the special committee, in
reference to public buildings.
The motion was agreed to, so the
Convention went into Committee of
the whole — Mr. Gray in the chair.
The CHAIRMAN. The secretary
will read the report.
Public Buildings.
The secretary read the report as
follows:
"The special committee to whom
was referred the report of the Stand-
ing Committee on State Institutions
and Public Buildings, together with
the several amendments proposed
thereto, respectfully report, that It
has had the subject under consider-
ation and submit the following, and
ask that it be embodied in the con-
stitution.
Sec. 1. A superintendent of
public buildings and a Land Commis-
sioner shall be elected at the first
general election provided for in this
constitution and at the general elec-
tion every two years thereafter, and
these officers together with the Secre-
tary of State, the Treasurer and the
Attorney General shall have the su-
pervision and control of all the pub-
STATE LAND COMMISSIONER
Wednesday]
MAXWELL-HASCALL-SPRAGUE
[July 26
lie buildings, institutions, grounds
and lands of the state subject to such
rules and regulations as may be
prescribed by law. And your com-
mittee further recommends that the
same be mad-^ a part of the Article
on executive.'*
Mr. SCOFIELD. Mr. Chairman.
I move the adoption of the first sec-
tion.
Mr. MAXWELL. Mr. Chairman.
It seems to me the duties ought to
be prescribed if a superintendent of
public buildings is elected, we had
better give him the entire charge of
the public buildings. I propose an
amendment to that effect.
Mr. HASCALL. Mr. Chairman.
The section as presented is objection-
able. You are to create two new of-
ficers and confer upon them no
more duties to perform than are con-
ferred upon the remainder of the
board acting jointly with them.
There should be gome provision that
would allow duties to be conferred
upon these two officers additional to
the duties to be performed by the
board itself. It says, true, that they
shall have control subject to regula-
tions to be made by law; these regu-
lations to be made by law applies to
the whole board collectively. It seems
to me the correct way would be that
we should create two officers, then
leave it to the legislature to confer up-
on these officers such duties as they
may see fit, and at the same time
make other members of the board
to act in conjunction with these
other ofTlcers that are part of the
state officials.
Mr. SPRAGUE. I do not propose
to occupy much time but I must say,
for one, that 1 am decidedly opposed
to mixing up our school matters with
the other officers of state. I think
it is sufficiently important to have a
set of officers for itself. Experience
has proven, that if you pile upon the
other officers of the state the busi-
ness of looking after the educational
interests of the state they will be
neglected.
Now, sir, for one, I believe that the
educational interests of the state
should be fostered and have officers
to have the matter in charge who
are peculiarly adapted for that pur-
pose. I am opposed to mixing up
this with other interests of the state.
I much prefer the provision which
was adopted in the consideration of
the report of the committee on edu-
cation, that we leave it to the state
superintendent and state officers as
may be placed on that board. There
is another reason why I op.pose this
report. It is that this state land
commissioner is to have these duties
imposed upon him. Now, if he at-
tend to the land business alone, he
will have all he can do. Hence, I am
opposed to putting on him the bur-
den of looking after state buildings,
and I think that department should
be kept entirely separate from the
other, and for these reasons I shall
oppose the report made by the com-
mittee.
Mr. WOOLWORTH. As a mem-
ber of the select committee to which
this matter was referred, I feel a de-
sire to say a few words. I think
when the report as made, comes to
be understood by the convention, the
difficulties which have been suggested
by the gentleman from Cass and the
STATE LAND COMMISSIONER
Wednesday]
WOOLWORTH
[July 26
gentleman from Saunders, and per-
haps the gentleman from Douglas
will appear to be obviated. And I
will say at the outset, that the ob-
jection made by the gentleman from
Saunders does not exist at all; be-
c^urc It is not proposed that either
the board, that is provided for in this
report, or either one of the oflBcers
vviio are lo be created by the report
we have sent in shall have the charge
-of the educational interests of the
.state, so far as the management of
the schools are concerned. Now,
there were a great many conflicting
views in the committee when we set
out together to settle upon this plan.
But upon one matter there was no
disagreement: there was no disagree-
ment that there ought to be one
"board, or set of oflicers or officer, as
the convention should finally decide
upon, who should have charge of
schools as institutions of public in-
struction: and that there should be
another board or set of oflacers or
officer, as the convention should fi-
nally agree upon, who should have
charge of the school lands as well
as the other public lands: and that
these two boards or sets of officers or
officer should be entirely separate
and distinct. , On that subject, I say,
there was no disagreement in the
committee. Now, as I understand
the gentleman from Saunders, he
objects to the report because it
brings under the board that is pro-
posed to be created by the proposed
article, the care and management of
the schools as institutions of instruc-
tion. That is not designed at all. So
far as, — and I will say by waj' of
passing, what my view now is al-
though I have had some difficulty in
reaching a conclusion, I am in favor
of incorporating an article that shall
provide that there should be a board
of education, to be composed of tie
superintendent of public instruction,
as its presiding officer, and five, sev-
en or more gentlemen selected from
the state at large; and provide in the
constitution that those gentlemen
shall render their service without
any compensation whatever, except
simply their necessary, actual expen-
ses, and I think the convention has
agreed, measurably at any rate, to
leave this matter to the legislature.
I should prefer to have that provis-
ion incorporated in the constitution.
That is not, however, the matter be-
fore us now. I merely wished to
state my views to show that this re-
port of this committee is not open to
the objections urged by the gentle-
man from Saunders.
Now, sir, it was among other-
things that were considerably debat-
ed in this committee, pretty well
agreed and understood that there
should be one officer, whose sole and
exclusive duty it should be to take
care of the lands of the state. We
disagreed at first, with reference to
putting in his charge all the lands of
the state: that is the lands given for
i public improvement in the state,
such as penitentiary and university:
and at the same time the lands in the
IGth and 3Gth sections. But we
agreed that there ought to be one
man who should have charge of all
the lands of the state. Then the
question was whether this officer
should be left altogether free to man-
age these public lands without super-
10
STATE LAND COMMISSIONER
Wednesday]
WOOLWORTH
[July 26
vision by any other oflacers, or some
other ofiicers to be associated with
him, to have some general care of
the matter along with him. And it
was finally agreed fn the committee
that it was better to select one man
and elect him by name, as a land
commissioner, or agent, or whatever
you may please to call him; one of-
ficer who should be selected and
named to have charge of all these
lands; and that there should be as-
sociated with him the state officers
who would measurably, be charged
with these landed interests. So that
one man would not have this im-
mense domain in his charge to man-
age, dispose of, or account for, with-
out having someone to look after him.
And I think that answers the objec-
tion of my colleague from Douglas.
And I think it shows that the plan
adopted by the committee in respect
to these officers is a fair, and just
and practical one. And right here
let me say that I do not think that
the objection of the gentleman from
Cass is well founded — that these du-
ties of these different officers, and
of the board, should be distinctly laid
dpwn in the constitution. I certainly
do not think it possible to do it,
with all the precautions and checks,
and care that it would be necessary
to explain. I can say to the gentle-
man from Cass that had he been in
that committee and listened to that
discussion, which was greatly pro-
tracted, he would have seen that it
was impossible, in the constitution,
to advance any plan of organization
that should go at all into detail. The
committee thought it was better, in
fact, they thought that the only way
that could be done was to trust the
details to the legislature.
Now this is all I think it is neces-
sary to say with reference to the land
commissioner and the board. There
was much debate and doubt as to the
creation of an officer who should be
called the Superintendent of Public
Buildings. At one time the commit-
tee agreed among themselves to
trust this matter to the state officers;
but upon more mature reflectipn they
thought it was better to create him
and surround him by the same
guards, and leave the prescription of
his duties and the duties of the
board created by this proposed ar-
ticle to the legislature. So I need not
go over that matter.
Now, as to the necessity for this
officer. We are to remember that,
first there are to be erected very-
considerable public buildings in the
state — a penitentiary, and the dif-
ferent benevolent asylums of the
state; the deaf and dumb asylum,
the insane asylum, and so on. This
building might be called the blind
asylum, but I refer now to the asy-
lum for the blind (laughter). Here
are these buildings to be erected in
the first place, and then they are to
be looked after. The matter of re-
:-dirs, the matter of insurance, the
matter of prevention of fires, by
proper precautions — all these mat-
ters ought to be in the charge of
some person who will be held ac-
countable for them. So the commit-
tee thought, on the whole, it was bet-
ter to create this officer, and put him,
as land commissioner, under the gen-
eral direction of this board and let
the legislature prescribe the duties.
HASCALL'S AMENDMENT
11
Wednesday]
HASCALL— ESTABROOK
[July 26
both of the board ^nd this oflacer. I
am glad to say that no member of the
committee came with any pre-con-
ceived ideas which he was determin-
ed to crowd through, but all seemed
willing to advise with the others,
and the committee are prepared to
accept any amendments which would
improve it; but the committee reach-
ed, at last, the conclusion that this
report, as presented, was about the
best thing they could do. They agreed
however, that it would be desirable,
if the convention saw fit to provide
that these two officers, or one, if only
one is provided for, should be incor-
porated with the state officers, should
give bonds and be subject to the
same responsibilities as the state of-
ficers. The salary should be fixed
and then the article should state this
should be the only officer having to
do with this matter.
Mr. HASCALL. Mr. Chairman. It
is not to the whole section I object.
It is because I think the section is
not enough to carry out the full idea,
I have prepared an amendment which
I would have added to the end of the
section.
The section as drawn, as I under-
stand it, aims at the joint action of
these two officers in connection with
jothers as I understand it, the land
commissioner should have an office
and perform duties independent of
this board. Here is my amendment:
The superintendent of public
buildings, and the land commissioner
'shall each perform such duties ad-
ditional to the duties above described
as shall be provided by law.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas (Mr, Has-
call.)
Mr. ESTABROOK. Mr. Chairman.
The provision in the section as re-
ported provides that all these officers
shall perform these duties. It seems
to me this covers the whole ground.
The CHAIRMAN. If the gentle-
man will wait, I will read a portion
of the section, together with the
amendment of the gentleman from
Douglas (Mr. Hascall.)
A superintendent of public build-
ings and a land commissioner shall
be elected at the first general elec-
tion provided for in this constitution
and at the general election every
two years thereafter, and the secretary
of state, the treasurer and the attor-
ney general, shall have the supervis-
ion and control of all the public
buildings, institutions, grounds and
lands of the state, subject to such
rul-^s and regulations as may be pre-
scribed by law.
The ammendment adds: "The su-
nerintendent of public buildings and
the land commissioner shall each
perform such duties additional to the
duties above prescribed, such duties
as shall be prescribed by law."
Mr. ESTABROOK. It seems to me
that the amendment is entirely need-
less. It is simply to provide that
each of these officers shall perform
those duties which the legislature
shall provide. It seems to me that is
sufficiently reached in the section
reported. We have here three com-
mittees whose duties require them
to consider these subjects or subjects
of like bearing, the committee on
schools, the committee on public
buildings and the committee on
lands, other than school lands.
Each of these committees has
conceived, that a board or some
part of a board was necessary to per-
12 BOARD OF PUBLIC LANDS AND BUILDINGS
Wednesday]
EST A BROOK
I July 26
form those particular duties which
they had in charge. Now when all
of these reports come to be consider-
ed before this convention, it was
thought to be of suflBcient import-
ance for the convention to order a
reconsideration by the committees
of the subject and inquire whether
all these interests had not better be
combined on one board. Now, wheth-
er this is best or not, is not for me to
say. I think it is. Then we should
consider what kind of a board is nec-
essary? I think that the board
should consist of an added member,
so that there should always be a ma-
jority to determine question^. I think
it is best it should consist of as many
as five. I presume it would not be
necessary for a greater number. It
has been suggested with a good deal
of plausibility that there should be
a board consisting, perhaps, of five
members, possibly with the superin-
tendent of public institutions at its
head, possibly the lieut. governor at
the head; one member to be elected
from each judicial district, but if all
these interests be combined, we con-
clude that about 5 is all that is need-
ed and the necessity of electing one
from each judicial district should be
done away with. It seems to me,
speaking for myself, that this fixes the
matter about right, to elect two and
then make up a board with state
officers. The board should have one
of its members to have oversight of
the lands of the state. This is the
most important interest in the state.
I presume it is a more important in-
terest even than that which will be
under the charge of the governor be-
■cause the school lands alone, will
reach the value of many millions of
dollars. Hence there should be one
ofHcer, who, from the name given
him, should be indicated as the of-
ficer who stands at the head of that
bureau, to be responsible for the
manner in which these interests were
cared for. Then too, in looking all :
around and viewing all the interests
involved it seemed to some of the
committee and finally, I think, to all
of them, that there was sufficient
demand for one officer on public
buildings and grounds. You can look
out at that window today and see the
need of such an officer now. Why
those high weeds? Why are not
these grounds kept in decent order?
Are all the public buildings insured?
Have they all got proper out houses?
Are the ashes properly taken care
of and all these guards against fire
seen to? Besides these there are a
thousand and one little things in-j
cidental to the care of the public
buildings; hence we say there should
be two officers elected outside of
the usual number of officers already
provided for. Well, what other in-
terests are involved in the work of
this board? There is a large amount
of money to be handled and it will
be necessary to have a treasurer. It
was thought by the committee that
to give the treasurer elected by the
people these duties and make him
responsible for the care of these mon-
ies would be the best plan. Another
interest to be considered, was the law
questions that should grow out of
the performance of the duties of the
board, then you need a law officer
connected with it, and hence we in-
clude the attorney general, and
MAXWELL'S SUBSTITUTE
13
Wednesday]
ESTABROOK-MAXWELL
[July 26
then you will need an oflScei* to take
charge of the records of their pro-
ceedings and we thought it should
be one who has a vault for the safe
keeping of records. Then it did seem
to me as an individual that when we
had provided for all these we had
all that was necessary to comprise
this board. It may be said that the
time may come when the commis-
sioner of lands would have no par-
ticular duties to perform, but recol-
lect he is a member of the board, and
individual advice will be taken as to
the manner of making sales and giv-
ing in all the business connected with
with the board. Now then if that
board so constituted does not fill the
bill and come up to the ideas of those
■who voted for having this matter
sent back I have to acknowledge that
I am incompetent to devise anything
that will suit. Now, as for myself,
I suggested in the report of the com-
mittee on education, I have suggest-
ed the election of a superintendent of
public instruction, you may have in
this office a man fully competent
for such office, but who is entirely
unfit to have charge of the monetary
interests of the state in any particular;
and, hence, I had no hesitation when
this board was suggested to drop this
officer and leave him in his own de-
partment. Then, too, it had been
suggested that the governor should
be a member of this board. I think
It would be bringing the executive
officer of the state down from the
dignity which properly belongs to
that officer to have him engage in all
these duties. It seems to me that to
leave him to enjoy the dignity of his
position, standing outside of any of
these boards, having general super-
vision of them all, is better. And
now to the question of duties. It
seems to me that the last clause of
this report reaches the entire neces-
sities of the case: They shall per-
form such duties as shall be prescrib-
ed by law. The designation of each
one of the board indicates the duties
they will have to perform.
Mr. MAXWELL. Now, Mr. Chair-
man, I think we are all in favor of
electing a land commissioner to take
exclusive control of the lands of the
state and I think also an officer to take
charge of public buildings. I have
prepared a substitute which I will
offer for the report of the commit-
tee; it reads as follows:
"There shall be elected at the first
election under this constitution a
land commissioner who shall have
charge and dispose of in the manner
provided by law all the lands owned
bv the state, and shall give bond to
the state in the sum of $100,000.00
and shall receive a salary of $1,800.-
00 per annum.
"There shall also be elected at the
first election under this constitution
a superintendent of public buildings
who shall have charge of all public
buildings and grounds owned by the
state and of the erection and repair
of the same in the mode provided by
law; who shall not be interested in
any contract relating to the same
and shall give bonds to the state for
the sum of $100,000.00 and shall re-
ceive a salary of $1,800.00 per an-
num.
Now, Mr. Chairman, we are pro-
posing to create new officers, and if
so why not prescribe their duties as
we do in other departments? If we
are to have a land commissioner
who is to have charge of the public
lands, why associate with him other
L4
COM. PUBLIC LANDS AND BUILDINGS
Wednesday ]
NEWSOM-LAKE
[July 26
Officers who have other duties for
which they are elected? I say elect
a man alone for these duties and give
sufficient salary to secure a compe-
ent man. Now then as to the super-
intendent of public buildings, is not
it better, Mr. Chairman, to trust this
matter in the hands of one mar.
elected for that special purpose?
there is nothing to be gained by as-
pociating with him the attorney gene-
ral, state treasurer or any other of-
ficers. I trust therefore that we will
cf ate but one officer for each of
these duties.
The CHAIRMAN. The question
is on the substitute of the gentle-
man from Cass (Mr. Maxwell.)
Mr. NEWSOM. Mr. Chairman. To
some extent I am in favor of the Idea
of the gentleman from Cass. My ob-
jection to the report of the com-
mittee is that it is a blending of au-
thority. There is no individual re-
sponsibility. This whole board is re-
sponsible for the management. I
like the substitute better, because it
makes individuals responsible, and
I think if he would add to his substi-
tute, that these officers shall consti-
tute a board which shall have a gene-
ral supervision of this matter. I
desire that the land cjmmissioner
shall be independent of all other
officers, but there must be someone
behind him to whom he shall be
responsible for the faithful discharge
of his duties.
Mr. LAKE. Mr. Chairman. I
like the substitute offered by the
gentleman from Cass (Mr. Maxwell)
better than the report of the com-
mittee. It seems to me it would be
strange to elect an officer, for in-
stance, a land commissioner, and re-
quire him to give bonds for the faith-
ful discharge of his duties, make
him answerable to the state for the
manner in which those duties are
performed, and at the same time
make him subservient to the dictation
of two or three other individuals,
who have really no interest such as
he has in the performance of those
duties. The land commissioner is
required to give bond for the sum
of $20,000 for the faithful discharge
of the duties of his office, the people
of the state generally will look to
him as the responsible person, one
who is answerable for the manner
in which duties are performed, and
still through the dictation and con-
trol of these several other officers,
his plans and desires may be injured
in every instance. I think it far. bet-
ter that some responsible person
shall be elected for the purpose of
each one of these several duties, re-
quire him to give ample bonds for the
faithful discharge of the duties which
may be devolved upon him by law,
then there will be no difficulty as to
who should be held responsible for
the way in which the duties of that
office are performed. In case of the
disagreement between these several
officers as to the transaction of any
duty, must not the board be called
together for the purpose of passing
upon every question which may
arise? Can the land commissioner
perform a single duty under this pro-
vision of the constitution without the
approbation of all the other mem-
bers of the board? Will they not
be required to act in conjunction In
COM. PUBLIC LANDS AND BUILDINGS
15
Wednesday]
LAKE-HASCALL
respect to every question which may
arise? Will it not be an unwieldy
board? It seems to me we should
find responsibility shirked from one
to another and finally no responsi-
bility anywhere. We elect a state
treasurer, who has duties to perform,
which are as burdensome, as respon-
sible, as important to the people of
the state as any duty which can be
devolved upon either one of these
new officers which it is proposed to
create, a land coimmissioner, or a
state house commissioner. If it is
not necessary to provide an advisory
hoard with respect to the duties of
treasurer, why with respect to the
land commissioner? I can see no
reason why he should be thus con-
trolled in his every action more
than the treasurer, both are acting
under the authority of law, both are
carrying out the will of the legis-
lature as expressed in legislative en-
actments. The duties of each are
-clear and distinct, and each one of
these officers individually should be
held responsible for the faithful per-
formance of those duties. It seems
to me the farthest we should go
would be to create an advisory board,
not a board of control, one which
could be called upon to advise in
respect to any matter which the leg-
islature in their judgment may see
fit to place within the range "of du-
ties of these several officers, which
may be called upon to act in conjunc-
tion with the land commissioner
or commissioner of public buildings,
but you allow the attorney general,
treasurer and auditor or a majority
of them to have an absolute control
■over another state officer, an officer
elected by the people of the state
at large, and who is required indivi-
dually to give a large bond for the
faithful performance of the duties of
the office to which he is elected. I
say it would be unjust. The indi-
vidual who gives the bond should
control the office, at least where there
is a difference of opinion, the man
who is responsible should control the
matter. I much prefer the substi-
tute to the original proposition. I
think that it will be far better m
practice than the original proposition.
I think it will be far better in prac-
tice. By the scheme which he pro-
poses there will be a head to each
of these departments, an individual
to whom the people will look in all
time for the purpose of ascertain-
ing what has been done. The per-
son to whom they can refer is a re-
sponsible person, and responsibility,
under the plan he proposes, may not
be shirked from the shoulders of one
to the shoulders of the other, render-
ing it impossible to find out who is
responsible for any action which
may be had.
Mr. HASCALL. Mr. Chairman. I
wish to answer a few remarks made
by my colleague (Mr. Estabrook)
with regard to the true meaning
of this section as reported by the
committee. In the first place they go
on and create two officers, a land com-
missioner and superintendent of pub-
lic buildings. The gentleman says,
I refer you to their names. Now I
contend there is nothing in a name,
and I have good authority for it,
we have a celebrated author who said
there was nothing In a name. Sec-
ondly, I refer to it to refute the gen-
1(J
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
HASCALL-WOOLWORTH
[July 26
tlenian's argument. It is time we call
him the land commissioner, but what
does it signify unless you confer
some duties upon him. This section
erects a constitutional barrier to con-
fer any duties upon the land com-
missioner or superintendent of public
buildings. He says they shall be
elected by the people and these offi-
cers together with the attorney gene-
ral, secretary of state and so forth
shall perform duties as prescrib-
ed by law. They have to act in con-
nection with the other officers, and
as was remarked by the gentleman
from Otoe (Mr. Newsom) it is a blen-
ded authority. The constitutional
barrier erected prohibits the legisla-
ture from conferring any duties up-
on these officers, but they may regu-
late the duties of these several of-
ficers when acting together. "Well,
we do not want any such thing as
that. I am in favor of the gentle-
man's argument as to what should
be. The gentleman goes on to say
what should be in the state, but at
the same time wheu he says that he
has erected a constitutional barrier,
which prevents the legislature from
carrying out the thing he says should
exist. Now, when the legislature
goes to work to make laws for the
land commissioner we want them to
have permission to set the land com-
missioner —
Mr. ESTABROOK. Will the gen-
tleman allow me to ask him a ques-
tion? Was not that committee sent
out to provide a board? Can you
provide a board for the management
of these things without giving them
joint control?
Mr. HASCALL. That is all right.
The substitute offered by the gentle-
man from Cass can be made avail-
able to carry out the ideas this con-
vention should adopt. It may be
made an advisory board, but you
must have separate duties to be per-
formed , by the superintendent of
public instruction and land commis-
sioner. And it is only by confer-
ing, by act of legislature, that these
officers do these duties singly, that
you carry out the object. Now, let
us see what my colleague, who has
just sat down says. He says the in-
tention of the committee was as I
stated. Well, then, if that was the
wish of the committee they made a
mistake in phraseology. Because
they tied up the legislature. The
gentleman says my amendment, if
adopted, would be the thing. Now
that is a very nice way to slick it
over with mud.
Mr. WOOLWORTH. Will the gen-
tleman allow me a word? I do not
think the committee disagrees upon
this subject at all. The repdrt of
the committee was that these of-
ficers should be incorporated in the
executive article. If you will turn
to the first section of that article you
will find it provides there that the
officers of the executive department
should perform such duties as pre-
scribed by law. The committee did
not think it necessary to insert a pro-
vision in respect to these two officers
because if their recommendation was
accepted that these two officers
should be made branches of the exe-
cutive department, then [by] this pro-
vision of the executive article, would
relate to and control them. The
COM. PUBLIC LANDS AND BUILDINGS
17
Wednesday]
HASCALL— THOMAS
[July 26
committee did not disagree with the
general views expressed by this gen-
tleman, but they thought they cover-
ed them by the provision which was
made; and I do not really see any
necessity for
Mr. HASCALL. If the gentleman
has made the explanation, he can
make his comments afterwards. My
colleague said this section, as re-
ported, contained several things. Now
I contend that it does not read the
way the gentleman indicates. We
agree fully about what should be,
but upon what the section says will
be, we differ. If there is any por-
tion of the executive article which
would carry out the idea covered by
the proposed amendment, of course I
am satisfied with regard to that.
But it would be disastrous to say
that certain things should be done
by a board.
Now, let me answer the objections
made by my colleague who has just
risen to explain. I contend that
these duties are centered in the
board, and consequently where you
confer upon a board certain duties
by a constitution, and they are to be
regulated by law, you cannot confer
those duties upon any single officer.
He says they may perform such oth-
er duties as may be prescribed by
law. But that is stated with a
qualification. I think it is right to
have a board for the general super-
intendence of affairs pertaining to
these branches, but when you attempt
through a board, and particularly
when it is composed of state officers,
when you undertake to perform all
these minute actions by this board
then, I say the whole thing is a fail-
Mr. THOMAS. Mr. Chairman. I
would be in favor of the amendment
offered by the gentleman who spoke
last, if I agreed with him upon the
law. I do not believe because this
section imposed certain duties up-
on a board that the legislature can-
not impose additional duties upon a
certain member of that board. I do
not understand that it makes it nec-
essary that they should all have
equal charge. If such was the case,
I would be in favor of the amend-
ment offered by the gentleman from
Douglas. But it seemed to the com-
mittee that the legislature had suf-
ficient authority under the section as
it now reads. The question with us
was whether we should have a single
officer to exercise the duties of land
commissioner without the control of
any other officer, and whether we
should have a commissioner of pub-
lic buildings, who should have the
supervision of the public buildings,
without any one to control. I do not
think there is anything in the section
as it now reads, that would prevent
the legislature from imposing the du-
ties upon these officers. It seems to
me they should have the superinten-
dents of these buildings under such
restrictions that the legislature may
see fit to provide. Now, is it better
that we should create the office of
land commissioner and commissioner
of public buildings and let any other
officer have any supervision or control
over them? This seems to be the in-
tention of thesubstituteoffered by the
gentleman from Cass. When this
matter was up the other day before
the committee of the whole, It seem-
18
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
THOMAS— MASON
[July 26
ed to be thought best that the duties
be imposed upon the state officers,
and we thought that was the desire of
the convention. What state officers
should we elect? We thought we
should elect certain officers, who
should have control of the details of
these matters; and that there should
be a certain board, composed of those
two officers and of certain state offi-
cers to have general supervision and
control of all those matters. It seems
to me it has been carried out. And if
I agree with the gentleman upon the
construction, I would agree that his
amendment should be adopted. But
it did not seem to say that such
would be the construction that would
be placed upon it. Now, with regard
to the requiring of bonds. That mat-
ter is left with the legislature. They
may require such bonds, and just in
such a mount, as they think proper.
The conditions of the bond would be
that they properly perform the du-
ties of their office. Suppose that
such a bond was given and the du-
ties of their office should be under
the control of this board, which has
control and supervision of other mat-
ters. Now it seems to me it would
not be wrong to require these officers
who should have supervision of these
matters to give bonds. They would
not forfeit their bonds so long as
they act under the direction of those
advisory boards. I think there is a
provision in the constitution of the
state of New York which provides
for cases similar to the one in ques-
tion, and which requires officers who
work in connection with others, as
a board to give bonds. This section
provides that the legislature may
impose certain duties upon that
board. Now if there be anything to
prevent the legislature from impos-
ing certain duties upon certain offi-
cers, it must be there is a defect in
the constitution. The gentleman
from Douglas who last spoke (Mr.
Hascall) does not differ in the slight-
est particular from the committee.
The only question is whether it is
requisite to add the amendment to
make this section full. I admit that
the substitute offered by the gentle-
man from Cass (Mr. Maxwell) is
very different. If it is the desire of
the convention that the land com-
missioner should be a separate officer
then the section proposed is defici-
ent, if it is desired that he shall act
in connection with other members of
a board, then this section secures
that end.
Mr. MASON. Mr. Chairman. It
seems to me that something like this
will accomplish the result sought:
"There shall be a land department
which shall be in charge of a general
land commissioner who shall be elect-
ed by the people whose duties and
salary shall be as prescribed by law
and whose term of office shall be
two years. There shall be elected a
superintendent of public buildings
whose duties and salary shall be as
prescribed by law and whose term of
office shall be two years. The land
commissioner and superintendent of
public buildings together with the
secretary of state, treasurer, and at-
torney general shall constitute an
advisory board for the land depart-
ment and the superintendence of
public buildings and the powers and
duties of that board shall be as pre-
scribed by law."
This it seems to me, states
clearly what the committee had
in view, but I am not In faror
COM. PUBLIC LANDS AND BUILDINGS
19
Wednesday]
MASON
[July 26
of that, altogether, and I will
briefly state my reasons. I am in
favor of striking out the whole sec-
tion and the substitute and inserting
about three lines, as follows:
"There shall be a land department,
which shall be in charge of a general
land commissioner who shall be
elected by the people and whose du-
ties and salary shall be as prescrib-
ed by law."
Now sir, why should we re-
ject the report so far as it relates to
the superintendent of public build-
ings? There is danger of creating
too many officers and the people may
think that, like the frogs in Egypt,
they will eat out their substance. I
think the public grounds and the pub-
lic matters should be in charge of
the legislature. These departments
and officers we create in the consti-
tution are constitutional depart-
ments and cannot be wiped out or
•changed at the pleasure or will of
the people. It seems to me it is not
necessary to create now this office of
superintendent of public buildings,
but we should leave it to the legis-
lature to do. Many things which
would be wise for them to do, are
very unwise for us to do. The du-
ties of these various departments
must be left somewhat to legisla-
tive control. The salary of this offi-
cer should be established by the leg-
islature for his duties decrease each
year. The first year, I have not the
slightest doubt if he does his whole
duty the pay should not be less than
$3,000; the next year it will be
less; the next less, and finally the
duties would wind up entirely.
Hence I don't agree with the substi-
tute of the gentleman from Cass (Mr.
Maxwell) because I think, for the
first year, $1,800 is too little. Per-
haps the next year it would be too
much. I would be opposed to fixing
the salary, but in order to make pro-
gress in this matter, I wish the con-
vention to determined whether we
shall have a superintendent of pub-
lic buildings or not. For my own
part, I should be opposed to create
such an officer in the constitution, I
[have learned from experience that it
is not well to create these officers
so that they cannot be wiped out.
If it should be the sense of the conven-
tion that this office of superintendent
of public buildings is to be created,
then I shall offer a substitute, but,
sir, I am not in favor individually of
a superintendent of public buildings
at this time for the reasons I have
previously suggested. I would leave
this in the hands of the legislature.
The people might elect such an of-
ficer under this provision who knew
nothing about the duties of this of-
fice, and who would be a dead weight
upon the state. I think it would be
the best plan to leave it in the hands
of the legislature to create this of-
ficer if necessary, but if we should
leave the land department in this
condition that might occur which
would greatly damage the interests
of the state, as in the past, for the
need of some person to faithfully fol-
low up this matter and for these reas-
ons I send up the substitute which I
have just read. With one word, sir,
and I am done. With a population of
from 150,000 to 175.000, with a
state badly swamped in debt, It seems
to me it is not necessary to create any
more offices than are absolutely nee-
20
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
MAXWELL-MASON
[July 2&
essary to navigate the ship of state
through the rough sea on which she
now is riding.
The CHAIRMAN. Does the gen-
tleman from Otoe (Mr. Mason)
think his proposed substitute is in
order?
Mr. MASON. I don't know, Mr.
Chairman, when it is in order I will
offer it.
The CHAIRMAN. The question is
still upon the substitute offered by
the gentleman from Cass (Mr. Max-
well.)
Mr. MAXWELL. Mr. Chairman. I
think there is sufficient reason why
we should have a land commissioner,
and the argument offered by the gen-
tleman from Otoe (Mr. Mason) sus-
tains my position. My substitute
provides for the performance of cer-
tain duties and requires the giving
of such bonds as are necessary, while
that proposed by the gentleman
from Otoe (Mr. Mason) leaves it to
the legislature to fix the amount of
the bonds. The election takes place
this fall and the person elected will
take charge of his office at the same
time of the meeting, and at that time
there would be no law requiring him
to give bond, and if the legislature
should fail to provide such a law
during their session, you will fail to
have the proper bonds given. The
gentleman complains of cheats in of-
fice and the way to guard against
this is to require the officers to give
sufficient bonds, and this is required
by the substitute I have offered here
for this report.
Mr. MASON. Let me inquire of
the gentleman if we have not provid-
ed in the executive article a general
provision that all officers shall give-
bonds for double the amount coming:
into his hands.
Mr. MAXWELL. But how are you
going to find out how much money is^
coming into his hands.?
Now as to the superintendent of
public buildings I think for the next
five years at least we will need suck
an officer. I am as much in favor of
economy as any gentleman on this-
floor, but would it be economy Mr.
Chairman to do without these of-
ficers at the present time. Their
salary will not be equal to the loss-
that we may have for the want of
these officers. It is paying a very
poor compliment to the people of this,
state to say that they will elect in-
competent officers. That argument
would hold just as good against any
other officer. Now as to trusting ta
the legislature, every man who has
been in a legislature knows the pres-
sure brought to bear on these bodies
to create new officers, here is a good
fellow out of business is the usual
argument used to get him into office
and give him a good salary. Now,
there is no such argument or in-
fluence used here, we are acting now
for the people of the state, and it
seems to me that it would be better
now for us to create these offices and
prescribe what the duties shall be.
Mr. ESTABROOK. Mr. Chairman.
I presume it will be recollected that
the reports of three committees were
kept in abeyance for the purpose of
fixing up this teport. The various
propositions are of such a character
as to set us again all afloat, and I
will not object to the motions if
BOARD PUBLIC LANDS AND BUILDINGS
21
Wednesday]
WAKELEY
[July 26
«,ny good can be accomplished, but
after listening to all the objections
I feel entirely confident that not one
objection has been urged that is ten-
able. I think the language and read-
ing of this report have not been duly
and properly observed. I undertake
to say that the legislature can pass
an enactment and limit the duties of
the treasurer of that board. It gives
them the right to regulate and con-
"trol, reconstruct and limit the pow-
ers of the board; they can declare
that the attorney general shall have
Tio other occasion with this board
than simply give advice; there is
•complete and ample power to pre-
-scribe. The suggestions that we have
an advisory board seems to me ridi-
culous. I believe in leaving it as
it is so that the legislature can de-
clare what duty each individual
member of the board shall perform.
You say that the attorney general
or treasurer are not elected for such
31 purpose. Who told you so? Our
constitution thus far simply creates
the office. Tell me what provision
■declares what duty the treasurer
«hall perform? We are simply pre-
scribing the duties of these officers
and it is not superadding anything
to their duties, because their duties
have not been prescribed. As a
member of this board the treasurer
shall perform the duty of keeping
safely the treasury; as a member of
the board shall keep safely the rec-
ord, books and accunts; and
as a member of the board the
attorney general shall have no
other connection with it than simply
^ve legal advice. It seems to me
that every single argument urged
against this board has been fully an-
swered by the terms and language
of the report itself. It says the du-
ties shall be discharged under such
rules and regulations as shall be
prescribed by law. One of the rules
is, if you please, that the treasurer
shall do nothing but simply hold the
funds. I would not make him a
member of an advisory board but
leave him to the duty that pertains
to his office, and the land commis-
sioner shall do the duties especially
pertaining to his office. What is to
be done with the funds? Supposing
you provide simply a land commis-
sioner, he sells the land and what
does he do with the funds? It is nec-
essary he shall have a treasurer, it is
necessary he shall have some law
officer with whom to advise, but says
the gentleman, that is his duty now.
Where did you learn that fact. I
propose he shall be placed in a posi-
tion, and that we shall now prescribe
and declare a portion of his duties;
as a law officer he shall act as at-
torney of the board.
Mr. WAKELEY. Mr. Chairman. I
do not propose to discuss the several
propositions that have been made.
The gentleman from Otoe (Mr. Ma-
son) in expressing his own senti-
ments upon this subject expressed
mine fully and almost exactly. I be-
lieve it is necessary that there should
be a land commissioner elected. I
think the public lands are of such
extent and value pecuniarily and the
interest connected with them so vast
that it would justify us in creating
the office of land commissioner, but I
am opposed to electing an additional
officer as a building commissioner. I
22
COM. PUBLIC LANDS AND BUILDINGS
' Wednesday]
WOOLWORTH
[July 26
think with the gentleman from Otoe,
we ought to be particularly careful
about multiplying officers. At best
we are obliged to increase the officers
of the state very considerably, we
are obliged to enlarge the judiciary,
provide for the election of four ad-
ditional judges, and are creating a
land commissioner in addition to all
these. I do not believe it necessary
to have an additional officer to per-
form the special duty of taking care
of the public buildings. I believe in
doing one of two things, either elect-
ing a state officer who shall be the
land and building commissioner and
who shall have supervision of the
public lands and buildings-, and per-
form such duties in regard to the
sale of the land and preservation of
the public buildings as the legislature
may confer upon him. I believe we
can safely do that. The business of a
constitutional convention is to pro-
vide for electing the officers, and leave
all matters of detail to the legislature
as far as possible. I think also with
the gentleman from Otoe, even the
continuance of the office of land com-
missioner ought to be left to the leg-
islature. I have drawn a section em-
bodying substantially my own ideas
on this subject which I will read.
"There shall be elected at the same
time as other ^tate officers are elected
1 land and building commissioner who
shall have general supervision of the
lands and buildings belonging to the
state: and shall perform such duties
and have such powers in respect to
the same and to the sale of the lands
as the legislature may provide. He
shall receive a salary to be .fixed by
law; and the office may be abolished
whenever the legislature shall deter-
mine, .that it has -become unneces-
sary."
i do not offer it as an amendment,
but for the purpose of arriving at a
vote in regard to the necessity of a
building commissioner. I move to
amend the substitute offered by the
gentleman from Cass (Mr. Maxwell)
by striking out all that relates to a
building commissioner.
Mr. WOOLWORTH. Mr. Chair-
man it is not my desire to say any-
thing more with reference to the mer-
its of these propositions made to the
committee. I felt as if I had dis-
charged my duty. But some views
have been presented to the commit-
tee this morning from which I am
bound to dissent, and that dissent I
beg to express in the most emphatic
manner. I am opposed unqualifiedly
and from beginning to the end to
leaving to the legislature the power
to create officers at liberty. I am
opposed to submitting this constitu-
tion to the people of this state with-
out an expressed provision limiting
the .number of officers. Now I went
over the subject the other day and I
do not think it necessary for me to
repeat what I have said. I think
what I said met the concurrence of a
very decided majority of the con-
vention, but I will say, that I am op-
posed to leaving to the legislature
the power of doing what former leg-
islatures have been doing, creating
three inspectors of state's prison,
and giving to those inspectors two
thousand dollars each per annum.
There is one thing I am opposed to,
I am opposed to repeat it in respect
tp every public institution in this
statei, so that we should have twenty
men under, the pay^ of the state, in
care of state institutnions, that I am
COM. PUBLIC LANDS AND BUILDINGS
23
Wednesday]
WOOLWORTH
[July 26
emphatically opposed to. So much
I desire to say with reference to the
remarks made by the gentleman from
Otoe, the Chief Justice of the state,
and concurred in, tacitly at least,
by my colleague, Judge Wakeley.
That proposition I shall stand by, and
contend for from first to last.
Now there are two or three plans
it is worth while for us to compare
together and see where we are com-
ing out. Shall we have a superinten-
dent of public buildings as such.
For my own part I do not care wheth-
er you create the office as a separate
office, or make the land commissioner
take charge of the public buildings.
The suggestion made by my colleague
last upon the floor, that the super-
intendent of public lands might also
be the_ superintendent of public
buildings, has many considerations
to commend it. Perhaps the duties
of the two officers are not incom-
patible and may be discharged by one
officer. Perhaps sp. Upon that sub-
ject I have no debate with anybody.
Now as to the matter of this board,
I think that the officers that are
mentioned in the proposed article
and the composition'^ of this board
are misconceived by the- committee.
Or by some of the gentlemen who
have been upon the floor; altogether
so. It is said — "prescribe the du-
ty of these officers." Well, sir, the
committee of the whole has reported
an executive article in which it has
created the office, of Governor,' of
Secretary of state, of Auditor of
Public accounts, of Treasurer, and
of Attorney General. Are the du-
ties of any of these officers prescrib-'
ed in that article? In one single one
of them? Gentlemen say "But their
duties are referred to sufficiently by
the title that is given them." Well,
is not that just as true of the land
commissioner or the superintendent
of public instruction? It seems to
me it is just as true with respect to
one officer as to the other. It is im-
possible for the constitution to go
into detail on this matter. Why, gen-
tlemen, you never can harmonize the
differences of this committee.
As was said by my colleague last
upon the floor, the business of the
constitution is to establish the offices
and let the duties and details be
regulated by the legislature. You
have done that in respect to the six
already created. Why not do so in
respect to other officers.
Now, as to the board. The ar-
ticle says that the supervision of
lands, etc., shall be under the gene-
ral supervision of this board. The
executive officer of the board; the
man that shall sell the lands, etc.,
shall be the land commissioner, but
the general matter of the care of
these lands shall be in the charge of
these state officers. That is all that
is done. That seemed to be — it cer-
tainly was — the view of the com-
mittee when it had this matter before
it the other day. And it seems to me
how to have a great many considera-
tions to commend it to our attention.
Not that I am particularly strenuous
about it; but I do not think the peo-
ple of the state, knowing how the
great body of the lands of the state
are said to have been administered
upon heretofore; I do not believe
the people of this state will be grati-
fied at all with the proposition giv-
24:
BOARD PUBLIC LANDS AND BUILDINGS
Wednesday]
WOOLWORTH
[July 26
ing the care of the great body of the
public lands into one man's hands.
A board, not to have the charge of
the details, but to have general su-
pervision of the management of the
lands, seems to be necessary; seems
to be a wise measure. Their duties,
what the general disposition shall be,
that they shall make of the lands, is
in the charge of the legislature where
it ought to be. They are directed by
the legislature — the commissioner is
directed by the legislature. They
cannot have charge of the details.
Now as to the propriety of having
certain state officers associated with
the land commissioner in the man-
agement of these matters. The pro-
priety of having the treasurer con-
nected with the land commissioner is
evident from the fact that it never
will answer at all to let the land
commissioner receive the money and
pay it to the treasurer. Why, if you
do so there is no check on the land
commissioner; and he may run riot
with the proceeds of the sales. So
there is a manifest propriety, as sug-
gested by my friend on the left to
have state officers connected. So
again in respect to the Attorney
General. Here are securities that
will be in the hands of the land com-
missioner, which must be in the
hands of some officer to enforce.
Now, here is a question whether these
securities shall be enforced in a par-
ticular case, or a certain class of ca-
ses. There is manifest propriety in
having state officers connected to-
gether to consider the matter and act
upon consultation, and act discreetly.
These are the considerations in fa-
vor of creating this board. Not a
simple advisory board, as suggested
by the gentleman from Otoe — the
board having a general supervision.
I might go on and elaborate these
views at greater length. For my-
self, while I am perfectly willing
that the office of superintendent of
public buildings shall be dispensed
with and the land commissioner
have charge also of the public build-
ings, I am in favor of retaining the
board just precisely as the commit-
tee reported, having the general
supervision and charge of these pub-
lic lands.
And then, above all things, I am
in favor of providing that the legisla-
ture shall not go on and create offi-
ces, more for tht, sake of their be-
ing occupied and the salary appor-
tioned to them being drawn by the
appointees, than to have the duties of
those offices faithfully discharged.
Agents to discharge temporary du-
ties may still be created, may upon
certain exigencies be demanded, but
offices, permanent offices, ought all to
be provided for in the constitution,
and nothing whatever left to the leg-
islature. If so it will not be five
years; it will not be one year be-
fore you will have the 20 officers
charged with the care of the state in-
stitutions spoken of the other day
by the gentleman from Lancaster.
"This army of office holders will not
only administer upon the bankrupt
estate of the people, but you will
have them squandering the public
funds altogether."
Mr. MYERS. Mr. Chairman. So
many propositions have been stated
here and so many amendments of-
fered, that an ordinary man like my-
COM PUBLIC LANDS AND BUILDINGS
25
"Wednesday
MYERS
[July 26
self can hardly see his way through
the wilderness; and if an error of
judgment is committed I am certain
lie will have sufficient excuse to ac-
quit him of blame in the premises.
Now, sir, I am opposed to the in-
crease of public oflBcers, as a republi-
can, not in a party sense. That we
should not increase those state of-
fices to such an extent as to become
a burden to the state, to eat out the
substance of the people without ren-
dering adequate return for those ser-
vices, Or for creating offices without
having duties to perform. But if
there is one question more than an-
other that requires the parental care
of the people of this state, that re-
quires their eternal vigilance, their
unsleeping attention, it is the land-
ed interests of this commonwealth —
and in none has there been more ap-
parent criminal negligence than in
this department of the public wealth.
And, now, sir, if we must create an
officer to have control of this vast
wealth that has been given to the
people of this commonwealth by the
general government; if we must have
an officer of this kind, let us have
one that will be acting on the respon-
sibilities of his office, under oath, and
under obligations such as the legis-
lature may require. Let him, and
him alone, be responsible for the dis-
charge of the duties of that office, un-
der the restraints as shall be made
by the sovereign power — the legisla-
ture.
I, for one. am not in favor of di-
viding the responsibility among a half
dozen or three individuals, but I want
one man, who has the confidence of
the people to be the custodian of all
this property. I do not want, Mr.
Chairman, any dodging of the officer
who has charge of this department,
by shifting from his shoulders the
mis-management that may occur
through the negligence of others. I
believe that the individual who has
been commissioned to a certain du-
ty shall be held to the discharge of
that duty, and if he fails to perform
his duty, let him be impeached and
removed from office. Let him have
no escape by throwing the responsi-
bility upon the shoulders of others.
I oppose, as a principle, this increas-
ing of public officers, but when there
is one required as essentially as this,
I am in favor of having him appoint-
ed, or elected by the people, if you
please, who will be responsible for
everything connected with the of-
fice. This is the custom in the man-
agement of affairs at Washington.
The Secretary of State, for instance,
is responsible for millions of dollars
worth of public property. He has no
advisory board and I would advise
that the land commissioner be made
a separate and distinct office, and
that this office be an office of record.
Let an office of record be there in
that department of the government,
so that a full and complete record of
everything connected with the state
lands may be kept, and I am sure
there will be system and a sense of
responsibility that will secure stabili-
ty and safety. This office I believe to
be necessary. It ought to have been
established originally as a part of the
state government in order that we
might have had a starting point. I
am sure that much of this public
plundering and land grabbing would
26
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
ESTABROOK— MYERS— MAXWELL,
[July 2&
not now be upon the records.
Mr. ESTABROOK. (To Mr. My-
ers) Let me ask a question.
Mr. MYERS. Certainly.
Mr. ESTABROOK. You say that
the secretary of the United States is
an independent agent. Does he not
act as one of a board — does he not
get advice from the cabinet?
Mr. MYERS. He is secretary to
the board, but he acts under the law.
The president or no one else has no
control over him. I would have the
land commissioner under the control
of nothing but the legislature. Such
an officer I would have; such an offi-
cer I believe would answer the pur-
pose better than to fritter away your
responsibility from one officer to an-
other like a homeopathic dose of
medicine scattered out over a great
deal of ground.
Mr. MAXWELL. Mr. Chairman. I
would like to say a few words about
striking out section two. I am in
favor of leaving it to the legislature
to say what offices shall be created.
I was a member of the legislature at
the time our present constitution was
provided. Many offices were not cre-
ated at the time, which have
been found necessary since. We
found after we became a state that
we must have an auditor and other
officers. These have been created
by the legislature, but if it is propos-
ed to allow the legislature to create
offices just as they see fit, there is
no use of our making a constitution
at all,, so far as these points are con-
cerned. JB it not better to create all
the offices that are absolutely neces-
sary to carry on the government of
this state, and so far as possible, pre-
scribe their duties. The gentleman
from Douglas (Mr. Estabrook) seeks
to have the attorney general made a
member of the board, because his
advice will be needed. Why. is not
that a part of his duties. I read from
the laws of 1869.
"It shall be the duty of the attor-
ney general, at the request of the
governor, the secretary of state, the
treasurer or the auditor to prosecute
any official bond, or any contract in
which the state is interested, deposit-
ed with either of them, upon a breach
thereof; and prosecute or defend
for the state all actions, civil or
criminal, relating to any matter con-
nected with either of their depart-
ments."
That is what the law now provides,
so that nothing is gained by making
him a member of the board. The ob-
jections of the gentleman from Otoe
(Mr. Mason) may be obviated by a
section like this:
"Resolved, that the legislature may
provide that the duties of superinten-
dent of public buildings shall be per-
formed by the land commissioner."
Now if there should be no duties
to perform the legislature might
provide that the land commissioner
should do. the duties of both offices.
It seems to me that if we don't pro-
vide this office, that the state will sus-
tain great loss and it seems to me
that this part, sought to be struck
out, ought to be retained. Suppose
the pay of this officer is fixed at $2,-
000 per year, In five years this would
amount to $10,000. Now the state
m^y lose twice that sum in a single
large contract. I say it is 'necessary
that there should be some one to take
charge of the duties of this office.
1 believe there are already too many
COM. PUBLIC LANDS AND BUILDINGS
27
Wednesday]
CASSELL— MYERS— BOYD
[July 26
officers of a certain kind, but this
office will abolish some of these of-
ficers. I trust that the section wiill
not be stricken out.
Mr. CASSELL. Mr. Chairman. I
will state that the committee had
the question of economy in view when
they made this report. It has been
said, and truly, that we have a great
many small offices which can be sav-
ed by the establishment of this office.
The amount of the salary should not
be made an important consideration,
as the sum can be saved by doing
away with a number of smaller offi-
ces.
The CHAIRMAN. The question is
upon the motion to strike out that
portion of the substitute which re-
lates to the superintendent of public
buildings. The substitute reads as
follows:
"There shall be elected under the
first election under this constitution,
a land commissioner, who shall have
charge and dispose of, in the man-
ner provided by law, all the lands
owned by the state', and shall give
bond to the state in the sum of $100,-
000 and shall receive a salary of
$1,800 per annum.
There shall also be elected at the
first election under this constitution,
a superintendent of public buildings,
who shall have charge of all public
buildings and grounds owned by the
state and of the erection and repair
of the same in the mode provided by
law; who shall not be interested in
any contract relating to the same,
and shall give bond to the state for
the sum of $100,000 and shall receive
•a salary of $1,800 per annum.
,, i The CHAIRMAN. The question is
■•pn- striking out that portion of the
.substitute -which relates to the su-
perintendent of public buildings.
The motion was not agreed to.
The CHAIRMAN. The question
now is upon the adoption of the sub-
stitute offered by the gentleman
from Cass (Mr. Maxwell).
Mr. MYERS, Mr. Chairman. Is
that open for amendment now?
The CHAIRMAN. I suppose it is.
Mr. MYERS. Then, Mr. Chair-
man, I move to strike out that part
relating to bonds and salaries, and
leave that for the legislature to fix,
to insert "shall give bond and receive
such salary as the legislature shall
prescribe."
The CHAIRMAN. The question is
on the amendment of the gentleman
from Douglas (Mr. Myers.)
The amendment was not agreed to.
The CHAIRMAN. The question is
now upon the adoption of the sub-
stitute offered by the gentleman from
Cass (Mr. Maxwell.)
The substitute was not adopted.
The CHAIRMAN. The question
is on the amendment of the gentle-
man from Douglas (Mr. Hascall.)
Mr. BOYD. Mr. Chairman. If
the gentleman will allow me I have
an amendment which I wish to offer
to be added to the end of the section.
The CHAIRMAN. Read the amend-
ment as follows:
"And shall receive such compensa-
tion and perform such duties and be
subject to such rules and regulations
as may be prescribed by law: Provid-
ed/, the office of land commissioner
and superintendent of public build-
ings may be abolished whenever the
legislature think them no longer nec-
essary."
Mr. HASCALL. Mr. Chairman. I
28
COM. PUBLIC LANDS AND BUILDINGS
Wednesday]
HASCALL— MAXWELL— WAKELEY
[July 86
•will accept the amendment.
Mr. MYERS. Now, Mr. Chairman,
I am opposed to the last clause of the
amendment as offered by the gen-
tleman from Douglas (Mr. Boyd) for
I want to have these offices estab-
lished by the constitution. I am
not in favor of establishing a consti-
tutional office and then placing it in
the power of the legislature to abol-
ish it whenever they please. I hope,
sir, that my friend will take that part
out of his amendment.
Mr. HASCALL. Mr. Chairman. As
it stands now, I notice that the land
commissioner and superintendent of
public buildings are not mention^^d
in the section. I would ask my col-
league to insert those names at the
beginning of the amendment.
Mr. BOYD. I will agree to that.
1 thought it was inserted before in
the section.
Mr. ROBINSON. Mr. Chairman.
There was a substitute sent up by
Judge Mason during the discussion.
I move its adoption in the place of
the whole section. I call for the
reading of the substitute.
The CHAIRMAN read the substi-
tute as follows:
"There shall be a land department
which shall be in charge of a general
land commissioner, who shall be
elected by the people for three years
and whose duties and salary shall be
prescribed by law."
Mr. NEWSOM. Mr. Chairman. I
move to strike out the words "by the
people'.'
Mr. ROBINSON,
amendment.
I accept the
The CHAIRMAN. The question is
on the adoption of the substitute
just read.
The substitute was not adopted.
The CHAIRMAN. The question now
arises on the amendment offered by
the gentleman from Douglas (Mr.
Hascall) to the original section.
The committee was divided and the
amendment was agreed to.
Mr. MAXWELL. Mr. Chairman.
I move to strike out all of the ori-
ginal report after and including the
words "together with the auditor."
The motion was not agreed to.
Mr. WAKELEY. Mr. Chairman.
For the purpose of testing the sense
of the committee as to whether there
should be elected one officer or two
I move that the section be referred to
the committee with instructions to
provide for electing only one officer
to be called Land and Building Com-
missioner.
Mr. KIRKPATRICK. Mr. Chair-
man I move the committee rise, re-
port progress, and ask leave to sit
again.
The motion was not agreed to.
The CHAIRMAN. The question is
on the motion of Mr. Wakeley.
The committee divided and the
motion was agreed to.
Mr. BOYD. Mr. Chairman. I
move that the committee rise, re-
port progress and ask leave to sit
agaii^, and recommend the re-com-
mitment of the report.
The motion was agreed to.
Report of Committee of the Whole.
Mr. GRAY. Mr. President. The
committee of the whole have had un-
der consideration the report of the
FUTURE AMENDMENTS
29
Wednesday]
RE Y NOLDS— L AKE
[July 26
special committee on the subject of
land commissioner and report the
same back with the recommendation
that the same be referred to the
special committee with instructions
to report a section providing for but
one officer to be denominated Land
and Building Commissioner.
The report was adopted nem.con.
Adjournment.
Mr. MYERS. I move we adjourn.
The motion was agreed to, so the
convention adjourned at twelve
o'clock and eight minutes.
AFTERNOON SESSION.
The convention met at two o'clock
and was called to order by the presi-
dent.
Engrossment.
Mr. REYNOLDS. Your commit-
teen beg leave to report the Bill on
Future Amendments and find it pro-
perly engrossed, and recommend it
be read a th. d time and put on its
passage.
Future Amendments.
Mr. LAKE. Mr. President. I would
like to enquire if there is not a
special order for two o'clock today.
The PRESIDENT. Yes, the Ex-
ecutive Bill. But this bill just re-
ported is on its passage. All bills on
their passage are always in order.
The Secretary read the bill on j
Future Amendments, as follows: i
ARTICLE-
Future Amendments.
Sec. 1. Any amendment or
amendments to thi-j constitution may
be proposed in the senate or house of
representatives, and if the same
shall be agreed to by a majority of
the members elected to each house,
such proposed amendment or amend-
ments shall be entered upon their
journals, with the yeas and nays ta-
ken thereon, and the secretary of
the state shall cause the same to be
published weekly for three months
immediately preceding the next
election, in at least one newspaper
in every county in which a newspa-
per shall be published; and if in the
legislature next afterwards chosen,
such proposed amendment or amend-
ments shall be agreed to by a
majority of the members elected to
each house, the secretary of state
shall cause the same again to be pub-
lished for the time, and in the man-
ner aforesaid, and such proposed
amendment or amendments, shall be
submitted to the electors of this state
for adoption or rejection, at the next
election of members of the legisla-
ture, in such manner as may be pre-
scribed by law; and if the people
shall approve and ratify such amend-
ment, or amendments, by a majority
of the qualified voters of this state
voting thereon, such amendment or
amendments shall become a part of
the constitution; provided, that If
more than one amendment be sub-
mitted, they shall be submitted in
such manner and form that the peo-
ple may vote for or against each
amendment separately and distinct-
ly.
Sec. 2. Whenever two-thirds of
the members elected to each house
of the legislature shall, by a vote
entered upon the journals thereof,
concur that a convention is necessary
to revise, alter, or amend the consti-
tution, the question shall be submit-
ted to the electors at the next general
election. If a majority voting thereon
30
EXECUTIVE DEPARTMENT
Wednesday]
WOOL WORTH— PRESIDENT
[July 36
at the election vote for a convention,
the legislature shall, at the next ses-
sion provide for a convention, and
shall in the act calling the convention
designate the day, hour and place of
its meeting, fix the pay of its mem-
bers and officers, and provide for
the payment of the same, together
with the expenses necessarily incur-
red by the convention in the perfor-
mance of its duties.
The law submitting the question
shall be published for the time, and
in the manner provided in the pre-
ceding section, as to proposed amend-
ments.
The PRESIDENT. This is the
third reading of the proposition.
It is now on its passage, and only
subject to amendments by unani-
mous consent. Secretary, call the
roll.
The vote was taken and the re-
sult was announced as follows: —
Ayes, 44; Noes
Abbott,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
Eaton,
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Mr.
Mason,
Manderson,
Maxwell,
Myers,
Neligh,
Newsom,
Philpott,
Price,
Reynolds,
ShafC,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,
President. — 44.
Absent and Not Voting.
Grenell,
Moore,
Parchin,
Parker,
Robinson,
Scofield,
Speice.
So the article was adopted.
The PRESIDENT. The question
is upon referring to the Committee
on Revision and Adjustment.
The bill was so referred.
Executive.
The PRESIDENT. The special or-
der of the hour is the Executive pro-
position.
Mr. WOOLWORTH. If, as the se-
lect committee on the state buildings,
etc., proposed, in its report, which
was under consideration this morn-
ing, the officer or officers therein
named be made branches of the ex-
ecutive department, the executive ar-
ticle will need to be somewhat modi-
fied, I would suggest that we let the
executive article await on action up-
on the other matter.
The PRESIDENT. The bill has
not been reported back and so cannot
be acted upon.
Mr. WOOLWORTH. I do not see
the necessity of engrossing until it
has been perfected by the convention.
The PRESIDENT. It was sent to
that committee by the convention.
Committee of the Whole.
Mr. WOOLWORTH. I move, Mr.
President, that the convention go in-
to the committee of the whole for
the purpose of considering the ju-
diciary article.
The motion was agreed to, and the
convention went into committee of
the whole — Mr. McCann in the chair
JUDICIAL DEPARTMENT
31
Wednesday]
LAKE— HASCALL— WAKP:LEY
[July 26
— for the consideration of the ju-
diciary article.
Judiciary.
The CHAIRMAN. Gentlemen, you
have for consideration, the article,
the report of the Judiciary Commit-
tee. I will read the first section:
Judicial Department.
Sec. I. The judicial powers of this
state shall be vested in one supreme
•court, district courts, county courts,
justices of the peace, police magis-
trates, and in such other courts in-
ferior to the district courts as may be
created by law for cities and incor-
porated towns.
The CHAIRMAN. Section one is
before the committee.
Mr. LAKE. There is one provis-
ion here that I desire to call the at-
tention of the committee to. I think
that the section should be amended.
It is provided that the judicial pow-
er "shall be vested in one supreme
court, district courts', county courts,
Justices of the peace , police magis-
trates, and in such other courts in-
ferior to the district courts." I am
inclined to the opinion that the limi-
tation should only be extended to
making them inferior to the Supreme
Court. Now it might be the desire to
create a court in the city that should
have a jurisdiction equal at least, to
that of the district courts; and if
this provision remains as it is in this
section it could not be done, and I
have heard it frequently expressed
in public that it might be necessary
for the best interests of certain
communities, hereafter, at some time,
to create a court for cities that should
have a jurisdiction, at least, equal
to that of the district courts; per-
haps not so extensive in some re-
spects but in respect to crime
that should have a jurisdiction as
great as that of the district court.
And for the purpose of testing the
sense of the committee, I move that
the words "district courts," in the
second line, be struck out, and the
words "supreme court" inserted.
Mr. HASCALL. Mr. Chairman. I
shall vote against the proposed
amendment. I like this section as re-
ported by the committee. The re-
port provides for district courts to
try not only civil, but criminal cases;
as this is the case now, our laws as
now passed, mention district courts,
now if you amend this, the laws will
have to be revised and the Supreme
Court referred to instead.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas.
Mr. WAKELEY. Mr. Chairman.
If it was intended by the law to con-
fer upon municipal courts a jurisdic-
tion equal to that of district courts.
I suggest to the Chairman of the
committee that it would be better to
change the section by saying "not
exceeding the jurisdiction of the dis-
trict courts," than to say "inferior to
the district courts." I think it would
not be proper to confine the jurisdic-
tion of any other court by reference
to the jurisdiction of the Supreme
Court. I agree with the opinion of
my colleague last up; (Mr. Hascall)
the section is right as it stands. The
section as drawn, meets my views
and I am opposed to any amendment-
32
TEEMS OF SUPREME COURT
Wednesday]
LAKE— WOOL WORTH
[July 26.
Mr. LAKE. I have no feeling on
this subject at all, I brought it to
the attention of the committee in
order that it might be considered
before the section was adopted. The
section, as reported by the committee
meets my favor, but for the purpose
of bringing the matter before the
committee which has been spoken of,
I mention it now.
The CHAIRMAN. The question is
upon the amendment.
The amendment was not agreed to.
The CHAIRMAN. The question is
upon the adoption of the section.
The first section was adopted.
The Chairman read the next sec-
tion as follows:
Sec. 2. The Supreme Court shall
consist of three judges, a majority
of whom shall be necessary to form a
quorum, or to pronounce a decision.
It shall have original jurisdiction
in cases relating to the revenue, man-
damus, quo warranto and habeas cor-
pus, and such appellate jurisdiction
as may be provided by law.
The second section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 3. At least two terms of the
Supreme Court shall be held in each
year, at the seat of government, at
such times as the legislature may
provide.
Mr. WOOLWORTH. Mr. Chair-
man. The time of holding the courts
in the different counties should be
regulated. The holding of these
courts is done very much at haphaz-
ard. I am not so familiar with the
course of doing business in the first
district as in the second district, and
any gentleman who has conducted
business in that district will agree
with me that it is the cause of great
diflaculty in doing business in the
courts of that district. Sometimes the
terms in two counties are brought
so close together that the business
in one county could not be transacted
before the business in another coun-
ty commences. I have known it to
occur that there were three courts
in session at the same time and I had
engagements in each. My engage-
ments are not so numerous as those
of other members of the bar. I shall
move the committee strike out of
this section^ the last clause, begin-
ing at the word "government." I
wish to have it fixed by the judges
of these courts instead of the legis-
lature.
Mr. LAKE. Mr. Chairman. I
agree with all the gentleman has said
in respect to the difficulties of doing
business in the courts, not only in
the second district, but throughout
the state. I believe there has been
no time, since I have had the honor
of presiding in the second district,
but there has been a law upon the
statute books requiring courts to be
held in two counties at the same
time in that district. The first law
we had after we became a state re-
quired that the fall term should he
held in the counties of Seward and
Saunders at the same time. The
last legislature had their attention
called to that fact and were asked
to fix the time of holding the terms
of court in the second district so
that there should be no clashing. A
bill was prepared, which, it was sup-
posed would fix that ,but by an
amendment which was afterwards
tacked on, the time of holding courts
ELECTION OF SUPREME COURT
33
Wednesday]
GRIGGS— MANDERSON— WEAVER
[July 26
in Seward and Butler came on the
same day, so that we have been com-
pelled to leave a large amount of
business unfinished in various coun-
ties of the districts from time to time
on account of the peculiar provisions
of the law fixing the time of the terms.
Now if there could be a remedy ap-
plied there it would secure a good re-
sult, not only to the people of the
district, but also to the people of
the entire state. The diflBculty is
that most of the counties desire to
have their courts held about the same
time of the year in a season not to
interfere with the farming interests,
and whoever shall have the fixing
of the time of holding courts, should
fix them with reference to those times
as near as possible, so as to make
them as little burden to the people
as possible. If that is left to the
legislature that would perhaps be
fixed to work as harmoniously as they
do now. I am sure they could be
no worse than they have been for the
past four years. I think the amend-
ment should prevail.
The CHAIRMAN. The question is
on the amendment by the gentleman
from Douglas.
The amendment was not agreed to.
The CHAIRMAN. The question is
on the adoption of section three.
Section three was adopted.
The Chairman read the next sec-
tion as follows:
Section 4. The judges of the
supreme court shall be elected by the
electors of the state at large, and
their terms of office shall be six
years, except at the first election, as
hereinafter provided.
Mr. GRIGGS. Mr. Chairman. I
move to strike out section four and
substitute the following:
The Chairman read the substitute
as follows:
"The state shall be divided into
three grand divisions to be denomi-
nated the Southern, Central and
Northern, until otherwise provided
by law, and there shall be elected
from each of said grand divisions
one judge of the supreme court who
shall be elected by the electors of the
state at large and whose term of office
shall be six years except at the first
election as herein provided."
Mr. GRIGGS. Mr. Chairman. I
don't wish to say anything particular
upon this motion, except that I be-
lieve that it woufd suit the people
of the state to have one of the Su-
preme judges come from each one of
these divisions.
The CHAIRMAN. The question is
on the adoption of the substitute of-
fered by the gentleman from Gage
(Mr. Griggs.)
The substitute was not adopted.
Mr. MANDERSON. Mr. Chair-
man, I move to strike out in the sec-
ond line the word "six" and insert
"nine."
The motion was not agreed to.
Mr. WEAVER. Mr. Chairman. I
move to strike out all in the first
line after the word "elected" down
to the word "six" in the second line,
and insert the word for, so that it
will read: "The judges of the su-
preme court shall be elected for six
years, except at the first election as
hereinafter provided."
Mr. MYERS. Mr. Chairman. I
move to strike out the word "six"
in the amendment and insert "flf-
34:
TERM OF SUPREME JUDGES
Wednesday J
MYKRS— WEAVER-STRICKLAND
[July 26
teen." On this I propose to say
only a few words. The judges of our
courts are set apart for the perfor-
mance of a special, distinct and more
important duty than any department
of our civil government. We ought
to elect men of ability in whom
the people have confidence and
when we secure such we should not
readily dismiss them. In the old
times, Mr. Chairman, our judges kept
their high positions for life, or dur-
ing £';ood behavior, and we had judg-
es in that day whose names are still
household words throughout our
land.
Mr. STEVENSON. Mr. Chairman.
I rise lo a point of order. What is
the question before the house?
The 'CHAIRMAN. The question is
on the amendment offered by the
gentleman from Douglas (Mr. My-
ers). The Chair understands the
gentleman is in order.
Mr. WEAVER. Mr. Chairman. I
rise to a point of order. The gentle-
man's amendment was to strike out
my amendment and insert "fifteen,"
My amendment had not been acted
upon. I don't see how we could
strike it out until we got it in.
Mr. MYERS. I do not desire to
proceed out of order, but desire to
state my reasons.
Mr. STRICKLAND. Mr. Chair-
man. I am opposed to the motion
my colleague, but make the motion
to strike out "six" in the section and
insert "fifteen" to give him an op-
portunity of explaining his views.
The CHAIRMAN. T'^e gentleman
from Douglas (Mr. My^ '^ has the
floor.
Mr. MYERS. It is not very ma-
terial to me in what position my
amendment stands but it is strictly
in order. Mr. Chairman. I have
formed attachments for able judges
who have ornamented the bench and
if a judge is elected by the people, and
of course they will elect judges in
whom they repose full confidence, it
is an injury to the public service that
they should be dismissed. In olden
times judges were appointed for life,
in older states for ten or fifteen
years and I do not see why we can-
not adopt the same principle in the
state of Nebraska. Let us elect the
foremost men at the bar as our
judges, set them apart from the or-
dinary pursuits of life and dedicate
them to the public service. They
become separated in their associa-
tions from the rest of their fellow
citizens. When a member of the
bar becomes thus situated and is
dismissed from the public service at
the end of six years he has to begin
life anew, his business is broken
off, his associations are gone in a
measure, and he is at sea, almost
without a rudder and compass, and
then in another point of view, we
elect a judge fresh from the bar, it
takes him six years until he becomes
habituated to the practice of the
court. It is necessary for him to
change his mode of thinking, to get
rid of hisexparte ideas he entertained
as a member of the bar. It is for
these reasons that I shall vote for the
longest time, and I venture to make
a prediction that as the state grows
older it will give the judges fifteen
years of public service. I hold that a
judge is set apart by his fellow citi-
SUPREME COURT
35
Wednesday]
KIRKPATRICK— TOWLE
[July 26
zens to serve his country as a judge,
and as a judge he must be separated
from religious and political disputes
"which agitate the country. How is
it our judges in the old states have
"become immortal, because they have
been in office and have served their
•country faithfully and well.
Mr. KIRKPATRICK. Mr. Chair-
man. I think the gentleman is mis-
taken. He claims that formerly
judges were elected for a long period,
I believe those judges who rose to
eminence were really always ap-
pointed. I think some of the judges
of the supreme . court have been
elected. I hope the amndment
"Will be voted down.
The amendment was not agreed
to.
The CHAIRMAN. The question is
on the amendment of the gentleman
from Richardson.
The committee divided and the
motion was not agreed to.
The CHAIRMAN. The question is
on the adoption of the section.
The section was agreed to.
Mr. TOWLE. Mr. Chairman. 1
liave a section which I wish inserted
between sections four and five.
The chairman read the section as
follows:
"At the first election of judges of
the supreme court, each elector may
cast as many votes for one candidate
as there are supreme judges to be
■elected, or may distribute the same
or equal parts thereof among the
candidates as he shall see fit, and
the candidates highest in votes shall
be declared elected."
Mr. HASCALL. Mr. Chairman. I
move that be postponed until we
reach the report of the committee on
electoral and representative reform. I
think it can be disposed of at that
time.
Mr. TOWLE. I will withdraw my
amendment.
The Chairman read the fifth sec-
tion as follows:
Sec. 5. The judges of the supreme
court shall, immediately after the
first election under this constitution,
be classified by lot, so that one shall
hold his office for the term of two
years, one for the term of four years
and one for the term of six years;
and at subsequent elections the term
of each of said judges shall be six
years.
The fifth section was adopted.
The Chairman read the sixth sec-
tion as follows:
Sec. G. The judge of the supreme
court having the shortest term to
serve, not holding his office by ap-
pointment, or election to fill vacancy,
shall be the chief justice and as
such shall preside at all terms of the
supreme court, and in case of his
absence the judge having in like
manner the next shortest term to
serve shall preside in his stead.
The sixth section was adopted.
The Chairman read the seventh
section, as follows:
Sec. 7. No person shall be eli-
gible to the office of judge of the
supreme court unless he shall be
at least thirty years of age, and a
citizen of the United States: nor un-
less he shall have resided in this state
at least three years next preceding
his election.
The seventh section was adopted.
The Chairman read the eighth
section as follows:
Sec. 8. The supreme court shall
appoint a reporter and clerk of said
court, who shall have their offices
36
JUDICIAL DISTRICTS OF STATE
Wednesday"
GRIGGS— HINMAN-HASC ALL
[July 26.
respectively for the term of three
years, subject to removal by the
court, and whose duties shall be pre-
scribed by law.
Mr. KIRKPATRICK. I would
suggest that there might be a better
word substituted for the word
"have."
Mr. LAKE. The word "hold" was
intended to be inserted . I suggest
that it be inserted.
The section was adopted with the
amendment.
Mr. MANDERSON. There is
nothing said about compensation for
the reporters.
Mr. WAKELEY. I would suggest
to the committee whether it would
not be better to provide that their
compensation should be prescribed
by law. I move to insert the
words "and compensation," after the
word "duties" in the second line
Mr. LAKE. That is unnecessary, I
would inform the gentleman, Mr.
Chairman, because we have a provis-
ion subsequently here which pro-
vides for the compensation of all of-
ficers not provided for in the article
itself.
Mr. WAKELEY. I will withdraw
the amendment. I see it is unneces-
sary.
The eighth section was adopted.
The Chairman read the ninth sec-
tion, as follows:
Sec. 9. The district courts shall
have original jurisdiction in all cases
of law and equity, and such appel-
late jurisdiction as is or may be pro-
vid<^d hy law.
The ninth section was adopted.
The Chairman read the tenth sec-
tion, as follows:
Sec. 10. The state shall be divid-
ed into four judicial districts, in each
of which shall be elected one judge,
who shall be judge of the district
court therein, and whose term of
office shall be four years, and un-
til otherwise provided by law said
districts shall be as follows:
Mr. GRIGGS. Mr. Chairman. I
move the adoption of that part of
the section.
The CHAIRMAN. I will read the
whole section through first:
First District — The counties of
Nemaha, Richardson, Johnson, Paw-
nee, Gage, Jefferson, Saline, Fill-
more, Clay, Franklin and all the
counties west thereof lying entirely
south of the Platte river.
Second District — Otoe, Cass, Lan-
caster, Seward, York, Polk, Hamil-
ton, Hall Buffalo, Dawson and Lin-
coln.
Third District — Douglas, Sarpy,.
Saunders and Butler.
Fourth District. — -Washington,
Dodge, Colfax, Platte, Burt, Cuming,
Stanton, Madison, Wayne, Pierce,-
Dakota, Dixon, Cedar, L'Eau-qui-
Court and the counties lying west
thereof.
Mr. HINMAN. Mr. Chairman. I
wish to offer an amendment. To
strike out the word "four," in the
first line, and insert the word "five;"
also to divide the district, as submit-
ted by me.
Mr. HASCALL. Suppose we vote
on each separate proposition first.
The CHAIRMAN. The Chair will
read the proposed amendment:
First District. — Nemaha, Richard-
son, Johnsoni, Pawnee, Gage and
Jefferson.
Second District. — Otoe, Cass, Lan-
caster, Saline, Seward, Saunders, and'
Butler.
Third District. — Douglas and Sar-
py-
JUDICIAL DISTRICTS OF STATE
37
Wednesday]
STRICKLAND— LAKE
[July 26
Fourth District. — Washington,
Dodge, Colfax, and all counties
north of the fifth standard parallel.
Fifth District. — Platte, Boone, and
all counties west of the sixth princi-
pal meridian and south of the fifth
standard parallel.
Mr. STRICKLAND, I would sug-
gest that the section had probably
be better sent back to the committee
so that the districts could be re-ar-
ranged. I would like this question
decided so that we can see what will
be done with the proposition. I call
for a division of the question.
The CHAIRMAN. The question
will be then, upon striking out the
word "four" in the first line, and in-
serting the word "five."
The Convention divided and the
motion was agreed to.
Mr. STRICKLAND. Unless the
gentleman from Lincoln, who offered
those amendments, desires to have
them considered now, I will make a
motion.
Mr. HINMAN. I would like to
hear the discussion.
Mr. LAKE. I hardly think it
would be proper to attempt to form
these districts at the present time.
The house is not quite full now, and
the question might be left until the
article has been gone through with.
It is not altogether certain yet that a
majority of this body will be for the
creation of five districts. There has
been no discussion; and, for one, I
am just as well satisfied you might
as well call for five wheels to a wag-
on as for five districts in this state.
I am informed that this matter has
been canvassed, and certain members
pledged to support it. If that is so
there is not much use of discussing
it. And we had better wait till we
get into the house. All know that
even when the business of the su-
preme court and district courts was
done by three judges that, with the
exception of perhaps the second dis-
trict, they were not overworked. And
in that district the judge has not
been overworked, although he has
not been able to do all the business.
Now, it is proposed to have four
additional judges; and it seems to me
that, as a tax payer and a member
of this convention representing the
j best interests of the people, and pro-
j viding a judiciary which shall meet
all the requirements of the business
and of their wants, that the increase
1 to four judges was ample for that
purpose. But if members of this con-
vention think otherwise, why just
let them put themselves on record.
It was discussed in the judiciary
committee at length, and we came
to a conclusion there that only four
were necessary. In regard to the
dividing of the state into districts
we are not, perhaps, required, at
this time, to arrange them satisfac-
torily. It would perhaps be better
to refer that to some committee to
arrange the districts after the num-
ber is determined upon by the con-
vention. And I move. Mr. Chairman,
that the arrangement of the districts
be deferred for the time being, and
that we proceed to the consideration
of the subsequent sections of this ar-
ticle.
Mr. WOOLWORTH. I did not vote
on the question whether there should
be four or five districts at all. I did
not know enough about the matter to
38
JUDICIAL DISTRICTS OF STATE
Wednesday]
WOOL WORTH— MASON
[July 26
reach a conclusion that was satisfac-
tory to myself, and so I left it. I
thought that when we came to con-
sider how the state should be dis-
tricted I would then hear from per-
sons from different parts of the state
as to their ideas on that matter; and
from that discussion I would hear
something that would aid me in
reaching a conclusion upon that sub-
ject; so that when I came to vote in
the convention I should vote intelli-
gently as far as I am concerned.
Now I am not content with what
my colleague upon the other side of
the house has said — that gentlemen
should place themselves upon the
record. For that matter I don't care
much for the record myself, nor how
anybody else stands upon it, I would,
however, like to hear from the gen-
tleman who are in favor of the five
districts, how they propose to redis-
trict the state. I cannot see that, in
the western part of the state, there is
really any necessity for another
judge. I am in favor of going back
to the four judges, leaving it to the
legislature to increase the number.
Mr. MASON. Mr. Chairman. I
desire to say here, that the present
time judges can do all the work in
this state, and not work to exceed
six months in the year. Now if it be
the purpose of this convention to
create a supernumerary, a judge who
is to be an ornamental instead of
useful. I have nought to do, ex-
cept to enter my protest against it.
At present, of the commencement
fees from the various districts a
large majority were received from
the second district, and the smallest
amount is received from the third
district. I may say here that the
dockets in the First district are
free; and yet the supreme court
business has been attended to and I
have not been busy more than 8
months in the year. Why if the four
districts should double in population
during the next five years, your dis-
trict judges, not having the supreme
court business to attend to, can do
it and keep the docket clean; and
I undertake to say that the business
will be better done, if it is done by
four judges instead of five, and they
should receive the pay of the five.
The judges will then be employed
most of the time, and will come to
the work with a brain trained to
work and decide points rapidly. I
must say, I was overwhelmed with
astonishment when this vote for
five district judges was announced.
I believe this is the only time I have
been on my feet this afternoon. I
am constrained to say this much un-
der great difiiculties. I must say
it is creating a supernumerary with-
out reason, and taxing the people
without cause. I undertake to say
that three judges can do all the busi-
ness of this state for the next four
years. In view of this fact, of in-
crease in the districts the commit-
tee agreed upon the fourth judge.
For these reasons, Mr. Chairman, I
shall make what battle I make in
respect to this matter against the five
judges, because I think it wrong. I
think it is against the best interests
of the state. Another thing, the leg-
islature can be given power to note
the increase of business in the differ-
ent districts, it will take the nee-
JUDICIAL DISTRICTS OF STATE
39
Wednesday]
HINM AN— MASON
[July 26
essary steps to let the fountains of
justice down upon the people,
through a greater stream. Where is
the man whose business is left un-
done in the courts, and I hold that
the judges are not employed more
than six months in the year.
Mr. HIXMAN. Mr. Chairman. The
gentlemen who live in the section of
country that is thickly populated
along the Missouri river, if they
would get out in the sparsely set-
tled country, they would, perhaps,
form a different opinion, as to
whether business is done or not. Now
let us look over the matter: Chey-
enne, Madison, Sherman, Howard,
Valley, Greeley and many other
western counties have no courts, but
are attached to other counties for
judicial and revenue purposes. There
never was a term of court in Lincoln
county that did all the business in
the county. The terms of court are
so arranged generally throughout
the state that there is only a week
allowed for each of the different
counties, and in that week, they
rush through everything, be the
amount large or small. In Lincoln
county, we had a murder case which
'was rushed through in one day and
night, and why? Because the judge
was anxious to get through the busi-
ness of the court in a week when the
case should have taken at least a
week. The witnesses were scattered
over the county, and it was impossi-
ble for the sheriff to get them to-
gether in the short time allowed him.
There are reasons why we should
have more courts; the business is
not done in our county; it is not
done in other counties; because the
judge does not see fit to call court
in our counties. These eastern judg-
es do not care much for us western
fellows. We are not down here very
often. The 2Gth district, which I
represent, includes an area of a large
portion of the state. Lines five hun-
dred miles long are drawn from east
to west and the state is divided into
three districts; and if the people have
a mind to come the entire length of
the state to have their business done,
they can, otherwise the busi-
ness is not attended to. The result
is in many in.stances we have to re-
sort to mob law in order to have any-
thing like law in our part of the
country.
Mr. Chairman, I think it is neces-
sary to have a western man who is
identified w^ith our interests, who
travels around our country and
knows something about the people.
These are my reasons for asking for
a fifth district. We are willing to
take all of that portion of the state
lying west of the sixth principal me-
ridian. We have in the western
part of the state a vast country
rapidly filling up, they have no rep-
resentative in the legislature and no
judge. If you will give us that you
may cut up your little triangular
handkerchief piece as you please. If
you refuse to graLt it we will soon
have a population there which will
speak in tones that will make you
listen.
Mr. MASON. Mr. Chairman. I
believe in giving to every part of the
state sufficient courts to attend to
their business; but when gentlemen
assume to speak for posterity I am
40
JUDICIAL DISTRICTS OF STATE
Wednesday]
ABBOTT— HINMAN
LJuly 26
inclined to think posterity will do
for itself.
Now I can speak for the dis-
trict lying south of the north line of
Otoe county, that no county commis-
sioners have ever asked for a court in
any county in that district but what
it has been had within a short time
after the publication in the paper,
and the business has been done and
dockets kept clean, the labor re-
quired not exceeding more than six-
months in the year. Now this being
the case with three districts and you
add the' fourth district, where I ask,
is the necessity of the fifth? I stand
here to say that I do know that three
judges can do the whole business of
the state and then not labor more
than six or seven moths in the year.
I am in favor of four but I am not in
favor of five districts, but I would
give to the legislature the power to
increase the number whenever they
find any judge over-worked, or any
portion of the people without a court.
Mr. ABBOTT. How long would it
take you to go from Otoe county to
Cheyenne county?
Mr. MASON. By railroad sir, I
think it would take about thirty-six
hours.
Mr. HINMAN. Mr. Chairman. I
wish to call the attention of the com-
mittee to the fact that Cheyenne
county and many other counties, and
much territory in the northwestern
portion of the state is attached no-
where for judicial purposes, it is
left out of this report entirely. In
reply to the gentleman's remarks
about the fostering care of the east,
I will tell you something about what
Lincoln county has done. They have
grappled with that monster corpo-
ration, the U. P. R. R. Co. and beat
them in a suit, and we collected the
taxes of 1869, amounting to about
$36,000.00, a portion of which is now
deposited in the bank at Omaha, to-
wit: about $23,000.00, ready for de-
positing in the state treasury when-
ever settlement is made with the
county commissioners, and the pro-
per time arrives. The R. R. Compa-
ny's attorney, Andrew J. Poppleton,
asked our county commissioners to
wait on the company for the taxes
of 1870 until July 10th. The com-
missioners feeling pretty good and
flush with money consented to wait.
What was the result of that wait-
ing?
On the sixth day of June, 1871, in
the legislature of this state a bill was
introduced by one Gerrard of Platte
county who lives 200 miles from Lin-
coln county, and 350 miles from
Cheyenne county. He introduced a
bill into the senate creating an or-
ganization in the county of Cheyenne,
giving them the right to collect and
receive taxes which had been levied
by Lincoln county for the year 1870,
to the tune of $32,000.00, out of'
$34,000.00 levied, thereby virtually ii
robbing this state of $22,000.00 and '
Lincoln county of $12,000.00 which
had become delinquent.
The U. P. railroad never will pay
Cheyenne county a dollar of that $32, -
000.00, nor do they intend to pay it.
Do you suppose they can keep that
county organized? Its officers have
to file bonds and oaths and they have
to elect officers without which they
cannot keep up their organization.
JUDICIAL DISTRICTS OF STATE
41
Wednesday'
HASCALL
IJuly 26
and I will engage that a man could
go there with a thousand dollars
and burst up the pretended organi-
zation of that county and then where
is your $32,000.00? If this man Ger-
rard had lived in Lincoln county and
•came back with that load on his
shoulders, I am afraid he would have
stretched hemp. The bill was pre-
sented the rules suspended, and it
was rushed through both houses in
one day and approved by the acting
governor. There was no one on
the floor from this county, containing
a belt of territory 300 by 400 miles,
to say anything for us and prevent
this steal. If this is all of the fos-
tering care which is to be extended
over us by the eastern portion of the
state, please to count my constitu-
ency out.
Mr. HASCALL. Mr. Chairman. I
am sorry it becomes my duty to cor-
rect the gentleman from Lincoln
(Mr. Hinman) on several matters. I
am with him on the main proposition
and believe they ought to have a
judicial district out west, still some
propositions he has presented here
are certainly erroneous and calculat-
ed to mislead the minds of gentlemen
present. In the first place the gentle-
man says that the last legislature
created the county of Cheyenne. I
I ask him when he read his statutes
last? If he will read the session
laws of 1867, he will find the county
■of Cheyenne was created at that time.
Now the facts of the case are these.
This county was attached to Lincoln
county for revenue and judicial pur-
poses, that is the reason why they
have been transacting the legal busi-
ness and levying the taxes of Cheyenne
county. I fail to see wherein Lincoln
county has any right to taxes collect-
ed in Cheyenne county. I wish to
say a word for Mr. Gerrard who is
absent. He did not deprive the
state of any of its taxes, nor deprive
Lincoln county of any rights in tax-
es to be collected, but merely ap-
portioning the money to be received
from these taxes equitably between
Cheyenne and Lincoln counties. He
talks about busting, I think it would
be just as easy to crack the Rocky
mountains as burst Cheyenne county.
This same gentleman, he speaks of,
introduced a bill into the legislature
by which Lincoln county was enabled
to pay an attorney they employed to
collect these taxes. If I recollect
right, after the law was passed there
was a little ring formed in Lincoln
county that put its hand deep
into the treasury and took out to the
tune of about $5,000. With regard
to these judicial districts, we want to
enquire in the first place is it unusu-
al or unreasonable. I am prepared
to say the proposition of five districts
is neither unusual nor unreasonable.
The state of Kansas formed a con-
stitution in 1859 which said the state
shall be divided into five judicial dis-
tricts in which judges shall be elect-
ed and hold court. Their population
at that time was less than 100,000.
Here we have, according to the cen-
sus 126,000, and gentlemen will not
deny that we have increased 40,000
since. There are important interests
in connection with Lincoln, Cheyen-
ne and other counties tliat requires
the presence of a judge in that locali-
ty, and I think the interests of the
western portion of the state demand
4^
STATK .irDICIAI. DISTKK TS
Wr<ln<>«il*>
H.\>l AlJ.
[July S6-
lhn( re hhuultl mnki' n dletrlrt out
IhtTf Wr hnvo nl IcnHt rtfty ornn-
nlwHl rounltes. and Jf you dlvld«' them
by nvp. that would make nt least
ten counties for each Judge to attend
to. A term of court should be held
In «'ach county at least once a year
and oftener If necessary. If they
do that their time Is occupied. We
are not makinK a constitution for
this present moment. It must nec-
ewMirlly be ratified this fall. The
Df^reKsltles of the state will certainly
require nil that Is claimed for these
judicial districts, we are looking
ahead to the next spring. This state
has heon very little tinderstood. and I
beli»'vp when It Is fully understood,
when wc bring all the modern ap-
pliances to bear, the western part
of the state Is going to be filled up
with the eastern part. A few^ years
ago It was thought that we required
lhre»' JudgcK to transact our business,
now the population of the settlements
west <if the sixth principal meridian
arc more important than the whole
■tatr was at the time when they
thought three judges could transact
this business. It is an advantage to
have judicial districts well defined.
Iheir limits well understood, courts
e««inli||Hhi>d within thos'' limits and
tboM- judgt'K and jourts getting in
MKtiHMfiil operation transacting biisi-
n«-HM They might be one year in ad-
Tance. kIIII I claim the state Is the
KBlner by It. Hy looking right along
Mils southern line you propose to at-
tach to Hlchnrdson. and Nemaha
rountleH. NuckoIlH, Franklin. Web-
ster and Harlan, and other counties.
And whnt do you prr>pose further?
Vou propone to attach to Otoe and
Cass counties that of Cheyenne,
which is 100 miles away. Now, in
the first district there is no railroad
to gel to distant towns, and in the
second district, if you connect by
railroads, you put the judges to great
expense to reach them, and make the
expense of litigants very great too. I
say it Is necessary to have a western
district, that the people may have a
judge residing among them and'
whom they may reach without great
expense: and that the judge may-
know the different counties in which
to hold court, when to hold it, and
hf)w to hold it. An impartial trial
is a consideration that citizens should
look well to. When we take into
consideration that a state with a
much less population than ours
adopts the five district system, and
this constitution gave power to the
legislature to increase it to as many
, more as they saw fit, and they have
since done so; showing their wisdom
in adopting it. and the necessity of
the increase. There are counties in
the north standard, such as Madison,
Pierce, Wayne and others which
'ought to have courts and it is im-
portant for their material prosperity
that they should have them. I live-
in a river town and represent a river
county, and I believe they would not
object. I do not believe that these-
new counties need any fostering. Let
them do as the older counties did"
before them.
For that reason I hope we will
adopt a fifth district system, and I
think the convention will adopt it.
At any rale, nienihers of this conven-
tion have no right to suppose the con-
vention will do otherwise. The pro-
UNION PACIFIC TAX SUIT
43
Wednesdaj-]
HASCALL— HINMAN
[July 26
position of the friends of the five
district scheme is here, and we can
build from it just as well as to refer
it to a committee. The gentleman
from Otoe, Mr. Scofield, I believe,
submitted a proposition to divide
the state into five districts, and those
counties were well grouped together.
And if that propostion is not satisfac-
tory then we can build on the one of-
fered by the gentleman from Lincoln.
Mr. Hinman. And in the fore part of
the consideration of this article it
was mentioned about establishing
courts in cities. I believe it would
be found, in practice to work bad,
and if the district court in Douglas
county is so crowded with business,
and it is necessary to have another
court then let us have another court
that can dobusiness without hav-
ing one with strange names, and
made for politicians to occupy fat po-
sitions.
Mr. KIRKPATRICK. I rise to
make a motion. I understand there
is no question before the commit-
tee —
The CHAIRMAN. There is. Up-
on the motion of the -gentleman from
Douglas to defer the formation of
the districts.
Mr. HINMAN. Mr. Chairman. I
did not intend to occupy the floor
as long as I have today during the
session of this convention; but there
are some things that need explaining,
with regard to the little ring in Lin-
coln county, spoken of by the gentle-
man from Douglas —
Mr. HASCALL- I did not allude
to the gentleman from Lincoln at
all. I believe he was outside the
ring.
Mr. HINMAN. I am not here
representing B. I. Hinman. I am
representing my constituents and de-
fending them froni foul aspersions;
and among them are the inhabitants
of Cheyenne, Buffalo, Dawson, Lin-
coln and various other counties that
need not be mentioned here. I live
in Lincoln county and I know those
officers are above reproach. Charles
McDonald has been known for years
in this state; longer, perhaps, than
the gentleman from Douglas ever
thought of being known and is a man
of known integrity and responsibili-
ty. M. C. Keith, with his partner,
is probably worth $100,000 and is a
man of integrity. M. H. Brown is
worth from $10,000 to $20,000 and
a most respectable and worthy man;
and these are the commissioners that
he accuses.
To show the plausibility of this
story about a ring let us see what
this attorney hired in the tax case
had to do. The U. P. R. R. Co., has
about 500 miles of railroad in this
state. They own equal to twenty
miles breadth of land the entire
length of the state and that through
the best and longest valley in the
state. This road extends about 700
miles beyond the state with the same
strip of land joining, or connecting
with the Central Pacific in Salt Lake
valley and is worth many millions
of dollars. She is an immense com-
pany. It was necessary for some
county to grapple with this pow-
er, and fight on this tax busi-
ness, and collect it. Lincoln coun-
ty did not wait like other counties
for some one to collect these taxes
for her, but took hold of the matter
-44
UNION PACIFIC TAX SUIT
Wednesday]
HINMAN— HASCALL,
[July 26
and sued them for the taxes. While
she was doing so, Cheyenne county,
to the west, and Dawson, Buffalo,
Hall, Merrick, Colfax, Platte and
TDodge counties on the east, and all
the counties along that line of road
with all their wealth, did not compel
the payment of taxes, but waited
tor us to do it.
Mr. GRAY. Except Dodge county.
She got her money.
Mr. HINMAN. It determined the
■ question whether Lincoln county got
$36,000 a year for years to come
and the state about $24,000 of that
..amount per year in taxes and wheth-
-er that company should or not pay
her taxes for the entire length of her
road in this state. Lincoln county
considered that her best course was
to employ an attorney that was worth
the money, and who could meet the
■company on their own terms and re-
cover the tax. How could she get
such an attorney? Could she pick
up a country pettifogger and pay him
five dollars? She employed an attor-
ney without any agreement as to fees.
When the suit was determined $5,000
was asked. There was some hesita-
tion at first unless the matter should
be followed to the supreme court by
the attorney; but relying on the hon-
or and liberality of their attorney
they paid him the amount asked. I
ask any respectable lawyer in the
state if that fee was too much, consid-
•ering the circumstances? There was
no ring about it. I will vouch for
that and I think that I am good for
the amount. I am astonished to see
the gentleman from Douglas (Mr.
Hascall) squirm, I never have intend-
'«d to cast any suspicion on any gen-
Jeman in this hall and have always
considered all members of that leg-
islature who are on this floor as per-
fectly honorable gentlemen; but I
was astonished to see him rise and
i cast aspersions at random without
knowing what he was talking about.
I am sure that I have not accused
j anyone of selling out to the U. P, R.
! R. Co. The gentleman knows
about as much about Cheyenne coun-
ty as he does of other matters of
which he has spoken and he does not
know much about either of them. He
says Cheyenne county was created,
probably before Lincoln county. I
do not know when the territory call-
ed Cheyenne county was marked out
on the maps, or embodied in the laws
of this state, but I ask him Why he
got in that little article in that law,
stating "that Cheyenne county is
hereby declared to be a duly organiz-
ed county, for judicial and revenue
purposes," and then declare that she
might go on and collect taxes levied
by another county over a year previ-
ous to that organization?
Mr. HASCALL. I did it because
the representatives of that district
said it was necessary.
Mr. HINMAN. Is that the reason?
He voted for it because the represen-
tative told him to do so. I fear that
too many of our senators voted in
that way.
Now, Mr. Chairman, about Cheyen-
ne being entitled to the taxes. This!
tax was levied in July 1870 —
The CHAIRMAN. The gentlemanj
will confine himself to the question.
Mr. HINMAN. This is in reply to
the gentleman from Otoe (Mr. Ma-
NUMBER JUDICIAL DISTRICTS
4:i>
Wednesday]
ROBINSON- LAKE
[July 26
son) concerning their protecting care
of the west and to show that there
was no ring formed in Lincoln coun-
ty and how the legislature
whilst impeaching David Butler for
$15,000 or $20,000 could reach their
long arms 360 miles and steal of
the state and Lincoln county $34,000
and that Lincoln county desired to
be excused from that fostering care.
Mr. ROBINSON. Mr. Chairman. I
want to say a word or two before this
motion is put. I am opposed to de-
ferrnig this matter. I am in favor of
five judicial districts, because three
have been found miserably deficient.
Now, sir, if three districts have an-
swered so well, why is it there is so
much complaint. Here in Lancaster,
we have had, until this year, but one
term of court. Jurors have been in
attendance, witnesses summoned and
most of the expense of having a term
of court was gone through with. It
may be different in the first judicial
district, but in the second judicial
district we certainly have cause to
complain. I undertake to say that,
in another three years, that even with
the wonderful industry and agility
of my friend from Otoe, Judge Ma-
son, one judge cannot do the business
of this district. Perhaps the gentle-
man from Otoe (Judge Mason) was
able to satisfy the people of his dis-
trict where only one term of court
per year was required but when more
terms are required we cannot get on
as we have done. I hope Mr. Chair-
man this motion will not prevail but
the mater will be fixed here and now.
If the gentlemen want to vote in the
convention, vote upon the record we
can have them.
Mr. LAKE. Mr. Chairman. The
Gentleman from Lancaster who was
just upon the floor has made certain
inquiries. I desire to answer them.
He wants to know why they have had
but one court each year in Lancaster
county. On the occasion of two
terms of court here, the members of
the bar of this county — among them
the gentleman himself — requested
me in writing that the court be not
held. The paper was also signed by
the county commissioners. The first
year court was held in this county,
but one term was provided for by
law, and that was held. Other years,
business was not properly attended
to perhaps, but it was caused by the
bad arrangement of the courts, as
provided for by the legislature. On
two occasions, adjourned terms have
been held in order to keep up with the
business, as there was only one week
allowed us to do work which requir-
ed at least two weeks. It seems to
me the responsibility should be plac-
ed where it belongs — upon the legis-
lature. Upon one occasion, the next
week after the Lancaster county
court a term was to be held in Sew-
ard county. It began on Monday and
the gentleman himself, with myself
and others was compelled to go over
to Seward on Sunday. I state right
here, that if the business of this dis-
trict had been properly arranged, it
could have been done by a single
judge. If the terms had been arrang-
ed so that when business commenc-
ed in any one county, it could have
been finished up before going to an-
other county it would have been all
right. There has never been a time
when a term of more than a week
^
46
VOLUME OF COURT BUSINESS
Wednesday]
LAKE-HINMAN
[July 36
could be held in Lancaster county;
it has always been necessary for
court to be held in some other coun-
ty the next week. It is impossible,
of course, for the judge to be at the
county seat of both counties in a sin-
gle day. The courts of Seward and
Saunders counties for 2 years past
have been filed for the same day, by
the legislature. In regard to this
postponement, I am satisfied that no
judicial district can be formed in
committee of the whole in any reas-
onable time. The different proposi-
tions that gentlemen are disposed to
make can be referred to a special
committee appointed to make this
district. When the matter can be re-
ferred again to the committee of the
whole house to consider after the
special committee makes a report.
Now, for the purpose of showing the
amount of business done by the dis-
trict of country represented by the
gentleman from Lincoln, I will refer
to a communication from the audi-
tor. The chief justice has told us he
has been able to perform all the busi-
ness of the first district without dif-
ficulty at all, only laboring about six
or seven months in the year. Now
referring to this report of the audi-
tor, I find that the number of cases
in the single county of Otoe, over
which the chief justice presides has
been five hundred and thirty eight
civil cases, in which commencement
fees have been paid. To this must
be added a great number of cases
wliere commencement fees were not
paid, and also the criminal business,
administrators sales, etc. Referring
to the district presided over by Mr.
Justice Crounse in which is the section
the gentlemen from Lincoln repre-
sents upon this floor, and we find that
the whole number of civil cases com-
menced in that entire district falls far
short of the number of cases in Otoe
county alone. They amount to only
448 cases against 538 in Otoe coun-
ty alone. Now what is the number
of cases in the region of country rep-
resented by the gentleman from Lin-
coln and Platte county 47, Lincoln
county G5, Hall county 16.
Mr. HINMAN. Will the gentle-
man allow me to state that there are
a number of criminal cases in which
there are no fees paid, and not includ-
ed in that number.
Mr. LAKE. The number is pro-
portionate with the rest of the coun-
ties of the state. I refer to these fig-
ures to show the business of these
counties. Mr. Justice Crounse has in-
formed me that he could perform all
the duties of that district in five
months. We have a law providing
for the county commissioners to re-
quest the holding of a term of court.
Justice Mason has said that he al-
ways called them in his district when
requested. I have done the same
in my district, with but one excep-
tion.
The county commissioners of these
back counties are sometimes very
ioath to ask for terms of court. This
was the case in Butler county, and
when the attorneys did prevail on the
commissioners to call a term to try
those Indians the rest of the term
was only the trial of one case, a lit-
tle civil case where seventy-five cents
was involved for ferrying a man
across the steamferry. With the en-
VOLUME OF COURT BUSINESS
47
Wednesday]
LAKE— ROBINSON— MASON
[July 26
larged jurisdiction that we propose
to give the countj- courts there will be
hut little business left them except
a few equity cases. Of course I ex-
pect in the county of Lincoln, they
ought to have their courts there held
promptly. I think they ought to be
held promptly in every county.
The business of Lancaster coun-
ty has increased very rapidly for the
past two rears and now it requires
at least two weeks for the trial of ca-
ses here. The legislature provided
that we could have only one week of
court and it is on account of this mis-
management or illmanagement by
the legislature of the terms of court,
that have deprived these counties of
the necessary times of court, but sir,
had the terms of court been arranged
as I could have arranged them or any
judge of the court would have done,
I think the business might have been
properlj- and well transacted. I have
made these remarks for the purpose
of calling the attention of the com-
mittee to some difficulties which have
arisen in the second district, and per-
haps the same has occurred n other
■districts.
Mr. ROBINSON. Mr. Chairman. I
am glad to hear from the gentleman
the fact th?-t some counties have not
had sufficient time for holding of
their courts. Now, sir, I would like
to hear what county has had suffici-
ent time allotted to it. There is not
sufficient time. I do not think
the gentleman from Douglas (Mr.
Lake) acting as judge of the district
cv)urt of the second judicial district
has ever been idle. It seems to me
he has had too much to do. I merely
wish to state a fact not for flattery as
to my signing papers I wish to make
a little explanation. I am charged
with signing a paper asking that the
term of court be adjourned. A couple
of attorneys had got into a bad pre-
dicament and brought me a paper to
sign. I refused, they came around
several times with it and finally I
i signed it but wrote under my name
I that I was opposed to the petition,
I they scratched out the note and sent
! it with my name without any re-
mark.
Mr. LAKE. I only said the gen-
tleman's name was there.
Mr. MASON. Mr. Chairman. I
I desire to add one single word. Gen-
1 tlemen of the committee will find
i this to be the fact that agricultural
I districts furnish but very little busi-
ness, very little litigation. For in-
stance, the county represented by my
friend Mr. Hinman (Lincoln) with a
population of 5,000 or 6,000 inhabi-
tants, rich in agricultural resources,
had only thirty cases in a year, there
i is very little litigation and no crime
at all to speak of. Get into Douglas,
Otoe, or Lancaster counties where
commerce is transacted, there you
find litigation, and I make this re-
mark to show that these agricultuarl
districts where you have no railroads,
where there are no commercial cities,
it will be found uniformly that the
business is very small indeed. It
speaks well for this class of counties.
I There is no necessity for this fifth dis-
trict, if there was the slightest need
j for it I should certainly favor it, but
j I do not believe there is. It seems to
i me that the desire for the fifth dis-
trict comes more from the plan in
respect to the present apportionment
48
STATE JUDICIAL DISTRICTS
Wednesday]
WOOL WORTH— LAKE
[July 26-
Of the state or districting the state,
than the necessity of a fifth judge.
I may say gentlemen, that I suggest-
ed the present mode of districting.
It strikes my mind favorably as rail-
roads run through every district. I
am not particular about the man-
ner in which it is districted, but to
use a very homely phrase, I do not
desire at this present time to load
down this instrument so that it may
die a premature death, fall still-
born.
Mr. WOOLWORTH. Mr. Chair-
man. I have listened to this discus-
sion with a great deal of interest
but there are two or three matters
upon which I desire to be informed.
I think there is a great deal of truth
in what has been said by the gentle-
man from Lincoln in the discussion,
I mean remarks he made pertaining
to this question. There is a good
deal in what he says about the neces-
sity of having a district judge and
court in these counties. In Douglas
county for instance, at least one-
third of the cases upon the docket
will go out of the district court into
the county court, and a great many
criminal cases will take the same
course, and this will take place in
every other county, especially the lar-
ger counties. It sems to me the ap-
portionment made by the committee
is not altogether a wise one.
Mr. LAKE. I would like to say
for the information of my colleague,
this division of the state into districts
was for the purpose of making a re-
port. It was not altogether certain
what would be the action of the con-
vention in respect to the number of
districts.
Mr. WOOLWORTH. I would like
to ask Mr. Lake one question.
Whether he is not of the opinion that
Douglas county with the counties on
the line of the Union Pacific railroads,
numbering six or seven, could not be
made a district, and the judge of that
district be able to do the business of
that line of counties, leaving of
course Saunders and Butler counties
to the district below the Platte river.
Mr. LAKE. I would have no ob-
jection to that mode of dividing the
state and of that form of district.
I think that perhaps a very large
amount of business over that of any
other district.
Mr. WOOLWORTH. It is a coun-
try so large, such a great extent for
a judge to travel over that it takes
a great deal of time and hard work.
If part of the district were taken
off and added to the district of
Douglas and Sarpy counties the dif-
ficulty might be obviated. I desire
to say to this convention, that there
is no ditficulty so great as adjourn-
ment of courts, the hastening of busi-
ness at terms and cutting terms short
before the business is concluded.
With what has been said by the
gentleman from Lincoln, and the
feelings of gentlemen from other
counties I quite sympathise. Just
now it so happens that a great many
of my cases are in the United States
circuit courts, where the circuit judge
is obliged to cut short his term, and
I have felt recently very seriously the
inconveniences that have been ad-
verted to. They are serious matters
that the committee and the conven-
tion ought to look at with a disposi-
tion as far as possible to avoid them
COUNTY COURTS— JUDICIAL DISTRICTS
49
Wednesday]
A BBOTT— WOOL WORTH— WAKELEY
[July 26
My object has been so far as I am
personally concerned, to try and
reach a conclusion satisfactory to
myself. I cannot hope to satisfy
anybody else. I submit to the gentle-
men from the western counties,
whether county courts being provid-
ed with a large jurisdiction, so that
a good part of their own business will
be provided for, and so that the
time for district judges will be re-
lieved a good deal, whether they can-
not get along with four judges. My
mind is not altogether clear yet, al-
though it seems to me this might be
done.
Mr. ABBOTT. Is it not a want of
confidence in county courts which has
prevented their general adoption
with larger jurisdiction? And was
this court not adopted to obviate the
necessity of making five districts?
Mr. WOOLWORTH. Well, sir, the
gentleman asks a question. I an-
swer. In New York the county
court has a jurisdiction to the extent
of $4,000. In Iowa they have lately
established another court, they call a
circuit court, one considered not
quite up to the rank of a county
court. It has no equitable jurisdic-
tion at all. The district judge gene-
rally holds his court in two counties
instead of one. I do not believe
there is such a provision in those
states, and other states.
But I wish to say right here that
the proposition has been discussed
by some gentlemen of appointing
county, rSiCl having them elected in
two or three counties united togeth-
er. I think the difficulties suggested
by the gentleman from Hall would be
obviated if that course were pur-
sued. Say three counties — Hall,
and perhaps Lincoln and Dawson
counties — associated together, and
have a county judge. I really think
that county court would be a court
presided over by about as competent
and fair a man as you could get in
the district court.
Mr. ABBOTT. That was my own
suggestion; and I suggested this as a
means of obviating the difficulty. It
is only $3,000 per year.
Mr. WAKELEY. Mr. Chairman. I
dislike to delay the committee, but I
will only do so for a few moments.
The question now is, I believe, on
passing these sections for the purpose
of referring them to the judiciary
committee.
The CHAIRMAN. To defer the
consideration of dividing the dis-
tricts.
Mr. WAKELEY. Very well, sir.
Mr. Chairman. . Upon the division
which took place in the committee,
I voted in favor of the motion to
strike out four and insert five. In
doing so I did not at all intend to
commit myself to vote for five ju-
dicial districts. But it seemed to me,
at the time, to give those who favored
the five, an opportunity to propose
their divisions.
I give great consideration to the
views which have been presented by
the gentleman from Lincoln, and
others who have advocated the ne-
cessity of five judicial districts. In
looking over the territory comprising
the present third judicial district,
we find it to be a country of great
extent. It is now some 300 miles up
,50
STATE JUDICIAL DISTRICTS
Wednesday]
WAKELEY
[July 26
and down the Platte river, and 140 or
150 miles by the traveled road up
and down the Missouri river, and
even by attaching Hall, Buffalo, Daw-
son and Lincoln to a Cass and Otoe
district, as proposed by the judiciary
committee, you still leave, as consti-
tuting one district, a county almost
200 miles east and west, in an air
line fully 200 miles; fully 200 miles
by the traveled route, over 100 miles
north and south in an air line, and
more than that by the traveled route.
So that that single district, as propos-
ed to be constituted by the report of
the judiciary committee, leaves an
area of more than 20,000 square
miles; larger than many of the old
populated states of the union.
Now, sir, I see clearly that is only
a question of time when that district
must be divided. The only question,
in my mind, has been this; and I have
so stated it to gentlemen in private
conversation, that I think it ought
to be divided. But, at the same time
I think it important to keep in view
the consideration pressed with so
much force from the other side,
that we ought not to load down this
constitution, when submitted to the
people, a large array of offices with
salaries. And I do not know but that
consideration alone will decide me to
vote for the four districts. But I
thought it was right that gentlemen
from this large district should be
heard, and allowed to propose their
division. I do not see any necessity
of considering this matter. I wish
the gentlemen who proposed to di-
vide the state into five districts would
do it now, and then vote on the ques-
tion. With reference to the divisi-
on of the state into districts, I think
many gentlemen who have voted for
the five districts have different meth-
ods of division in their minds. I
think some favor a division by a
north and south line, others by an
east and west. I want to know what
it is, and when presented I will ar-
rive at the best conclusion I can as to
whether we make that particular di-
vision or adhere to four districts.
Now, supposing the division into
four districts is to be retained, I
think, with my colleague, Mr. Wool-
worth, that the division reported by '
the committee on judiciary is not the
best that could be made. I think it
would be more equal division of busi-
ness, of judicial labor and territory,
if a district was constituted running
from Douglas and Sarpy, running
up the Platte river, taking in sever-
al counties; or running up the Mis-
souri river as far as Dakota county.
But I have reason to believe that this
would not be accepted by gentlemen
wishing a division in other counties.
Of course I have no disposition to
force our own county upon any other
county. But I think that would be
more equal than the one proposed by
the committee. So far as my prac-
tice in the county of Douglas is
concerned it is a matter of in-
difference with me, or whether
I should have to practice in other
counties, as to whether those coun-
ties are in the same district or not.
Hence I would be in favor of hearing
what gentlemen have to say. I am
opposed to hurrying this. I think
gentlemen who are in favor of five
districts may as well submit their
ideas now as ever.
STATE JUDICIAL DISTRICTS
51
Wednesday]
STRICKLAND— LAKE— PHILPOTT
[July 26
Mr. STRICKLAND. I think this
proposition to defer ought to carry,
for this reason. The committee have
taken a long time to arrange these
<iOunties into four districts; and they
could rearrange them much better
and in less time. Let these four
obtain and then make a fifth. I am
in favor of the motion to re-com-
mit.'
The CHAIRMAN. There is a mo-
tion to defer the consideration of the
formation of judicial districts.
Mr. STRICKLAND. I would make
an amendment to the amendment
that when we arise we report pro-
gress and ask the convention to — -
Mr. LAKE. If any benefit can be
derived from that course of proce-
dure I have no objection. But it
seems to me the committee is bound
by its vote on the question, having
decided to have five districts, and
unless some change is made in con-
vention, after the rising of the com-
mittee-
Mr. KIRKPATRICK. Mr. Chair-
man. This discussion has taken a
very wide range. The committee of
the whole has voted to sustain the
.amendment of five districts.
The CHAIRMAN. The question is
upon referring the consideration of
this question of re-districting to the
•committee with the amendments of-
fered.
The motion was agreed to.
Mr. PHILPOTT. Mr. Chairman,
"intending to make a motion, I pre-
cede it with a few remarks. I am one
of those who believe there should be
^ judicial district in the western part
of the state. I don't yet understand
whether we mean to divide the state
into four districts so that the western
part of the state can be accomodated.
I now move to reconsider the vote
making the change from 4 districts
to 5. I voted in the affirmative. I
think it is now the sense of the com-
mittee that we have four districts
instead of five.
Mr. SPRAGUE. Mr. Chairman. It
has been decided here that a motion
to reconsider in committee is out of
order.
I Mr. ROBINSON. Mr. Chairman.
i I move that the committee rise, re-
port progress and ask leave to sit
again.
The committee divided and the mo-
tion was not agreed to.
The Chairman read the next sec-
tion, as follows:
Sec. 11. Provision may be made
J by law for the increase of the number
of judicial districts whenever two-
thirds of the members of each house
of the legislature shall concur there-
in. Such districts shall be formed
of compact territory, bounded by
county lines: and such increase shall
not vacate the office of any judge.
Mr. THOMAS. Mr. Chairman. I
desire to offer a section which may
, come in between the two sections last
j read.
! "Judges of the district court may
I hold court for each other, and shall
1 do so when required by law."
The section was adopted.
j Mr. WAKELEY. Mr. Chairman.
I desire to have added to section 11,
j after the word "increase" in the third
line, the words "or any change in the
; boundaries of the district."
52
SALARY OF SUPREME COURT
Wednesday]
BOYD— LAKE
[July 26-
Amendment agreed to by common
consent.
The Chairman read the next sec-
tion, as follows:
Sec. 12. The judges of the su-
preme courts shall each receive a
salary of three thousand dollars per
annum payable quarterly until other-
wise provided by law and after said
salaries shall be fixed by law they
shall not be diminished during the
term for which said judge shall be
respectively elected.
Mr. BOYD. Mr. Chairman. I
desire to amend by inserting after
the word "supreme" in the first line,
the words "court shall each receive
a salary of $4,000," and after the
word "and" in the same line, the
words, "the judges of the."
Mr. LAKE. Mr. Chairman. I
hope the amendment of my colleague
will not prevail. I am perfectly satis-
fied that the judges of the supreme
court ought not receive a larger sala-
ry than the judges of the district
courts. I know that in may states
they do but in this state the duties
devolved upon the judg'es of the su-
preme court, will be far less than the
duties devolved upon the judges of
the district court. Indeed, if a dis-
tinction were made, substantial jus-
tice would require, in my own opinion
that the district judges should re-
ceive the most pay. The amount of
business in the supreme court for a
number of years will be compara-
tively small. The judges cannot be
occupied more than half of their time
not to exceed that; while the judges
of the district court three of them,
would be employed much more than
one-half of their time. I can see no
justice in giving to the judges of the
supreme court any larger pay than
we provide for the judges of the dis-
trict courts. The latter will have to
travel about over the state and be
put to expense in a thousand ways
that the supreme judges are not. I
am opposed to the first part of the
amendment, that proposes to increase
the salaries to four thousand dollars.
I do not believe in increasing any sal-
ary to three thousand dollars. I be-
lieve that the salary of the governor
in the committee of the whole was
placed at four thousand but I am not
in favor of continuing that wrong
to other officers, a wrong to the peo-
ple of this state. The condition of
our state is such that the people can-
not afford to pay salaries higher than
what we find in other states. The
government which we propose to cre-
ate by this constitution will be bur-
densome enough if we keep the sal-
aries within reasonable bounds.
Why the necessity of increasing the
salaries from what has been paid
heretofore up to four thousand?
doubling them. I have heard it said
it is to make the officers honest. By
holding out a money temptation that
would satisfy the greed of dishonest
men and make them what they would
not otherwise be. Now, it may be
that this thing can be done, but I
never have heard of a man's being
made honest in that way. It may be
that the plan would be feasible, but I
do not believe that the state would
gain any benefit whatever by paying
exhorbitant salaries. I shall vote
against the amendment. - It will be
borne in mind that we are creating
several new officers, at least a much
larger number than we had under the
old constitution, and the expense of
SALARY OF SUPREME COURT
53
Wednesday]
LAKE
[July 26
the state will be trebled and quadru-
pled. If we go on in the creating of
offices and the increasing of salaries
I can predict what the result will be
I believe, I do not believe the tax
payers of this state will submit to
the imposition. You may have a con-
stitution on paper, but when you go
before the people and ask them to
adopt it, it will meet with an em-
phatic no. And I, sir, as one of the
tax paj^ers of the state enter my pro-
test against this extravagant form of
government.
You will find, Mr. Chairman, that
with three thousand dollars salary
j'ou will have the same candidates
for office, and the offices filled by
the same persons as if the salaries
were otherwise. I am not in favor
of placing the salaries so low as to
exclude any one from office who is
fit for it, nor in favor of placing it
so high that it will induce persons
to leave their business to aspire to it
on account of the pay. It should not
be such as to induce men to scramble
after the salary of the office. Sup-
pose Mr. Chairman that the salary
of the governor was raised to $6,000"
or $7,000 and that of the judges the
same: there are men within this state
who make more than that in their
vocation, so that if you fix upon any
sum that you may it would not pay
all persons who might be called upon
to fill such offices, and if you should
fix it below that I do not believe it
would exclude any one of those per-
sons from any office within the gift
of the state. Let us fix the salaries
so that they will be reasonable, so
that it will enable the person hold-
ing the office to support himself, not
in extravagance, but reasonably well,
and with such salaries you will com-
mand the best men of the state.
Who ever heard of any one refusing
to be a candidate within the last four
years because the salary was too
small? Did you hear of any person
refusing to become a candidate to
this convention because three dol-
lars a day was not enough to pay
them for being absent from their
families and business? I have lieard
gentlemen say that if we had had
sufficient salaries for certain officers
we would have saved thousands of
dollars. Can it be said that the plun-
dering referred to has been done for
support? If what is said is true they
ought to have been satisfied with
much less, for in no case could we
have made the salaries equal the
amount that has been stolen. If we
elect an honest man he will not be
rendered dishonest merely for the
reason that the salary of the office
is insufficient to support him. Not
at all. If he knows before he enters
upon the duties of the office, and
he must know it, that he cannot af-
ford to hold the office in consequence
of the small pay offered him, he will
refuse to become a candidate, and as
I before said, such a case will not
occur if we judge from the past, be-
cause it has not occurred. If a man
is dishonest he will not be satisfied
with $4,000 a year, if he was in-
clined to steal he will do it though
you m?.ke his salary $10,000 a year
for the greed of a thief is never sat-
isfied. If the gentlemen will take the
pains to figure up and ascertain
what the aggregate amount of sala-
ries will be under this constitution
54
SALARY OF SUPKEME COURT
Wednesday]
LAKE— MANDERSON-MAXWELL
[July 26
as it has been reported by the seve-
ral committees who have been charg-
ed with the different articles, they
will see that there is danger o foist-
ing upon the people such a load that
they will groan under it for years to
come, that it will be next to impos-
sible to carry. I am one of those
who believe that we ought as mem-
bers of the convention, to consider,
occasionally at least, the taxpayers
of the state. We seem thus far Mr.
Chairman, to look only to the wants
and emoluments that would accrue
to the office holders without consid-
ering for one moment where the pay
is to come from. Why, sir, it is well
know that $1,000 at the present time
is worth more than $1,500 or $2,-
000 was three or four years ago, and
now it is proposed to raise the sala-
ries of judges from $2,000 to $3,000,
that is an increase of one-third, so
that while the actual intrinsic value
of money is increasing my colleague
proposes to increase the salaries at
least one-third, I should say the com-
mittee proposes to increase the nomi-
nal value of the salaries at least one-
third, while my colleague proposes
simply to double them up. I am op-
posed to this increase of salaries.
Mr. MANDERSON. Mr. Chairman.
The argument of the gentleman from
Douglas (Mr. Lake) is so convincing
to my mind that I wish to amend the
motion of the gentleman from Doug-
las (Mr. Boyd) by striking out ',$4,-
000" and inserting "$5 000" the sal-
ary of the supreme judge, and by
striking out "$3,000" and inserting
"$4,000," the salary of district
judges.
Mr. MAXWELL. Mr. Chairman.
I think the great danger of this con-
stitution we are proposing to form is
the high salaries proposed to be
paid to the different officers. If I
was in favor of any amendment it
would be to strike out $3,000 and in-
sert $2,500. While the people of
this state are groaning under the tax-
es they are paying, while men wha
own property are almost unable ta
pay their taxes, it is sought to saddle
the people of the state with taxes
greater than we are paying now. If
we do so, this constitution will in
my opinion, be repudiated by the
people, as much as we need a consti-
tution. While establishing high sala-
ries we must remember that salaries
never decrease. I believe if we com-
mence at $2,500 we can get just as
good judges as now. I think we can
get the very same men. The argu-
ment of the gentleman is that men
cannot afford to take such positions
at such prices. How is it with mem-
bers of this convention? There are
many of them whose time is worth
more than ten dollars per day, but
they come here for three, and some
iOf them have had quite a little strife
to get here. How is that? Not be-
cause it will pay them, but because
they have a sufficient amount of
pride to say if they are elected ta
positions they will accept of them
and discharge the duties. So with
the legislatures, I think you will find
it so in any office created. I would
commence with the governor and re-
duce the salary to a fair living price.
I am in favor of $2500.
Mr. BOYD. Mr. Chairman. My
reason for offering this amendment
is, I think we ought to have the very
SALARY OF SUPKEME COURT
55
Wednesday]
BOYD— WAKELEY
[July 26
best men in the state to fill these of-
fices, and I do not think $4,000 any
too much. Reasoning the same way
as my colleague (Mr. Lake) that you
can get just as good men for $2,500
as for $4,000, you need not pay them
any salary at all. I do not think
there is a man in this state capable
of filling the position but would make
more than that amount. I propose
to vote for $4,000.
Mr. WAKELEY. Mr. Chairman. I
desire to make a few remarks upon
this subject. I will not, at this time,
discuss the question what shall be
the relative compensations of judges
of the supreme court and judges of
the district court. I address myself
simplj' to the amendment offered by
my colleague (Mr. Boyd) to increase
the salaries of judges of the supreme
court from $3,000 to $4,00a. It hap-
pens, Mr. Chairman, that I belong to
the profession from which the judges
of the supreme court and judges of
the district courts in this state must
be taken; and it may possibly be
thought that my views as to what is
a proper compensation may be in-
, fluenced somewhat by the fact of
my being a lawyer, and having been I
connected with courts for a consider-
able time. However that may be, I
do not propose that any consideration
shall prevent me from expressing to
, this committee what I really believe;
or from giving my vote for what I
believe to be a just and fair judicial
salary. There are certain rules and
criteria which must be kept in view
in deciding what is a proper and just
compensation. My colleague (Mr.
Lake) now one of the associate jus-
tices of the supreme court, has based
his argument upon the assumption
that no matter what the salary may
be, we shall get competent men to
fill these offices that we shall have
' the same men seeking election to
these places, as we will have if the
salary is increased. If that were
I true, it would be no test of what is
I an adequate salary for judges of
I these courts. It must be borne in
[mind Mr. Chairman that judges are
taken from a class of men who must
have certain, special training and ex-
! perience to qualify them for the
place. That is not the case with the
executive and administrative offices
of the state. Judges must necessa-
rily be lawyers. The article before
us requires that a judge of the su-
preme court shall be at least thirty
years of age. It contemplates, of
course, that judges of the supreme
court and district courts will be ta-
ken from the class of experienced
lawyers.
Now, sir, to acquire that experi-
ence, and become able and capable to
fill the high office of judge of the
supreme court or circuit court, I
need not argue that a lawyer must
have had much experience and long
training and study. You cannot de-
termine what is a fair compensation
for a lawyer or a judge by precisely
the same standard as that by which
you would measure the compensation
to be paid to an intelligent or experi-
enced business man for a mere busi-
ness employment. In the first place,
it takes long years of study to pre-
pare a student of the law to enter
his profession. Then it takes many
and weary years for a lawyer to ac-
quire the necessary experienc<e and
56
SALARY OF SUPREME COURT
Wednesday!
WAKELEY
[July 26
knowledge to fit him either for the
higher walks of his profession or
for a judicial place. You must keep
all this in view when you prop9se to
fix a just compensation to be award-
ed to a judge of a high court.
Then, again, from the very nature
of the office, it is required of him who
enters upon it, of him who takes the
sacred place of a judge upon the
bench, that he dis(ard all other
pursuits and abandon all other em-
ployments; he must give his whole
time and attention to his duties, and,
by the responsibility and dignity and
decency that belongs to his station
he is excluded from all the avenues
of gain and profit which are open to
other men in the employment of the
state or out of it. Then, sir, the law-
yer we should call to a place upon
the bench must break up the busi-
ness he may have been years in se-
curing. It changes all his pursuits
in life, and dedicates him to one
great and sacred purpose of admin-
istering the laws in justice and up-
rightness, keeping himself above all
fear, favor, or suspicion. We must
take all this into account.
Then, sir, when we take a man
from the profession of the law, and
place him upon the bench; break up
his business, exclude him from all
other employment giving him only a
salary which will not support him
in independence and respectability;
and, at the termination of his ser-
vice throw him back upon some other
resources, are we doing him justice?
Are we doing right? Is it fair and
honest to measure his compensation
by solving the question whether a
proposed amount will, or will not in-
duce some man to take the oflSce?
Sir, I would not inquire solely wheth-
er we will or will not be able to get
a good and capable man to accept a
judgeship for a certain sum of money.
But, when I propose to pay the man
who shall take it a fair salary, I put
the proposition upon the broad and
equitable ground that he will earn
the money and ought to have it. The
state has the benefit of his learning,
of his experience, and of his ability,
if he is capable of filling the office
with credit the state should be
willing to pay him decently and am-
ply for it all. -
Sir, it is no answer to the argu-
ment in favor of an adequate salary
that you can get a man to fill the
office for a small one. There are
men who have pursued the practice
of law who, thanks to their energy
or to their good fortune, have accu-
mulated a competence or an inde-
pendence, and are above the neces-
sity of a professional income and to
whom the amount of a judicial sala-
ry would be of little consequence.
Is it right or just that we should
give such men, so circumstanced, an
unfair advantage over their less for-
tunate brethren at the bar by fix-
ing a small salary which forbids the
one class, but not the other, from
seeking promotion in their common
profession? Suppose we were satis-
fied that the dignity of the office is
such that men could be persuaded to
fill it without pay. There may be
found men in this state who are be-
yond the need of a private income,
or of a salary, they may be willing
to fill the judicial office without re-
gard to its emoluments. Does that
SALARY OF SUPREME COURT
57
Wednesday^
WAKELEY
[July 26
prove that there should be no sala-
ry, or a nominal salary attached to
it?
In England, members of parlia-
ment have always served without
compensation. "What has been the
consequences? Seats in parliament
have been filled by men who have
had fortunes to live upon and money
to lavish for the corruption of vo-
ters. Shall we follow that precedent
in the case of our judges? It is true
that in this country, men have filled
high judicial positions, men who
have done honor to their positions
and to their age, who have received
but low and contemptible salaries,
which it was a disgrace to the state
to offer them, and possibly, the
state of Nebraska may be situated sd
as to obtain men able to fill such po-
sitions creditably without regard to
salary. But, come back to the basis
of just compensation, and say what
men fit and capable of filling these
oifices with credit to themselves and
justice to the country who will come
up to the full measure of ability and
responsibility demanded of the place
— say what such men will honestly
earn and pay them by that standard.
I know, sir, that strong appeals
are made to us not to establish an
• expensive state government. I rec-
ognize the force of that appeal. I
propose, upon this floor, to keep that
idea steadily in view. I will not vote
to create one unnecessary office. I
would not attach to any office a sala-
ry which, in my judgment, is one dol-
lar too much. And, having so acted
I propose to trust to the good sense,
and the good judgment of the peo-
:ple of this state to endorse what
we shall have done. I am not afraid
of the people. And, let me tell you
in regard to this particular office
one thing. What was it that created
in the minds of the people a sense of
the necessity of this convention? If
there was one single thing more
than an other which in the minds of
the people demanded the assembling
of this convention, it was the neces-
sity of a separate supreme court.
From one end of the state to the oth-
er; not alone among the profession,
but among all the people, there was
one universal voice that this state
had outgrown her judicial system.
And everywhere, whenever I heard
this subject mentioned, I heard this
expression — "Give us a separate su-
preme court, and provide a salary
that will bring to that office the best
men i nthe state." And I have not
heard one man, lawyer or layman,
express a different sentiment, and I
'am not afraid to go before the people
of this state and ask "Are you will-
ing to give a man who is to sit in
the judgment seat, on whose experi-
ence, ability and integrity not only
your property and your character de-
pends, but -possibly your liberty or
your life?" I tell you there will be a
response from the people that you
have done well and justly in provid-
ing a liberal salary.
Mr. Chairman. I do not care to
trouble the committee with any fur-
ther argument upon this subject. I
have expressed my sentiments and
with that I am content. I feel no
special interest in the decision mere-
ly because I am a member of the le-
gal profession, and still I know not
but it may be possible that, from
58
SALARY OF SUPREME COURT
Wednesday]
WAKELEY— WOOL WORTH
[July 26
my long connection with courts I
have imbibed a higher idea of what
is due to the position, and to the ser-
vice of an able, upright and pure
judge, than I would have if I had
been engaged in other employments
which did not bring me much in con-
tact with courts and judges. I have,
sir, an abiding reverence for an hon-
est, faithful, upright judiciary. I
have seen in other states and in this
the most vital public interests de-
pended upon the unswerving integri-
ty, the independence and the unsul-
lied purity of the judges of the land.
Over and again they have stood as a
solid bulwark against the tempora-
ry behest of the people. They have
stood up strong and resolutely
against the aggressions of power, as
well as against popular passion and
prejudices. And, over and again
they have been the only refuge of
the citizen from the usurpations of
authority. Almost without excep-
tion they have been independent and
pure. And, just as far as it is pos-
sible to do it, or aid in doing it, by
legislation, they should be lifted
above all temptation to swerve from
duty, and above all pecuniary depen-
dence.
It has happened to me as a law-
yer to appear often, and through many
years, before competent and upright
judges. For them and for their po-
sition I have a great and habitual re-
spect. And whenever as a citizen, I
have expressed an opinion, or as a
legislator, have voted upon the ques-
tion of judicial salaries, I have uni-
formly supported the policy and the
justice of paying judges liberally for
their time and their services.
The CHAIRMAN. The question i&
upon the amendnient offered by the
gentleman from Douglas (Mr. Man-
derson).
Committee Rise.
Mr. MANDERSON. Mr. Chair-
man. I move the committee rise, re-
port progress and ask leave to sit
again.
The motion was agreed to.
Mr. McCANN. Mr. President. The-
committee of the whole have had un-
der consideration the report of the-
judiciary committee and have direct-
ed me to report progress and ask
leave to sit again.
Adjournment.
Mr. LEY. Mr. President. I move-
we adjourn until this evening at 8-
o'clock.
Mr. WOOLWORTH. Mr. Presi-
dent. It may be worth while, in view
of the storm which is rising to con-
sider whether the question to be dis-
cussed this evening is of sufficient
importance for us to come together
again this evening. I am willing if
the members will only come together.
Leave of Absence.
Mr. SPRAGUE. Mr. President. I
ask leave of absence until tomorrow-
night.
Leave granted. _^
Adjournment^ — Again.
Mr. THOMAS. Mr. President. It
will be almost impossible to get a
full attendance this evening and I
move to adjourn until tomorrow-
morning at 9 o'clock.
LEGISLATIVE DEPARTMENT
59
Thursday'
MYERS
[July 27
The motion was agreed to, so the
convention (at six o'clock and twen-
ty-five minutes) adjourned.
(TWENTY-EIGHTH DAY.
Thursday, July 27, 1871.
The convention met at nine o'clock
and was called to order by the presi-
dent.
Prayer.
Prayer was offered by the chaplain
as follows:
O, Thou who art the way, the
truth, and the Life, Bestow upon us
Thy peace. Leave us not alone in
this world of danger. Enable us to
do Thy will on every field where
Truth does battle for God and man.
Forgive us our offences, and keep us
unto life everlasting. Amen.
Reading of the Journal.
The journal of the last day was
read and approved.
Reports of Committees.
Mr. MYERS. Mr. President, I ask
to make a report from the legislative
committee — a bill which they have
fixed, and I ask that 150 copies be
printed.
The following is a copy of the re-
port:
Sec. 1. The legislative authority
shall be vested in a Senate and House
of representatives.
Sec. 2. The enacting clause of all
bills shall be: "Be it enacted by
the Legislature of the State of Ne-
braska," and no law shall be enacted
except by bill. No bill shall be pass-
ed unless by the assent of a majority
of all the members elected to each
branch of the legislature, and the
question upon the final passage shall
be taken immediately upon its last
reading, and the yeas and the nays
entered upon the journal. No bill
shall embrace more than one subject,
and that shall be expressed clearly
in the title.
Sec. 3. The legislature shall pro-
vide by law for an enumeration of
the inhabitants of the state in the
year one thousand eight hundred
and seventj--five, and at the end of
every ten years thereafter; and at
their first annual session after
such enumeration, and also after
each enumeration made by the
authority of the United States,
the legislature shall apportion to
the number of inhabitants, exclud-
ing Indians not taxed, and soldiers
and officers of the United States army
and navy.
Sec. 4. The first house of repre-
sentatives under this constitution
shall consist of seventy-five members,
who shall be chosen for one year.
The first senate shall consist of twen-
ty-five members, who shall be chos-
en for two years. After the first
election, the number of senators and
members of the house of representa-
tives shall be regulated by law, but
shall never exceed one hundred rep-
resentatives and thirty-three sena-
tors.
Cec. 5. The members of the legis-
lature shall receive for their services,
at the first session after the adoption
of this constitution, a sum not exceed-
ing four dollars per day from the
commencement of the session, but
such sum shall not exceed in the ag-
gregate two hundred and forty dol-
lars lor per diem allowance, except
in proceedings for impeachment.
They shall also receive one dollar for
every ten miles they shall travel in
going to and returning from the
state capitol on the most usual route.
The speaker of the house of repre-
sentatives shall, in virtue of his office
receive an additional compensation
equal to one-third of his per diem
allowance.
60
LEGISLATIVE ARTICLE
Thursday]
[July 27
Sec. G. The legislature shall meet
in the capitol on the first Tuesday
of January in every year, unless soon-
er convened by the governor.
Sec. 7. Each house shall choose
its own officers not otherwise provid-
ed for by this constitution. Each
house shall judge of the qualifica-
tions of its members. Contested elec-
tions shall be determined by a com-
mittee, to be selected, formed and
regulated in such manner as shall
be directed by law. A majority of
each house shall constitute a quo-
rum to do business, but a less num-
"ber may adjourn from day to day,
and may be authorized by law to
compel the attendance of absent
members in such manner and under
such penalties as may be provided.
Sec. 8. No person shall be a sena-
tor who shall not have attained the
age of twenty-five years, and have
been an inhabitant of the state three
years next before his election, and
the last year thereof an inhabitant of
the district for which he shall be
chosen, unless he shall have been
absent on the public business of the
United States or of the state; and no
person elected as aforesaid shall hold
office after he shall have removed
from such district.
Sec. 9. No person being a mem-
ber of congress, or holding any judi-
cial or military office under the Unit-
ed States, shall hold a seat in the
legislature.
And if any person shall, after his
election as a member of the legisla-
ture, be elected to congress, or ap-
pointed to any office, civil or mili-
tary, under the government of the
United States, his acceptance thereo-
of shall vacate his seat.
Sec. 10. No person who shall
be convicted of the embezzlement or
defalcation of the public funds of
-this state shall ever be eligible to any
office of honor, trust or profit under,
this state; nor shall any person con-
victed of felony exercise the right
of suffrage or be eligible to office,
unless he shall have been restored to
civil rights.
Sec. 11. The legislature shall de-
termine what persons shall consti-
tute the militia of the state, and may
provide for organizing and disciplin-
ing the same in such manner as shall
be prescribed by law.
Sec. 12. The legislature may de-
clare the cases in which any office
shall be deemed vacant, and also the
manner of filling the vacancy, where
no provision is made for that pur-
pose in this constitution.
Sec. 13. The legislature shall
never grant any extra compensation
to any public officer, agent, servant,
or contractor, after the services shall
have been rendered or the contract
entered into; nor shall the compensa-
tion of any public officer be increas-
ed or diminished during his term of
office.
Sec. 14. The house of representa-
tives shall have the sole power of
impeachment, but a majority of all
members elected must concur there-
in.
All impeachments shall be tried by
the senate, and. when sitting for
that purpose, the senators shall be
upon oath or afflrm£).tion to do jus-
tice according to law and evidence.
When the governor of the state
is tried, the chief justice shall pre-
side.
No person shall be convicted with-
out the concurrence of two-thirds of
the senators elected; but judgment
in cases of impeachment shall not
extend further than to removal from
office and disqualification to hold and
enjoy any office of honor, profit or
trust under this state; but the im-
peached shall nevertheless be liable
to indictment and punishment ac-
cording to law.
No officer shall exercise his office
after he shall have been impeached
until he shall have been acquitted.
Sec. 15. The governor, secretary
of state, auditor, treasurer, judges
of the supreme and district courts,
and all other elective state officers,
shall be liable to impeachment for
any misdemeanor in office.
I
LEGISLATIVE ARTICLE
61
Thursday]
[July 27
Sec. IG. Members of the legisla-
ture, and all other officers, elective
and judicial, except such inferior
officers as may be by law exempted,
shall, before they enter on the duties
of their respective offices, take and
subscribe the following oath or af-
firmation.
"I do solemnly swear (or affirm,
as the case may be,) that I will sup-
port the constitution of the United
States, and the constitution of the
state of Nebraska, and that I will
faithfully discharge the duties of the
office of with fidelity, and accord-
ing to the best of my ability."
Sec. 17. Every bill which shall
have passed both houses shall be pre-
sented to the governor. If he ap-
prove, he shall sign it; but if he shall
not approve, he shall return it, with
his objections, to the house in which
it shall have originated, who shall
enter the objection at large upon
their journal, and proceed to re-con-
sider it. If, after such re-considera-
tion, two-thirds of that house shall
agree to pass the bill, it shall be sent,
with the objections to the other
house, by which likewise it shall be
re-considered, and if approved by
two-thirds of that house, it shall be-
come a law; but in such cases the
votes of both houses shall be deter-
mined by yeas and nays, and the
names of the persons voting for or
against the bill shall be entered on
the journals of each house respect-
ively. If any bill shall not be return-
ed by the governor within five days'
(Sunday excepted) after it shall have
been presented to him, it shall be a
law in like manner as if he had sign-
ed it, unless the legislature, by ad-
journment, prevented its return, in
which case it shall be a law unless
sent back within three days after
their next meeting.
Sec. 18. Every order, resolution
or vote to which the concurrence of
both houses may be necessary (ex-
cept on a question of adjournment)
ii shall be presented to the governor,
and before it shall take effect be ap-
proved by him. or, being disapproved,
shall be re-passed by two-thirds of
both houses, according to the rules
and limitations prescribed in case
of a bill.
Sec. 19. Any bill may originate in
either house of the legislature, ex-
cept bills appropriating money,
which shall originate only in the
house of representatives; and all bills
passed by one may be amended by
the other.
Sec. 20. The legislature shall
never sell or dispose of the salt
springs, or saline lands connected
therewith, belonging to this state,
but may authorize the purchase of
contiguous lands thereto by authori-
ty of law, as may be necessary for the
convenience and interest of the state.
Sec. 21. Each house may deter-
mine the rules of its proceedings,
punish its members for disorderly
behavior, and with the concurrence
of two-thirds expel a member but
not a second time for the same cause',
and shall have all other powers nec-
essary for a branch of the legislature
of a. free state.
Sec. 22. Each house shall keep a
journal of its proceedings, and pub-
lish them, (except such parts as may
require secrecy) and the yeas and
nays of the members on any question
shall, at the desire of any two of
them, be entered on the journal.
All votes in either house shall be
"viva voce."
The doors of each house, and com-
mittees of the whole, shall be open,
unless when the business shall be
such' as ought to be kept secret.
Neither house shall, without the
consent of the other, adjourn for
more than three days.
Sec. 2 3. For any speech or debate
in either house of the legislature the
members shall not be questioned in
any other place.
Sec. 24. The legislature shall pro-
vide by law that all stationery re-
quired for the use of the state, and
all nrinting authorized and required
02
LEGISLATIVE ARTICLE
Thursday)
[July 27
by them, to be done for the use of
the state, shall be let by contract to
the lowest bidder; but the legislature
may establish a maximum price.
No member of the legislature, or
other state officer, shall be Interested,
either directly or indirectly, in any
such contract.
Sec. 2 5. The mode of organiz-
ing the house of representatives at
the commencement of each regular
session, shall be prescribed by law.
Sec. 2G. Each bill and concurrent
resolution shall be read at large in
three different days in each house,
and the bill, and all amendments
thereto, shall be printed before the
vote is taken on the final passage.
The presiding officer of each house
shall sign, in the presence of the
house over which he presides, while
the same is in session and capable of
transacting business, all bills and
concurrent resolutions passed by the
legislature.
Sec. 2 7. The legislature shall
have no power to release or relin-
quish, in whole or in part, the in-
debtedness, liability or obligation of
any corporation or individual to this
state, or to any municipal corpora-
tion therein.
Sec. 28. Any person holding of-
fice under or by virtue of laws of this
state who, except in payment of his
salary, fees or perquisites, receives,
or consents to receive, directly or in-
directly, any thing whatever of value,
or of personal advantage, or the pro-
mise thereof, for performing or omit-
ting to perform, any official act, or
with the express or implied under-
standing that his official action or in-
action is to be in some manner or de-
gree influenced thereby, shall be
deemed guilty of felony, and on con-
viction shall be punished as the leg-
islature may provide.
Sec. 29. Any person or persons of-
fering a br?':e, if the same shall be
accepted, shall not be liable to civil
or criminal prosecution therefor.
But any person who offers or
promises such a bribe, if the same
shall be rejected by the officer to
whom it is tendered, shall be deemed
guilty of an attempt to bribe, which
is hereby declared to be a felony, and
on conviction shall be punished as
provided by this article.
Sec. 30. Any person charged with
receiving a bribe, or with offering or
promising a bribe that is rejected,
shall be permitted to testify in his
own behalf in any civil or criminal
prosecution therefor.
Sec. 31. Members of the legisla-
ture shall, in all cases except treason,
felony or breach of the peace, be
privileged from arrest, nor shall they
be subject to any civil process dur-
ing the session of the legislature,
nor for fifteen days next before the
commencement and after the termi-
nation of each session.
Sec. 32. The* legislature shall
not have power to enact laws annul-
ling the contract of any marriage In
any case where by law the courts
of the state are or hereafter may be
empowered to decree a divorce.
Sec. 33. When vacancies occur in
either house, the president of the sen-
ate or speaker of the house in which
the vacancy may occur, shall issue
writs of election to fill such vacan-
cies.
Sec. 34. All bills for raising reve-
nue shall originate in the house of
representatives, but the senate may
propose amendments, as in other
bills. No money shall be drawn
from the treasury but in conse-
quence of appropriations made by
law.
Sec. 35. The legislature shall pro-
vide by law for the suppression of
vice and immorality in this state, and
shall never authorize any games of
chance, lottery or gift enterprise, un-
der any pretence of or for anp pur-
pose whatever.
Sec. 36. The legislature shall
make no appropriations of money out
of the treasury in any private law.
Bills making appropriations for
LEGISLATIVE ARTICLE
63
Thursday]
[July 27
the pay of members and officers of
the legislature, and for the salaries
of the ofacers of the government shall
contain no provision on any other
subject.
The salary of any officer shall not
be increased for any term for which
he may have been appointed or
■elected.
Sec. 3 7. No money shall be drawn
from the treasury except in pursu-
ance of an appropriation made by
law, and on the presentation of a
warrant issued by the auditor there-
on: and no money shall be diverted
from any appropriation made for any
purpose, or taken from any fund
whatever, either by joint or separate
resolution. The auditor shall, with-
in sixty days after the adjournment
of each session of the legislature,
prepare and publish a full statement
of all money expended at such sess-
ion, , specifying the amount of each
item, and to whom and for what
paid.
Sec. 3S. Each legislature shall
provide for all the appropriations
necessary for the ordinary and con-
tingent expenses of the government
until the expiration of the first fis-
cal quarter after adjournment of the
next regular session, the aggregate
amount of which shall not be increas-
ed without a vote of two-thirds of
the members elected to each house,
nor exceed the amount of revenue
authorized by law to be raised in
such time: and all appropriations,
general and special, requiring money
to be paid out of the state treasury
from the funds belonging to the state,
shall end with such fiscal quarter;
Provided, That the state may, to
meet casual deficits or failures in
revenues, contract debts never to ex-
ceed in the aggregate $250,000; and
monies thus borrowed shall be appli-
ed to the purpose for which they
were obtained, or to pay the debt
thus created, and to no other pur-
pose; and no other debt except for
the purpose of repelling invasion,
suppressing insurrection or defend-
ing the state in war, (for payment
of which the faith of the state shall
be pledged) shall be contracted un-
less the law authorizing the same
shall, at a general election, have
been submitted to the people, and
have received a majority of the votes
cast for members of the legislature
at such election. The legislature
shall provide for the publication of
said law for three months, at least,
before the vote of the people shall
be taken upon the same: and provis-
ion shp.ll be made at the time for
the payment of the interest annually
as it shall accrue, by a tax levied
for the purpose, or from other sour-
ces of revenue, which law providing
for the payment of such interest by
such tax shall be irrepealable until
such debt is paid. And provided,
further that the law levying the tax
shall be submitted to the people with
the law authorizing the debt to be
contracted.
Sec. 3 9. The legislature shall
never grant or authorize extra com-
pensation, fee or allowance to any
public officer, agent, servant or con-
tractor, after service has been ren-
dered or contract made, nor autho-
rize the payment of any claim or
part thereof, hereafter created
against the state, under any agree-
ment or contract made without ex-
press authority of law; and all such
unauthorized agreements or con-
tracts shall be null and void. Pro-
vided, The legislature may make
appropriations for expenditures in-
curred in suppressing insurrection or
repelling invasion.
Sec. 40. The state shall never pay.
assume or become responsible for
the debts or liabilities of, or in any
manner give, loan or extend its cred-
it to, or in aid of, any public or oth-
er corporation, association or indi-
vidual.
MISCELLANEOUS.
Sec. 41. The legislature shall pro-
vide by law thp.t the fuel, stationery
and printing paper furnished for the
64
REPORT TREASURER STATE UNIVERSITY
Thursday]
McCANN
[July 27
use of the state, the copying, print-
ing, binding and distributing the
laws and journals, and all other
printing ordered by the legislature,
shall be let by contract to the lowest
responsible bidder; but the legisla-
ture shall fix a maximum price; and
no member thereof, or other officer
of the state, shall be interested, di-
rectly or indirectly, in such contract.
But all such contracts shall be sub-
ject to the apDroval of the governor,
and if he disapproves of the same
there shall be a re-letting of the con-
tract in such manner as shall be pre-
scribed by law.
Sec. 42. The state of Nebraska
shall never be made defendant in any
court of law or equity.
Sec. 4 3. No law shall be passed
which shall operate to extend the
term of any public officer after his
election or appointment.
Sec. 44. It shall be the duty of
the legislature to pass such laws as
may be necessary for the protection
of operative miners, by providing for
ventilation when the same may be
required, and the construction of es-
capements, shafts, or such other ap-
pliances as may secure safety in all
coal mines, and to provide for the
enforcement of said laws by such
penalties and punishments as may
be deemed proper.
Sec. 45. The legislature shall pro-
vide for establishing and opening
roads and cartways connected with
a public road for private and pub-
lic use.
Sec. 4 6. The legislature may pass
laws permitting the owners or occu-
pants of lands to construct drains
and ditches for agricultural and san-
itary purposes across the lands of
others.
Sec. 47. The legislature shall pass
liberal homestead and exemption
laws.
The report was referred to the
committee of the whole.
Communications.
Mr. McCANN. Mr. President. I
have s. communication I wish to
present. I beg leave to present the
report of the treasurer of the state
university, furnished in accordance
with a resolution of this body, and I
ask for the unanimous consent of
the convention to have fifty or a
hundred copies printed. It is noth-
ing but a financial statement, is very
short and the expense of printing
will be small, and I wish it to go
before every member of the conven-
tion, and it cannot do so in its pres-
ent shape.
The following is the report:
OFFICE OF TREASURER STATE UNIVERSITY,
Lincoln, July 2!st, 1871
To the Honorable, the Constitutional Convention of the State of Nebraska:
(.lentlemen: — In accordance with a resolution adopted by your
Honorable Body, July 20th, 1871, I have the honor herewith to submit a full
and complete report of all moneys received and disbursed by me as Treas-
urer of Nebraska State University.
I have the honor to be, with great respect.
Your obedient servant,
JOHN L, McCONNELL,
Treasurer State University."
REPORT TREASURER STATE UNIVERSITY 65
Thursday] [July 27
RECEIPTS
May 8th, 1871, from H. A. Koenig. State Treasurer $28,263 60
July 4th. '• " " - ' " '< .... 10,937 17
July 10th, " " " " " " .... 4,500 00
Total Amount of Receipts $43,700 77
DISBURSEMENTS
SALARIES OP OFFICERS
Paid A. K. Henton, Chancellor $600 00
" H. T. Davis, Secretary, .SOO 00
■' J. L. McConnell, Treaourer, 150 00
Peter Kron, Janitor, 212 41
' ' Fred Rlieinhart, Guard, 48 42
$1,310 8'S
STATIONERY
For use , $73 90
Fencing University Grounds $541 15
TRAVELING EXPENSES
Professor H. E. Hitchcock, $50 00
O. C. Dake 20 00
$70 00
ON ACCOUNT OF BUILDINGS
Paid for Privies $103 28
" on U niversity Building 406 60
" Expenses Examining University 50 00
$559 88
COAL
Coal for use $641 69
Advertising for State University $75 00
Printing " " " 54 60
100 copies Nebraska Statesman 4 00
Coal Oil 1 25
A. M. Davis fur Merchandise 9 48
GENERAL EXPENSES
Wood, Coal Hod, Shovel and Chairs $14 50
Brush, Mop and Hoe 6 60
Step Ladder and Brush 6 00
$27 10
MILEAGE FOR REGENTS
C. S. Chase— January 10th, 1871— For Mileage $26 80
February 8th, " *' 26 80
March 2nd, " " 28 80
April 5th " " 26 80
June 14th, ' " 26 80
June 23rd, " " 26 80
$100 80
5
66 REPORT TREASURER STATE UNIVERSITY
Thursday] f J"'^ '^"^
R. W. Fornas— January 10th, 1871— For Mileage $28 00
February 8th " " 28 00
March 2d, " " ; 28 00
June 14th " " 28 00
$112 00
A. B. Fuller— February 8th, 1871— For Mileage $10 40
March 2d. '• " 10 40
June 14th, " " 10 ^0
June 23d, " " 10 40
$41 00
Uriah Bruner— January 10th, 1871-- For Mileage $30 40
February 8th, '^ " 36 40
March 2d, " " 30 40
April 5th, " " 36 40
June 14th, " " o6 40
$182
W. G. Olinger— January 10th, 1871— For Mileage $44 40
February 8th, " " 44 40
March 2d, " " 44 40
June 14lh, " " 44 40
$177 60
T.H. Longley— January 10th, 187i—For Mileage $37 20
February 8th, " " 37 20
March 2d, " " 37 20
April 5th " " 37 20
June 14th, " " 37 20
$186 00
J.B. Maxfield— January 10th, 187i-For Mileage \ $22 00
February 8th, " " 22 00
March 2d, " " 22 00
April 5th, " " 22 00
June 14th, " " 22 00
$110 00
D. J. McCann— June 14th, 1871— For Mileage <. $22 00
David R. Dungan— January lOih, 1871— For Mileage $28 00
February 8th, •' " 28 00
March 2d. " " 28 00
April 5th, " " 28 00
June 14tk, " " 28 00
$140 00
Total amount paid for Mileage ..$1,132 00
Total Amount of Receipts -. .$43,700 77
" "• Disbursements 4.500 78
$39,199 99
February 10th, 1871, Transferred to General
Fund 16,000 00
Cash Balance ou hand .$23,199 99
SALARIES OF JUDGES
67
Thursday]
BALLARD— GRAY
[July 27
Committee of the Whole.
Mr. BALLARD. Mr. President. I
move that the convention now go in-
to the committee of the whole for the
further consideration of the judiciary
article.
The motion was agreed to, so the
convention went into the committee
of the whole — Mr. McCann in the
chair — for the further consideration
of the judiciary article.
The CHAIRMAN. Gentlemen of
the committee, section thirteen is
under consideration. The question is
upon the motion of the gentleman
from Douglas (Mr. Boyd), who
moves to insert after the word
"court" shall each receive a salary
of $4,000, and insert before the word
"district" the words "judges of the".
The question is upon the amendment.
Mr. GRAY. Mr. Chairman. I
have a word which I desire to say
upon the question of these salaries. I
am opposed to the amendment offer-
ed by the gentleman from Douglas,
(Mr. Boyd) simply for this reason.
The amendment proposes to make a
distinction between the judges of the
supreme and district courts. The
amendment proposes to give the
judges of the supreme court a sala-
ry of $4,000 and the judges of the
district courts but $3,000. I am not
very strenuous — my mind is hardly
made up as to what the salaries of
the judges should be. It is proper
for me to say, however, that I desire
to see these officers paid well for
their services. It is a question in
my mind whether $4,000 is too
much. While it is urged here that
we may load down the constitution
by making these salaries too large;
whatever it may be decided upon,
whether it shall be $3,000 or $4,-
000 or any other amount. I desire to
see the amount fixed for all the
judges the same. It seems to me
that if you make a distinction,
though it be but $5, that the distinc-
tion itself will have the tendency to
make a wide distinction in the class
of ability of the judges who pre-
side upon the benches of these two
courts. For my part I believe we
need the best ability in the state for
the district courts, as well as for
the supreme court. I am satisfied
that the expenses of the judges of
the district courts will be greater
than those of the judges of the su-
preme court; their time is more ful-
ly occupied — in short, their labor is
greater, and their ability should be
of the first. The judges of the dis-
trict courts are called upon to pass
upon all questions of a general na-
ture which pass before them, gener-
ally with perhaps a moments notice,
and they must be ready to act
promptly upon these questions. While
I desire to see our best talent upon
the supreme bench, still it must be
considered that they have much
greater time for reflection and con-
sideration than the judges of the
district courts. I think it would be
unwise to place upon the benches of
the district court, lawyers less than
the best in the state. It seems to me
if you pay judges of the district
court less than the judges of the su-
preme court, those lawyers who stand
at the head of the profession in our
state will be disposed to avoid the
position of judge of the district
68
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
courts. For my part I wish to avoid
that result. I desire to see the best
talent in the state upon the bench of
the district court. So then I say,
that, whatever the salary is, I desire
to see it made uniform and the same
sum paid the judges of the district
court that is paid the judges of the
supreme court. I shall oppose hot
only this amendment, but every
amendment of that kind; but if the
gentleman from Douglas (Mr. Boyd)
will make his amendment read $4,-
000 to each of the judges, I am not
sure that I will oppose it.
Mr. WOOLWORTH. Mr. Chair-
man. I desire to say a few words
this morning in respect to this mat-
ter. The idea seems to obtain, with
some of the members of the conven-
tion, at least, that we are establishing
a government with a great many
more oflicers and a great deal more
expensive than the old state govern-
ment. Nbw, I think there is a mis-
apprehension upon that subject.
Aside from the single office of Lieu-
tenant Governor, to whom will be
paid, I suppose, two or three hundred
dollars a year, we have created no
new offices. We have a governor,
secretary of state, auditor, treasurer,
attorney general, and superintendent
of public instruction; add to these
offices the single one of land com-
missioner, and you have already as
many state officers as we propose to
establish. I desire to call the atten-
tion of the members of the com-
mittee to that matter. Let us look
farther. It may be said, "you pro-
pose to provide for larger salaries
for these officers." Well, now let us
see whether, under the government
we propose to establish, even if we
do, we are going to have a more ex-
pensive government than we already
have. I dont know, precisely, what
is paid to all the different state of-
ficers. If my recollection serves me
right, the auditor gets $2,500 now —
the same we propose to pay him un-
der the new constitution; the other
officers get somewhat less than you
propose to pay them. But see what
you save by the scheme of govern-
ment you have provided. You give
the three inspectors of the state's
prison from six to seven thousand
dollars per annum. That you propose
to wipe out. We propose to wipe out
all the expenses of the regents of
the university and several other
boards. Now, then, put the expenses
you propose to cut off to the lowest
figure, and it can't be much less than
ten thousand dollars. That sum will
make up all the extra expense arising
from the increased salaries which are
proposed. These declarations, that
we are establishing a government sO'
much beyond what we have had here-
tofore, and so expensive that the peo-
ple will be unwilling to adopt it, are
not well founded. I assume that
these offices I have mentioned are to
be cut off, from the remarks in pri-
vate I have heard made by several
members, as well as by the action
which has been taken thus far in
this committee. Now, there is anoth-
er matter to be taken into consider-
ation by this committee in connection
with this matter of economy. I say
that it is a true economy to secure the
services of 'he very best judges, al-
though you pay them twice what you
pay common men. I will illustrate'
SALARIES OF JUDGES
69
Thursdaj-]
WOOLWORTH
iJuly 27
what I have to say by a single in- [ sideration of the first case like pow-
stance taken from my own personal ers the whole second litigation would
experience. Allusion has been made j have been entirelv saved.
to the litigations between Lincoln
county and the Union Pacific railroad
company. There have been two suits.
The first suit brought was before Mr.
Justice Crounse. who held that the
railroad company was liable to tax-
ation by the county and state. Now,
sir, I beg to say that no man enter-
tains a higher opinion of the fairnesa
learning and ability of Mr. Crounse
than I do. I take this opportunity,
in passing, to refer to the man who
adorns the bench of this state. But I
say that this gentleman did not by
The point which I wish to make is
this, that it is a true economy to
place upon the bench men of the very
highest character, because then liti-
gation and the great and manifold
expenses attending them will many
times be avoided. The public will
not rest satisfied with even the most
elaborate judgments of the supreme
bench, unless that bench is filled
with the very best men. A case may
there be determined, but parties af-
terwards involved in a like controver-
sy, considering the principle of the
liis correct judgment command the case still unsettled, will renew the
assent of the railroad company and
their counsel; and they were not sat-
isfied wit<h itbecause the learning and
character of the judge was not such
as to impress the litigants with the
feeling that he was certainly right.
What was the result? The railroad
company paid the tax then particula-
controversy. On the other hand,
let men worthy of the dignity be
placed in the judgment seat, and
their opinions, as one by one they
are delivered, will be accepted as set-
tled law — not to be questioned, not
to be changed. Have a court filled
by judges who enjoy the confidence
ly in question, to besure, after a very ! of the profession and the public; who
considerable deduction made on the
part of the county, by way of com-
promise in order to avoid the delay of
an appeal. Then what did the rail-
road company do? It went into the
bring to the discharge of their high
duty abundant learning and capaci-
ty and devotion to their duty, and a
system of law will be built up, before
which parties and counsel will bow
Circuit court of the United States. It ' in homage. Put it on the question of
went there to get the opinion of Mr.
Justice Dillon, or if possible, Mr.
economy, and I say it is the greatest
economy to fill this high position
Justice Miller. It went there to get j with men of the very best ability. My
the opinion of one of the very first colleague!, Mr. Lake, who fills the
men who adorns the bench of this
land. In the opinion of one or the
other of those judges it was willing
to abide, because in their great learn-
ing and ability it had supreme con-
iidence. Now, sir, had the judge of
bench in the second judicial district
tells you the same judges will oc-
cupy their offices, the same candi-
dates will be presented to the elect-
ors for their suffrages for these po-
sitions ?.s before. I think not, sir.
the state court brought to the con- I think the men who will be present-
70
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
ed as candidates, if not those wlio
will be elected, will be men of high-
er character and fitness if the sala-
ry is four thousand than if it is three
thousand dollars.
I am willing sir, that our best men,
the men among us who are most
fitted to sit in the courts to adjudge
the rights of their fellow men, will
not accept the position for the sake
of the salary. They today earn in the
practice of their profession twice or
more than twice the sum you may
give, whether it be three thousand or
five thousand dollars. Nor, sir, do I
think they will seek the position
simply for the honor. That is a mat-
ter of desire, certainly. I will not
detract one iota from the dignity of
the office; but men will not make sac-
rifices of half of their income in or-
der to secure it. It is honor at too
high a price. The man who for the
salary or the honor of the place
would seek or accept it Is utterly un-
fit for it. The motive of his own
heart is wrong, and the whole of his
career will be in the wrong direc-
tion. But there is another and a
higher reason why this exalted place
should and will arouse the laudable
ambition of the very best men. It is
that it furnishes opportunity of use-
fulness to the state and people. He,
sir, who shall sit on this bench at
this stage of our history may mould
and lay the foundation of the juris-
prudence of this state for all time
to come. He who shall bring to this
work ability, learning, faithfulness
and power adequate to this charge will
do a great service to this people; will
build a mounument to his own name
that is to be desired beyond all the
money you can give them, and be-
yond all the honors you can confer.
It is to do what Chief Justice Caton
has done for Illinois; what Chief Jus-
tice Blackford has done for Indiana;
what Judge Hitchcock has done for
Ohio; what Judge Kent has done for
N. Y., and Judge Parker of Massa-
chusetts. Why, sir, it is an opportu-
nity offered to the right man that
comes but once in a life time; an op-
portunity that comes but once in a
generation. This is what makes the
office honorable, and stimulates the
ambition of good men to desire it
and fill it. Such a man would serve
his day and generation, and the most
distinguished man in these United
States is unfit to sit upon the bench
if he is not actuated by this motive.
A life devoted to objects of selfish-
ness, in acquiring wealth, honor,
however brilliant, will, when it is all
spent, be worthless and a withered
thing; but a life spent in doing good
in the service of the state, of the peo-
ple has a glory which illumes the
memory of the man who lives it, and
the people whom his services shall
bless. But, sir, there is another view
in which I desire to present this mat-
ter to the committee. I ask you, gen-
tlemen, to go back with me in the ju-
diciary history of this nation a few
decades. When Chief Justice Mar-
shall presided in the supreme court
of the United States, a little case
came before that court for consider-
ation. It scarcely involved over one
hundred dollars. The question was
whether the old corporation known
as Dartmouth College should be sup-
pressed, and another called the Dart-
mouth university established in its
SALARIES OF JUDGES
71
Thursday]
WOOLWORTH
[July 27
place. The officers of the new insti-
tution demanded of the secretary of
the old books of account and record
— some five or six in number, and
when refused, brought the suit to re-
cover them. Thus was raised the
question of the validity of the act of
the legislature), which turned upon
the provision of the Federal Consti-
tution denying to the states power to
pass laws impairing the obligation of
contracts. Thus the great question
was involved in that little case
whether institutions of learning and
institutions of religion should be pre-
served to do their benefice ent work,
or be subject to the caprice of irre-
sponsible legislatures. It was argu-
ed by the great American, Webster.
After he had gone through an argu-
ment of matchless power, he closed
by saying: "I speak today, not for
the single institution whose existence
is here involved. It is a small insti-
tution. If its light shall be put out,
still the clear day will bless the state.
But I speak for the multitude of in-
stitutions scattered all over the land,
by which the young are trained to be
citizens, and the suffering of the un-
fortunate alleviated. I plead for the
charities which benevolence have or-
dained, and the bounties by
f'which"] the lights of learning
and science are forever to be
fed. I plead for the future in its
illimitable issues, as well as these
in which we live." The court ad-
journed. It took time to consider on
its judgment, and then came in. and
the great Marshall delivered that
opinion, luminous with learning and
reason which established safe forever
all the blessings of the charities, the
legacies, the bounties, which the be-
nevolence of the good in all time
shall found and endow.
It was a principle whose issues
reach to the end of time, and compass
all institutions of charity and reli-
gion. To declare, to entrench, to for-
ever established this beneficent law
was the office and the work of a
great judge.
Do you think, sir, that pigmies can
render this great service? Do you
think that cheap men are fit to be
put at this great work? If so, pay
them but the small salary fixed by
the section. Do you say such ques-
tions as were involved in the case I
have referred to do not arise in our
courts? Why, gentlemen, to-day
there is in the Supreme court of the
state of Nebraska a question involv-
ing issues just as far reaching, prin-
ciples just as important as the case I
have referred to. To the determina-
tion of that case must be brought the
largest learning, the most exhaustive
research, and the largest powers, it
is no less than this, stated simply:
Whether a negro can sit on the ju-
ries of this state. Stated in its lar-
ger relations, is whether its funda-
mental law can be dictated to a sov-
ereign state by congress and by the
legislature of the state, elected for
a mere ephemeral purpose. Nay, an-
other question, broader and greater
than this: The relations to the Fed-
eral government of a territorial or-
ganization framing the fundamental
law of the future state, and the rela-
tion of new states to the general
government. It is p. question before
which any man who addresses him-
self to its determination ought to
I
72
SALARIES OF JUDGES
Thursday]
WOOLWORTH
[July 27
bow down in profound humility, it
is a question not inferior in luayrnitude
deserving no less of consideration, as
any possible question that can be rais-
ed before the courts. Why this very
question of wheather this sovereign
state of Nebraslva, as well as the
several counties, can tax this Federal
corporation, the Union Pacific rail-
road is another question of the ut-
most importance; a question upon
which depends not the fifty thousand
or seventy thousand dollars that may
be involved in any particular litiga-
tion, but involving a repetition of
that sum through all the years to
come. I say this tribunal is the one
which must determine these ques-
tions. Now, sir, how are you to se-
cure men who are competent to dis-
chrage these great functions? Sir, I
am not of those who believe that the
man lives today in this state who is
altogether competent to discharge
the duties. Sir, I am one of
those who believe that any man
has led the life that has fitted him to
occupy this judgment seat in a man-
ner worthy of himself and worthy of
the place. Why, sir, the judge who
shall sit in that court, who passes the
vacations which he will have in idl-
ing about the streets, or in social
conversations with the neighbors arid
friends will never become fit for it
The man who has no library in
which he lives will never be fit for it;
the man who does not go into his
library, an ample library that of
itself shall cost all that you give one
of these judges in a year, the man
who will not have such a library and
go into it; and there exhaust day by
day and night after night the best ef-
forts of his mind, all the powers or
the nature with which God has en-
dowed him, will be unfit to sit there.
It is a man, sir, who shall deem his
duties on the bench but a very small
part of the duties of his office who
will adorn that seat. It is the man
who shall, vacation after vacation,
month after month, week after week,
day by day, night by nighc.store his
mind with the learning of law, and en-
rich and strengthen the powers of
his mind by the exercise of dilligent
and laborious study. Stich a man, sir,
living such a life, will do for this
state the service which we are enti-
tled to exact at his hands. Why, sir,
do these few thin volumes of statutes
that have been compiled contain the
body of the law? No, sir, they are
the thousands of volumes that line
the walls of your library below, and
he will be a fit judge above who shall
exhaust the learning that is there. Is
the legislature the law making pow-
er of the state? Why, sir, no legis-
lature is wise enough or good enougli
to embody the law in its enactments.
They are contained in the great num-
ber of reports which make up the
great body of the law.
These reports contain the opinion
of the great succession of judges who
through many generations and many
centuries, have from the many cases
before them evolved, illustrated,
made plain the fundamental rules
and great principles of jurisprudence.
He is not equal to the stature of
a great judge who has not mastered
it; nor will he ever attain that stat-
ure who does not labor to master it
all. Now, sir, I say that you must
pay these men enough to enable them
SALARIES OF JUDGES
73
Thursday]
WOOLWORTH
[July 27
to withdraw from the ordinary pur-
suits of life and give themselves up
altogether to this great work. I ap-
prehend, sir, that no man that is
elected to that position will be so
wanting in self-respect, and so want-
ing in respect for the good opinion
of his neighbors and fellow citizens,
as to withdraw himself from habits
of idleness and mere social inter-
course. I would have him also with-
draw himself from all avenues for
the accumulation of property. I
would have him withdraw himself in-
to the inner sanctuary of the learn-
ing of the law. That he can on'y do
by being relieved, by a fair salary,
not a liberal one, not an extravagant
one, but a fair salary, from the neces-
sity of eking out his living in the by-
ways and hedges of private life. Not
that he would be corrupt, God forbid
that this people, whatever salarj'
they shall pay, would elect into this
high tribunal one man who should
thus forfeit not only the respect of
his fellow citizens and the respect of
himself, but his hope of heaven, here-
after.
But, sir, while I have no fears of
that, if this salary should be put down
to a low figure, the pitiful sum of
$3,000, that you will get men in this
place who will either eke out their
substance from private fortunes al-
ready accumulated, or else by modes
that are not reputable, not fit for a
good judge to pursue. Therefore, sir,
I am in favor of the amendment of
my colleague from Douglas, (Mr.
Manderson) that the salaries of
judges of the supreme court shall be
put at the sum of $5,000 and if the
^salaries of judges of the district
c ourt are put at a lower sum, I am
not certain at all that any injustice
will be done. One word further be-
fore I sit down. This convention has
had before it the report of the au-
ditor of state showing the amount of
money paid into the treasury on ac-
count of commencement fees. I do
not know what that sum is, I know
it is very large. I am willing to con-
fess my utter surprise to see that a
measure introduced into the present
constitution of the state by which so
large a sum has been realized to the
state from this source, is left out.
Here is a mode of raising the means
of paying these salaries,, and the ju-
diciary committee come here and
say the people are too »poor to pay a
decent salary to these judiciary of-
ficers. Think of it. If one go into
the court and have the service of the
judge is it not right that he should
pay the expense? Oufrht he not to be
compelled to do tha^ More than
half the litigants in Douglas county
are non-residents of this state, and
the learned judge who presides in
that district court has told you that
in that county is done more than
half the judicial business of this
state. More than half are non-resi-
dents. I put it to you if it is not fair
if people come here to have the bene-
fit of our courts, that thev should
contribute the s'.:m of five dollars as
commencement fee? How is it pos-
sible to strike out the means of judi-
cial revenue and then cry out that
the people will not pay fair salaries
to these judges? Restore the provis-
ion and you have revenue sufficient
to pay all the salaries you want to
give.
74
SALARIES VS. THE PEOPLE
Thursday]
MYERS— TOWLE
[July 27
Mr. MYERS. Mr. Chairman. I do
not rise for the purpose of discussing
this question of salaries, but merely
to state my own impressions as de-
rived from the discussion as it has
thus far progressed. I think the
convention has devoted too much
time to the subject already and if the
whole session is to be consumed in
discussing salaries it will be certainly
a very expensive waste of time
which the people all appreciate. I
only wish to make this remark that if
we load the ship too heavily, put too
much freight on her, and she may be
a ship of heavy tonnage and able to
carry much, but if you go beyond
the measure of the ship you sink her
'to the bottom. It is true we are .in
favor of liberal and just salaries and
we have different views as to the
amount of those salaries; but if we
make them beyond the reach of the
people we certainly injure the sailing
power of our vessel, and we may all
go to the bottom. There is a greater
power behind the throne than the
throne itself. I mean the people, and
they will not roll these salaries under
their tongue as a sweet morsel; but
they will look at them as burdens,
and they will compare what it costs
them for the necessities of life, and
regulate them by that, and the com-
parison will not be favorable to
heavy salaries. I do not wish to stint
the judges of the judiciary to mean
and unworthy salaries, and make
them dependent upon private charity.
That would be unfair to a great state
but to give fair salaries is my ob-
ject. The legislators are the cus-
todians of that power which says
that the salaries shall not be increas-
ed or diminished, and I believe we
ought to leave it with the people. If
the people elect a judge, in whose
integrity and ability they have con-
fidence, they will provide by legis-
lative enactment what is right and'
proper. Therefore in order to save
our ship I move that the salaries be-j
regulated by law.
The CHAIRMAN. The amendment
is not in order.
Mr. MYERS. Then I make it as- j
a suggestion. '
Mr. TOWLE. It seems to have j
been a point entirely overlooked in
the discussion so far, that the pow-
er was already vested in the legisla-
ture, by section thirteen, to increase
the salaries of the judges of the su-
preme court. It appears to me the-
amendments which have been made
here should not prevail. The salary
fixed by the judiciary committee is-
entirely adapted to the wants of
the people of Nebraska. We should'
look to the financial condition of the-
state and see in what condition we-
are to pay these large salaries, just
as the head of a family does when
hard times come or, when resources
are cut short, and there *is danger of
being stranded upon the sands of in-
debtedness. We ought to reduce ex-
penses where, by possibility, it can be
done. The gentleman from Douglas
(Mr. Woolworth) spoke of Justice
Field of California. Cooley of Michi-
gan, and others. The yearly income of
California is $135,000. [Sic] Looking-
at our appropriations last winter we
find there were $200,000 one year,
and $400,000 for the two years. We
are running in debt, and getting be-
SALAEIES OF JUDGES
75
Thursday;
WOOL WORTH-TO WLE
[July 27
hindhand; and I ask if It is proper,
finding this state of affairs, to in-
crease the salaries of these judges. Is
it or is it not a question that those
judges can live reasonably well and
respectably upon a salary of $,3,000
per year. I will venture to say that
the salary of $8,000paid to the judges
of the supreme courts of the United
States, living at Washington, is no
more than $3,000 per year in Ne-
braska. That a man can live as com-
fortably and respectably in Nebraska
as those judges do at Washington.
Mr. WOOLWORTH. Will the gen-
tleman allow me a word. Is he
aware that Chief Justice Curtis was
compelled to resign his seat because
his salary was insuflBcient? And I
know myself that the justice as-
signed to this judicial district has
used so much of a very large private
fortune that he is in a very embar-
rassed state.
Mr. TOWLE. Mr. Chief Justice
Curtis is, perhaps, the only individu-
al who has resigned on that account
and there were other and mixed mo-
tives which influenced that resigna-
tion, because it is known he could
make at least two or three times the
amount in his practice than he was
making while in an ofiicial position.
I do not want to repeat that kind of
thing in this state.
I would have this constitution,
when it goes before the people, strip-
ped of all dead weight. I would have
it stand in the arena as stood the ath-
letes of old when competing for priz-
es. I believe there is a certain pride
of the members of this convention to
have this constitution go before the
people in such a shape as that it
will be adopted. The gentleman
from Douglas spoke too, in contradic-
tory terms, of Mr. Crounse. He based
his opinion smooth as it was deliv-
ered, and rounded as were his sen-
tences, and I believe all who know
him can vouch for that. Yet he says,
with all his learning, his integrity
and his desire to do justice, he
could not satisfy the demands of that
corporation, when a suit goes against
them in the lower court, they never
stop, but take it up into the higher
court. But that gentleman might
have said, after passing that magnifi-
cent strain of eloquence on Judge
Dilworth and Miller, that they still
decided to take it up to a higher
court. And that corporation, when-
ever they lost in a lower court, pass-
ed that thing on until the bitter end
and demanded a decision. The gen-
tleman made an argument which will
not stand by itself. And those very
gentleman, Miller and Crounse, could
you have found another man in Ne-
braska that that giant corporation of
which the gentleman has spoken
would have been content with and
they would not appeal from? Why
sir, the individual could not be found.
They would have risked the affairs
of the corporation in any other
hands.
Mr. MYERS. I would ask, as a
matter of order, what railroads have
to do with this body?
Mr. TOWLE. I am speaking to a
question which the gentleman before
me alluded to.
Mr. LAKE. I trust the gentle-
man may be allowed to proceed.
The CHAIRMAN. The gentlemaa
is in order and can proceed.
IG
SALARY OF SUPREME COURT
Thui-sday
TOWLE
[July 27
Mr. TOWLE. It is barely possible,
Mr. Chairman that were I sitting
here as a legislator, and did I not
have a particular desire that the peo-
ple should adopt the constitution, it
is barely possible that when our re-
sources are increased, that was the
business of the supreme court suffi-
cient to keep men busy all the time
that I might here, if our income
would justify, and I do not believe
our people would object to an in-
crease from $4,000 to $5,000 per
year. The argument was urged that
we have increased the governor's sal-
ary to $4,000, and why not increase
those of the judges to the same
amount. I grant you that it may take
a better man to make a good judge
than it does for a governor. But they
must not forget that we have required
"by our constitution that the governor
must reside here at Lincoln, and
must support his family upon his
pay. I tell you that it will take one
or two thousand dollars per annum
for a judge to live here than if he
resides in any other portion of the
state.
Mr. Chairman. Believing that
when there is a necessity for it the
pay of our judges will be increased
and believing that one thousand dol-
lars more given to a man to make
him honest, will not have that ef-
fect, because if he is dishonest, he
he will be dishonest anyhow, I oppose
the increasing of the salary as pro-
posed, again: it is provided that the
Judges of the supreme court shall
be over thirty or forty years of age.
Now if they have been men of mode-
rate economy they have accumulated
sufficient property that they can take
these offices for perhaps something
less than the amount they may see
fit to expend each year. It is not for
pay, altogether that men take these
offices; it is for the influence, the po-
sition, the power they get. To some
extent I think that a man ought to be
willing to take these offices for the
honor connected therewith as well as
for the emoluments of the office. I
deny that insufficient salaries ever
made a poor bench or a dishonest
bench; but it is a fact sir, that our
judges are honest and upright men.
It is not the salary which they re-
ceive that has developed such men
as Cooley, Blackford, Dillon, and
others of like reputation. It is a
fact that their salaries were small,
but sir, the God given intelligence
they possessed was bound to shine
forth and be of value to themselves
and their fellows. The intelligence
which God has given to men will
make itself felt, and wherever you
find these men, whether they receive
large or small salaries you will find
them pushing their way through.
Now, sir, when we are placed in a
different and better condition, when
we are prepared to pay better sala-
ries, then I am ready to pay more. I
believe that oijr present judges will
accept the offices they now hold. I
believe that the people have asked
them to become candidates for re-
election, and that they are willing
to keep their places. Mr. Chairman,
for these reasons I am opposed to an
increase of salary over that as report-
ed by the committee.
Mr. ABBOTT. Mr. Chairman. I
will ask the gentleman if he never
SALARY OF SUPREME COURT
Thursday^
ABBOTT— MASON
[July 27
heard that Chief Justice Taney spent
his life upon the bench, and, when
he died left his family in poverty?
Mr. TOWLE. Yes, certainly, I am
acquainted with the case.
Mr. ABBOTT. I would like to tell
the gentleman of a fact which came
under my observation. I was riding,
sometime ago, with Judge Crounse.
When the conductor came around,
the judge showed his pass, and said
to me, "the fact is, I am ashamed of
this, but my salary is so small as to
leave me poorer every year and I am
not able to pay my way, and have to
accept passes from railroads." I told
him then, that if I ever had the power
I would do all I could to increase
the pay of judges, and give them
salaries somewhat better proportion-
ed to their abilities and service ren-
dered.
Mr. MASON. Mr. Chairman. I
don't propose to let this question pass
without stating my individual views.
The question is one which interests
all the people, because the protection
of lives and property are connected
with it. It is important that the law
he clearly declared, and to the ac-
complishment of this result we must
have judicial offices, filled by men
of learning and ability. This class of
men are not usiially men who are
distinguished for the acquisition of
property. Indeed, sir, if we look
over the world, we find the distin-
guished scholars, in every depart-
ment poor men. A man sir, cannot
bend every energy of his mind to the
study of his books and yet engage
•a speculation; he cannot worship at
e shrine of learning, and, at the
same time be toiling for acquisition
of wealth. Now. sir, what is the
lesson we learn from this? And let
us consider for a single moment what
we do when we ask a man who is
fit for the place. Why, sir. he aban-
dons a profession — he abandons a
practice which it has taken him years
to build up, for sir, every lawyer up-
|on this floor will tell you that his
practice, and his knowledge of the
law is his capital, this, sir, is scat-
tered to the four winds — swept from
existence. Usually it is a practice
which will pay him not less than
four or five thousand dollars per an-
num. Why sir, if I appeal to my
learned friend, Judge Lake, he will
tell you that he laid down a practice
which was paying him four thousand
dollars a year, and took the two
thousand dollars which he receives
as a district judge. But sir, it is not
just to the state to shut out the learn-
ed man who may be poor, from hold-
ing this office, because he has no pro-
perty to fall back upon to support
himself. One other suggestion I de-
sire to answer; I can speak for one,
and I speak too as one, whom, so
far as I know, is not famous for ex-
travagance, neither at home nor
abroad, and I say I am thirty-five
hundred dollars poorer today than
when I was sworn into office, notwith-
standing I have drawn from other
sources than my profession. Now
this I hold to be the true rnlp with
respect to the salary of the judges;
you should pay him sufficient to let
him live, and support his family not
in luxury, not in opulence, but still
in a comfortable manner. We should
have enough to live on and pay for a
78
SALARV OF SUPREME COURT
Thursday]
MASON-LAKE
[July 27
life insurance policy, so that if he is
taken away, his family should not be
left to the cold charities of the world.
Let us take this for a standard, we
pay $3,000 a year. If any gentleman
rent a house and furnish it and fit
it up for his family of three or four
children, in this place — I am told
that he cannot rent such a house for
less than $800 or a $1,000 a year,
and they tell me that they cannot
support their families and educate
them for less than fifteen hundred
•dollars a year, although he may not
give a dinner party the whole year
round, and then sir. he has but $500
left to pay his taxes, etc., and he
•will have nothing left to pay the pre-
miums on a life policy. Still I
would not favor paying $5,000, al-
though I would favor $4,000. I am
not so fortunate as to live here where
I can have access to the state li-
brary and it will take $500 a year
to keep up my library. One that
spoke as man speaketh not has said
"the laborer is worthy of his hire"
and I think the judiciary officer is
worthy of his hire. It does seem to
me in looking over this matter that
the necessary expenses are to be con-
sidered. It costs more to live in the
state of Nebraska than any other
state in the Union, with two or three
exceptions. I undertake to say that
my colleague (Mr. Lake) could not
rent the house he lives in in Omaha
and live on less than $3,000 a year.
I would not make it five thousand for
the reason that the gentleman from
Douglas (M. Woolworth) has sug-
gested that no such man is in the
stftte now and we will have to take
some man that is in the state, and
hence I think it is well for the con-
vention to fix between these two ex-
tremes $3,000 and $5,000. If it is
thought by any gentleman that I de-
sire to retain this office at $3,000 a
year he is grandly mistaken. My
first duty is to my household; my chil-
dren remain at home to day unedu-
cated merely because I am unable to
send them away. If we put this sal-
ary at $4,000 I think we can then
command as good talent as we have
in the state. For these reasons I
shall support the amendment offered
by the gentleman from Douglas (Mr.
Boyd.)
Mr. LAKE. Mr. Chairman. I
beg the indulgence of the committee
a few minutes. It seems to me that
the whole question is begged by the
gentleman who support these large
salaries. They all admit the fact
that I have stated that we shall have
the same judges on the bench that we
would have with a higher salary.
Mr. Chairman, I agree with my col-
league (Mr. Woolworth) in the high-
er encomiums he pays to the eminent
gentlemen of the bench, and sir,
what was the salary that has brought
forth his talent? What was the sal-
ary paid to Chief Justice Hitchcock
of Ohio? For a long time he labor-
ed upon a -salary of $1,800 and $3,-
000 a yeai is all that is paid today
in Ohio. Ohio the third state in the
union, with more causes to be de-
termined in one year than will be
found here in a term of six years.
Look at her ability to pay and at our
poverty as a state and tell me why
we should pay more than that and the
older state. When we cast our eyeg
SALARY OF SUPREME COURT
79
"Thursday'
LAKE
[July 27
•over this prairie, what do we see, as
a source from which to draw all these
Tiigh salaries? The inhabitants all
over this state have come here for the
purpose of making homes. Many of
them unable to pay for the lands they
have purchased. They have come
here for the purpose of bettering
their condition. They are living in
hovels, in dug-outs, in sod shanties
and tents throughout the length and
breadth of our state. It Is from
these sources that the revenues of the
state are to be drawn, and we must
not expect to step forth at first into
the full grown stature of the first
state of the Union. We must not ex-
pect to be able to pay the same sala-
ries to our officials that are paid in
the state of California, whose foun-
dation rests upon solid gold. We
must look to the interests of our
constituents and ask what they are
able to pay for a reasonable amount
of intellect, a reasonable degree of
talent, and I think Mr. Chairman,
that if the best order of intelect, the
best learning at the bar of our own
state are brought to investigate the
questions which are brought within
our courts that the people of this
state will be perfectly satisfied, and
although in the eloquent language of
my learned friend (Mr. Wool-
worth) their decisions may not be
quoted in Westminster hall, although
they may not shine with the lustre
that the Blackstones or the Kents or
the Storys, or the Shaws could be-
stow upon them, still the people of
our state who are living in their dug-
outs, shanties, and sod houses will
be perfectly satisfied if the persons
tiey elect to fill these oflSces bring
to the decision of the cases which are
submitted to them all the talent
which they possess and do that hon-
estly and well. Now for the purpose
of showing what the talents which
the gentleman has eulogized so well
and highly were paid what the ju-
rists of Ohio, Minnesota, Kansas and
of other states were paid, { will read
a list I have prepared of a few states.
Missouri, one of the richest of our
western states, pays to its supreme
judiciary $3,000 per annum. Minne-
sota, a state far more wealthy than
ours, a state older by a good many
years, a state that has a far greater
amount of litigation than Nebraska,
what does it pay its supreme judge?
$2,000 per annum. Michigan, a
state whose decisions are quoted
throughout the length and breadth
of the land, that has a judiciary to-
day, perhaps, second to none in the
United States, and one whose decis-
ions are quoted in the Supreme court
of the United States. What does the
state of Michigan pay its judiciary,
a state that has that man so eminent
for his learning — Justice Cooley —
presiding upon her supreme bench,
she pays $1,500 a year. Kansas, a
state that was admitted into the un-
ion long before Nebr. thought of be-
coming a state, and a state which
must have two or three times the
amount of litigation found within
our courts. What does she pay? To
her chief justice, $1,800 a year, and
associates $1,500. Iowa, what does
she pay? We find upon the statute
books of that state the salary of her
supreme judge is $2,000 per annum.
Ohio, I have before remarked that
at the time she could boast of th»
80
SALARY OF SUPREME COURT
Thursday]
LAKE
[July 27
eminent jurists she has ever had,
those that sat together with the emi-
nent chief justice named by my col-
league, Hitchcock, that at that time
when those decisions were pronounc-
ed that are today recurred to with
pride by every son of Ohio; at that
time the salary provided for her ju-
rists was $1,800 per annum. She
has increased it so today the judges
on the supreme bench receive $3,000
per annum. Now, Mr. Chairman, I
would ask what sense is there in this
great increase of salary by a people
poor in worldly goods as we must all
admit Nebraska is to day. Indebted
to the extent that we are, our state
debt increasing from day to day
with fearful rapidity, that our tax
payers in every portion of the state
are bowed down as it were under the
load they are compelled to carry by
reason of excessive taxation, and by
reason of the excessive burdens they
are bound to bear. I would ask Mr.
Chairman, is there any reason what-
ever why a state thus poor should
payher judiciary — when it is claimed
by my colleague (Mr. Woolworth)
that she has not the material of suf-
ficient value without importation —
these high salaries? It seems to me
there is no reason whatever in it.
The learned chief justice who has
presided during the past four years
upon the supreme bench, and who it
is admitted has presided with dignity
and with credit, he says that th«
the salary he has received has been
entirely inadequate. That may be
true. I agree with him in all he has
said ; respect to that. I agree that
$2,000 has been an inadequate sala-
ry, but sir, had the salary been $3,-
000 per annum, had it been what we
are proposing to make it in this con-
stitution, then, during the past five
years, or nearly five years that he
has sat upon the bench, he would
have received $5,000 more salary
than he has received, and where
would have been his loss of $3,500?
Would it not have been more thaa
made up? Would he not have had
sufficient then so that he would not
have been poorer today by $3,500
than when he took his seat upon the
bench? and is it not a fact Mr.
Chairman, that the purchasing power
of $2,000 today is equal at least to
what $3,000 would have been during
the first years he sat upon the bench,
and then, in alT human probability
that $3,000 during the six years to
come will be equal to what $4,000-
or $5,000 has been during the six
years that have passed. Why sir. it
has been remarked that Nebraska is
one of the most expensive states in
the union to reside in. In some places
that has been true, but I do not agree
that at the present time it is one of
the most expensive states to reside
in. All those articles which enter
into the daily consumption of fami-
lies can be provided within our state
as cheap or nearly as cheap as in
any other state in the union, and
much cheaper than in the eastern
states, cheaper than in Ohio where
the salaries are $3,000, as cheap as
in Iowa where they are $2,000, as
cheap as in Kansas where they are
$1,800 and cheaper than in Missouri
where they are only $3,000. Now
sir, what is just and what is right,
that is the question. Is it just, is it
right, that the people of this state
SALAKY OF SUPREME COURT
Thursday]
LAKE
[July 27
should pay $5,000 per annum to
increase the private library of any
judge that may be elected to sit up-
on her bench, when she can illy af-
ford to pay out of her state treasu-
ry $1,000 per annum to increase the
state library which shall benefit the
people of the entire state. Why sir,
gentlemen talk upon this floor as
though it was the duty of the state
to make up for gentlemen's private
law libraries, that when they retire
from the bench they may have a for-
tune in a private library. If a man
has been in the practice of the law
and has lived to the age of thirty
years and been in successful practice,
if he has not already a fair library
or the means of purchasing one, then
it seems to me that he has practiced
law to little purpose, his profession
has not been of much use to him. He
should have been able at that period
of life, at least if he had been a suc-
cessful practioner at the bar to have
accumulated enough to purchase at
least a respectable law library, if
he had not already furnished himself
with one, and I do not believe that
the people who are living in the dug-
outs, shanties and mud houses, who
are living upon farms not paid for,
who are paying interest upon money
which they have agreed to pay for
their little farms, are in a situation
to have wrenched from their muscu-
lar hands money with which to fill
up the private libraries of gentlemen
of learning and wealth. There are
two sides to this Question, there is
the question of what is a just com-
pensation, and then there is the
question of ability to pay, and both
must be considered in order to arrive
6
at a fair, just and equitable compen-
sation. I agree with all that has
been said that a fair compensation
should be paid, but I do not think
that even for the same order of tal-
ent a people poor in worldly goods,
nearly next to poverty stricken
should be called upon tp pay such
salaries as a state that is rolling in
wealth and whose taxpayers have
their hundreds and thousands of dol-
lars out at interest all over the land.
Why sir, there is not an improvement
within our state of any magnitude
but what the taxpayers of our state
are held to paj^ a large amount of in-
terest on the very investment. Where
has the money come from that has
built our railroads? Where has the
money come from that has built our
bridges? Where is the money drawn
from that is spanning the Platte at
one place and another with those
beautiful structures whj^ch connect
the north and the south of our state
together? Where does all this money
come from? It has been brought
from abroad, and the people
of the counties have been compelled
! to tax themselves until they are
fairly ground into the dust by exces-
j sive taxation, in order to draw these
funds from other states, in order that
these improvements may be carried
forward. How is it with our rail-
roads? Every county throughout our
state, through which a road has
passed, has been compelled to burden
itself with an overwhelming debt,
which shall gnaw and eat out the
very vitals of the people for yea.rs to
come, in order to induce that wealth
within our limits, look at the bonds
which have been issued and are to be
82
SALARY OF SUPREME COURT
Thursday]
LAKE
[July 27
Issued throughout the various coun-
ties and precincts to remunerate
those men who have been induced to
invest their monej- in our state. It
is easy for gentlemen looking only
at their own pockets, and not at the
pockets of those who are to pay, to
say that $4,000 or $5,000 will not
hurt the people. So you might say
of any expenditure in the state. When
the supreme court asked for an ap-
propriation to fix up the law library,
that the supreme court judges might
have a respectable library for them-
selves, and in order to enable them to
pass upon questions brought before
them with all the intelligence they
could acquire. And what response
did the appeal meet with? The an-
swer was "we are too poor; we can-
not afford it." $1,000 was all that we
asked, and the I'esponse was
founded in reason. It might be
truly said $1,000 was a small
«um, and would scarcely be felt.
But if that was the only sum,
Mr. Chairman, it might be true. And
these salaries; were they the only
salaries the people might stand it,
and would not feel it. But when you
accumulate all these little sums,
which, in themselves, do not amount
to much, when you take into consid-
eration the number of these sums
which are said to be so Insignificant
in themselves, when you aggregate
them, bring them together, and pre-
sent them to a people that is poor, to
a people that is already overwhelm-
ed with taxation, they will look to
them of huge proportions. And I
say to Rencl(Mnen upon tliis Moor if
they desire a new constitution; if
they desire a constitution which
shall be ratified and approved by the
people of this state, they must be
careful, exceedingly careful, how they
increase the expenses of the state
government. An estimate of the
proposed increase will show, Mr.
Chairman, that the aggregate al-
ready proposed by the reports of the
several committees, without increas-
ing them, will reach very nearly to
$50,000 for salaries alone. And,
then, when- you take into account the
various other expenses that must
necessarily be incurred, why, sir, the
aggregate sum which will be taken
from the hands of toil will be of such
magnitude, such huge proportions, as
will be perfectly appalling. If these
sums which I have mentioned have
secured the talent which has been
eulogized so highly by gentlemen
preceding me on this floor, in other
states, will it not have the same ef-
fect here? But, Mr. Chairman, the
whole question has been surrendered
by the gentlemen on the other side
of this question when they are forced
to the admission that what I declared
yesterday upon the floor, that the
same order of intellect, the same
degree of talent, the same men of
learning and ability, will be found
upon the bench of our state, with a
$3,000 salary per annum, that you
would find with $5,000. Let us be
considerate, Mr. .Chairman, let us
look this question squarely in the
face; let us weigh not only the wants
of the judiciary, but also the ability
of our people to pay; and if we do
our work wisely and well; if we re-
tain in this constitution, and provide
for a character of government which
shall not be too burdensome or op-
SALARY OF SUrKEME COCRT
83
Thursday]
LAKE— MANDERSON
[July 27
pressive, the people will say "well
done, good and faithful servants, "and
will ratify our acts. But if we show
a spirit of extravagance, and that we
are desirous of placing upon the su-
preme bench and in other positions
of trust within our state, persons
merely for the sake of ornament,
with little work and large pay; if,
in a word, they see we are determin-
ed and desirous of making a splendid
go\'ernment; one that shall shine, and
one that shall invite all the learning,
all the ability and all the erudition
that may be found in all the other
states, merely through the potent in-
fluence of the high salaries; if they
see we wish to foist upon them this
experiment, they will repudiate our
acts, they will throw our pretended
constitution back into our faces, and
say we were not worthy of the places
we had occupied as their servants on
this occasion.
Mr. Chairman, I believe I have
nothing further to say. I have en-
tered my protest against this scheme
of aggrandizing the oflicers of the
state, and supporting them in luxu-
ry when the taxpayers of our state
are in poverty; paying more than
they can afford to pay, already groan-
ing under the oppressive taxes of the
present hour; while they are asking
•every department of the govern-
ment at the present time, to practice
economy; while they are striving,
to the best they may, to acquire a
competence for the support of them-
selves and their families; while they
are doing all this they ask us here
"today to do what is just, and what is
Tight and no more. I believe that
$3,000 is ample. I believe that no
officer provided for in this constitu-
tion should receive more than that.
If it were desired that the salaries
be increased hereafter, when the
state is more able to pay, I would
not object to a provision which
should leave this increase to the ac-
tion of the legislative body, repre-
senting the people, coming from the
people, and representing them direct-
ly upon this subject. But today,
here, as a representative of the peo-
ple of the state, I do say that, in
my humble judgment, $3,000, as a
salary for the judges of the courts of
this state, is every cent the people
of the state can afford to pay, and all
that ought to be placed upon their
shoulders.
Mr. MANDERSON. I did not sup-
pose, Mr. Chairman, when this lit-
tle bantling of an amendment of mine
was thrown out upon the world that
it would receive such a warm recep-
tion; and I would be content that it
go to a vote, and say nothing on the
subject, were it not that I thought
it right that I should notice one or
two of the suggestions of the gentle-
man from Douglas (Judge Lake.)
And I propose to look at this subject
from the same standpoint that he
has considered it. First, from the
position of the servant of the people;
from the position of the office holder,
the judge; next, from the position of
the taxpayer. I do not know that I
could say anything to add to the able
arguments made by the gentleman
from Otoe (Judge Mason) and my
colleague (Mr. Woolworth) as to
what is expected of judicial officers,
and what they have the ^Ight to ask.
84
SALARV OF SUPREME COURT
Thursday 1
MANDKRSON
[July 27-
But I differ from my friend across
the way (Judge Lake) in the idea
that honor alone is sufficient com-
pensation for filling high office. True,
the position of Supreme Judge is
one very exalted and honorable; one,
as has well been observed, that is
worthy of the highest ambition of the
best men. But let us look for an in-
stant at the class of men who will be
selected for this great honor. They
are not young men, in the first place.
As a rule, they are selected from
men between the ages of thirty-five
to forty, and fifty-five to sixty. They
must be men of mature experience to
fill the position ably and well. They
must bring to the position exalted
views. They must bring to the posi-
tion great learning, and the ability,
the power of mind to grasp great
ideas and handle them well. Men of
that age, as a rule, are men of fami-
ly. They have depending upon them
wife and children. I have in my
mind now, a gentleman — and if I
would mention his name this conven-
tion, with one voice would agree with
me — who is eminently fitted to oc-
cupy the place upon the supreme
bench of this state. His locks are
silvered with age. In the pursuit of
his profession, he has not gathered
much of this world's goods. He is
poor in purse*, but rich in intellect.
He has that greater riches, a mind
richly stored with knowledge. He
has depending upon him, wife and
a number of children — five or six, I
believe. These children ranging
"from the sleeping child upon its
mother's bosom" (if my friend from
Otoe, Judge Mason, will imagine the
double quotation marks on each
side my mouth) to the youth about
springing into full fledged manhood.
These children demand of him more
than bread and butter; they demand
more than food for the body. They
demand food for the mind. It is his
duty to them, as much as it is his
duty to feed and clothe them, that he
should place them upon the high
plane of full, liberal education. His
boys clamor to be sent to the high
collegiate institutions of the country.
Dartmouth and Yale, Harvard and
Princeton, open wide their doors to
receive and welcome them. And it
is his duty to send them there, or to-
some other place where they can re-
ceive an education suitable to fit
them for their fight with the world.
His practice affords him an income
of, perhaps, six to ten thousand dol-
lars. If called to the bench, of course
he sacrifices this income. He is not
fitted to go into the busy marts of
commerce and strive for wealth and
the avenues of speculation are and
should be closed to him; he is de-
pendent upon his profession, and af-
ter he comes upon the bench, upon
his judicial salary. When his chil-
dren ask for those advantages which
are their due — when they ask for
that liberal education to which they
are entitled, shall he put them off
with "honor" — shall he feed them
with "honor?" My colleague. Judge
Lake, adopting the sentiment, if not
the language of olcj Sir John Fal-
staff, says, "Honor pricks me on." I
respond in the language of the same
fat old knight, "Ah! but honor may
prick you off too!" (laughter.) "Will
honor set a leg? No!" Will honor
buy books and bread for his children?
SALARIES OF SUPREME COURT
85
Thursday]
MANDERSON
[July
No! No, sir, money is the only pur-
chasing commodity. I don't believe
that a judicial officer can live as he
should live and give to his family
the advantages they have a right to
ask and demand of him on three
thousand dollars a year. I think the
figures at which I have put these
salaries are nearly correct. I think
the judges of the supreme court of
this state should be paid five thous-
and dollars per annum. I have tak-
en one view of the matter. Now let
us look at the subject from the tax-
payer's stand point. Let me say, in
the first place, that I believe this
body is a fair representation of the
people. We have here represented
all classes of society — all trades, all
professions. We have poor men
among us, and we have the rich
tax payer. I don't believe there will
ever be gathered in this state a body
of men who will better represent the
different classes of the people. Sup-
pose Mr. Chairman, we give the sala-
ries that we claim here should be
given — these salaries that the gen-
tlemen say are so high. Let us look
at facts and figures and see what will
be the result. Say we have eight
judges — five district judges and
three supreme judges. Suppose we
place these salaries at three thousand
dollars each per year. That is $2 4.-
000; we give the governor $4,000,
and the other executive officers of the
state their respective salaries, say
$2,500 each. It will foot up $45,-
500. Now suppose we add to that
sum one thousand dollars additional
for each of the supreme judges, mak-
ing their salary $4,000 instead of
;$3,000. Suppose we add $1,000 to
each of the district judges. That
makes eight thousand dollars more
and the whole amount foots up fif-
ty-three thousand five hundred dol-
lars. If you leave the district judges
at three thousand dollars, it leaves
th amount forty-eight thousand five
hundred dollars. Now Mr. Chairman
that is the amount that is suggested
should be paid by the amendment of
my colleague (Mr. Boyd). I may
say here, while I myself am in favor
of paying the judges of the supreme
court five thousand dollars, I think
the committee are not in favor of
it, and I will not therefore strenuous-
ly press my amendment. So then if
we pay the district judges $3,000, it
takes $48,500 to pay the salaries of
our officers each year. Now what is
the assessed valuation of the proper-
ty in this state? Forty-five million,
five hundred and twelve thousand
six hundred and fifty eight dollars.
One mill upon the dollar! one-tenth
of one per cent of the assessed valua-
tion of the property in this state will
pay these salaries! Now is this
such terrible taxation? We have a
population of one hundred and fif-
ty thousand people. Suppose we say
that the salaries amount to fifty
thousand dollars — which is more
than they do amount to according to
my showing, that is thirty-three
cents to the individual. Should this
affright us? Why this taxation for
these salaries don't come from the
poor people, but from the rich tax
payers. But are we so terribly poor?
Should we inscribe upon the banner
that is held forth to the world by
the emigration board, that we are so
poor that we cannot pay sufficient
so
SALARIES OF SUPREME COURT
MANDERSON-LAKE-ESTABROOK
[July 2T
salaries to our officers? But we are
not poor. We have here a greater
property valuation according to our
population and a larger public patri-
mony than any other state in the
union. We have here immense cor-
porations which will always be a
great source of wealth to us. The
taxes upon our railroad property will
give enough to pay these so called
"high salaries." But. it is said, we
should not pay high salaries because
other states pay low salaries. Now
let me say here, other states seeing
the wrong that is being done, are
raising the pay of their judges. In
1867, the salaries of the justices of
the supreme court of Ohio were rais-
ed to $3,000. When I left there, two
years ago, the people were clamor-
ing that these judges should receive
better pay.
Mr. LAKE. Does not the gentle-
man know that a proposition to raise
the pay of the judges of the supreme
couri to $5,000, was defeated?
Mr. MAXDERSOX. Yes sir, and I
know why it was defeated. It was
done by the same "broad guage"
deniagoguery that defeats valuable
propositions here, (Laughter.) In the
state of Iowa I am informed the sal-
ary of the supreme justice has been
raised to thirty-five hundred dollars.
In the state of Xew York the chief
justice gets $9,500 and the' associ-
ate justices $9,000. But sir, it was
suggested by my colleague (Mr.
Woolworth) that a large amount of
the salaries we propose to pay our
judges should be gathered from com-
niencenient fees. Xow the judiciary
rommittee. of which I have the hon-
or to be a member, was divided upon
several" subjects. There was no mi-
nority report, it is true, but it was
understood that that which did not
suit the minority would be discuss-
ed by that minority in the committee
of the whole, or in convention; but
in the matter of commencement fees,
we thought, generally, they should
be continued. If we retain the pro-
vision regarding commencement fees,
in our constitution, their collection
will go a great ways toward paying
the salaries of the judicial officers.
This great outcry, that the people are
being "trampled down by taxation
from high salaries" is simply trash.
I hope the amendment will prevail.
The CHAIRMAN. The question is
upon the amendment offered by the
gentleman from Douglas, (Mr. Man-
derson) to make the salaries of the
supreme judges $5,000 instead of
$4,000.
The amendment was not agreed to.
Mr. ESTABROOK. Mr. Chairman.
I have but a word to say upon this
question; but I think I would take
the opportunity, after having suffici-
ent time to recover from the con-
dition of repose and calm satisfaction
into which I was thrown by the
sweet tones of the silvery voices of
my colleagues — I say, I think I
would take the opportunity of con-
gratulating my self upon the fact
that I belong to a profession which is
so supremely above all the consider-
ations which influence ordinary
minds (Laughter.) What extrava-
gant phrases shall be poured forth
by the gentleman who sits upon my
right (Mr. Campbell) upon the learn-
ing of the profession to which he be-
SALARIES OF SUPREME COURT
S7
Thui-bdiiyl
ESTABROOK-MASON
[July 27
longs and then too, I think I can see
in the endeavor to put this through
that the man who makes the great
pow-wow will have his salary in-
creased so that all the learned gentle-
men may be upon a par with the oth-
er officers of the state. It is asked
that the salaries may be increased
not only to support their large fami-
lies, but to send their children to
Harvard and Dartmouth. The chil-
dren of some must be sent away to
be educated, while others must dig
in the prairies of Nebraska for an
honest livelihood, to support these
large salaries perchance. I know the
legal profession is a large one. There
are in this state 300 of them in this
state making a living, and we have
to pay to these about $1,000 a year
each. I happen to know that it
don't take much longer to make a
lawyer than to make a good tanner
and currier. There were two men
in the state of Wisconsin, one of
them was a lawyer and the other was
a tanner, who got into a dispute
about a point of law. Well they dis-
puted for some time. "Well," said
the lawyer finanlly, in order to
clinch the matter and put an end to
all question and controversy, "my
friend, I will stake my reputation as
a lawyer, that it is so." "Well,"
said the other, "I'll stf^ke my reputa-
tion as a tanner and currier it is not
so," and he was right.
Well now^ is there anything about
the fact that it takes a lawyer to fill
the position. We all know under the
practice of our law a lawyer is only
expected to show that he has read
two years and passed through a very
cursory examination, and he can
then take this title upon him. Now,
sir, what are some of the duties of
this learned profession? Why sir,
there is a guide board at every turn
to point out the way, so that the
merest tyro can understand and ex-
pound it. You will find there is
scarcely a question can arise which
has not been passed upon over and
over again; and let me suggest that
these great duties have not been se-
cured by high paid salaries; perhaps
the greatest argument that ever was
made, was that referred to here to-
day, made by Webster on that occa-
sion and that he volunteered to do
without a cent of pay. Since refer-
ence was made to this decision
this morning I went down to see
what chief justice Marshall received
at that time and found it was
$4,000.
Mr. MASON. Would not $4,000 at
that time be more than $10,000
would be now?
Mr. ESTABROOK. No sir. Now
that leads me to make this remark.
Since that time many of the states
have increased the salary of its of-
ficers on account of higher prices, but
that caur:; no longer exists; prices
have come down but salaries have
not. I don't plead poverty for this
state nnd ask that these salaries
shall be made low on that account,
no sir, I stand here today to say that
the state of Nebraska has greater re-
sources today than any other state in
the I'.nion with but few exceptions,
and she can well afford to have every
thing she wants and needs and if I
could be induced to believe that we
S8
SALARIES OF SUIMIEME COURT
Thursday]
MANDERSON-ESTABROOK
[July 27
could get better talent by making
this salary above the usual rates I
should support it. I don't suppose
that any individual will desire to
take upon himself this position for
the purpose of educating his children
at Harvard, if so I say he had bet-
ter invest his capital in railroad
bonds or something that will pay
better, — If as the chief justice him-
self says he can perform these du-
ties in six months. Let them spend
the six months in the education of
their children at home and I don't
see but what they might spend about
three months gratuitously in giving
instruction or lectures in some of the
schools of the state.
Mr. MANDERSON. Will the gen-
tleman permit me to ask him a ques-
tion?
Mr. ESTABROOK. Certainly. I
will; I am not making a speech.
I do not understand how it is that
the lawyers all rush to the res-
cue and insist that their services are
so far superior to the service of
everybody else. I am glad to hear it.
I know that the profession is an
honorable one, superior to all others
in the estimation of the world. I
will undertake to say that any man
of ordinary ability can within a
reasonable length of time and within
the same length of time it takes a
man to make a basket qualify him-
self in the fundamental principles of
law. What do you think of a jury-
man? He does not have to be ex-
ceedingly learned. He is the man
who detides your cases, he is a man
who perhaps never opened a law
book except to read the herd law and
scarcely understands which is the law
among the multitudes of them, or
how to construe it when he finds it.
As a juryman he has opened before
him the books of the law, he is
made to apprehend, it takes no great
learning to understand the principles
of right and wrong. You take
three boys from one family, one is a
farmer, one is made a lawyer and the
other peradventure is a doctor, they
are all about smart alike, all have
pretty good sense, but when you
come to adjust the payments of sala-
ries and the like, you pick up the
fellow that had taken up the legal
profession and say he shall have such
a salary as shall enable him not only
to live without work six months in
the year, but educate a large family
at Harvard. Well I am in favor of
the first report, it secures the best we
have. I will not suppose sir, that in
filling these benches individuals shall
be selected and taken frona a large
practice, a large practice is not al-
ways an indication of fitness to fill
a supreme bench or other bench. In-
dividuals acquire practice through in-
fluential friends. I know a man who
brought money, loaned it out and
forclosed mortgages and with the
little amount of law he possessed has
acquired not only reputation as a
lawyer, which I do not think he de-
serves, but has at the same time
brought wealth into his exchequer.
Thus it is he becomes a noted prac-
: titioner, and it is said he would not
leave his business to fill any position
on the bench. It is not his great
learning that has brought him repu-
tation or wealth, simply circum-
stances. I have been in the frontier
SALARIES OF SUPREME COURT
89
■Thursday]
ESTABROOK- MASON
[July 27
all my life, and the best judges I
have ever seen upon the bench were
those who were educated there, men
who had hardly any practice, be-
cause it needs one kind of education
to be a practitioner at the bar and
another to be a judge at the bench.
The best judges I have seen are those
coming without any great eclat as
practitioners, they are the best men
I ever saw sitting on a bench. I was
told the other day by Mr. Woolworth
that the regents, a very important
position in the state of New York
were appointed for life and discharge
very important duties there without
so much as one cent. It would be a
matter of sincere regret to me that
my friend from Otoe (Mr. Mason)
should ever think for a moment of
leaving the bench he so adorns,' but
if he can make more practicing his
profession of course he should adopt
it if he cannot live without educat-
ing his children as he desires. If his
statements upon this floor be true
that even while a member of the su-
preme bench and at the same time do-
ing circuit duty in one of the largest
■circuits in tlie state, if he can still get
six months of the year to himself, I
wonder if he cannot bring some of
that extra learning of his to bear in
his own family so as to save the nec-
essity of sending his children to Har-
vard. It was the course adopted by
Benton, I think he had not a child
'that he did not educate himself.
Mr. MASON. Now Mr. Chairman,
for a single moment I desire to ex-
pose the speciousness of what has
been enlarged upon. When the gen-
tleman talks about men educating
their ,own children and at the same
time delving into the knowledge of
the law, he talks what he knows in
his heart has not the slightest foun-
dation in truth. It is not for myself
I speak, it is for every property hold-
er in this state. It is sir, for the life,
liberty of person and the security of
character, and sir, let me say, men
may talk as they may but hunger is a
dangerous counselor, and to place a
judge in a position where he is
straightened in his money circum-
stances at every crook and turn of
life is most dangerojis for the securi-
ty of social order. And sir, were I
to step aside and travel over this
whole field and ask what you pay
your representatives and senators in
congress. What ability, learning
and experience do they bring to bear
that oversteps and outrides that
brought to the bench by my learned
associate from Douglas (Mr. Lake).
You pay those men $5,000 or $10,-
000 a year with less ability, learn-
ing and experience, do less for the
public safety, who touch not the
security of character or person
and yet that is not too much, and yet
these gentlemen stand here to plead
for penurious salaries for the very
men that are laying the foundations
of social order and law. Let us pay
in proportion to the services render-
ed. Will any gentleman tell me from
the Douglas delegation; will that
gentleman himself tell me that Jus-
tice Lake has not earned for this
state at least $5,000 per year ever
since he has adorned the bench in
the second circuit. If there is a man
that will say that, let him stand in
his place and speak, and it is not.
;h»
SALAKIF.S OF SUPREME COURT
Thursday 1
MASON-ESTABROOK
lJuly27
Mr. Chairman, that I would give sala-
ries to cdiuate my children at Har-
vard. No. si:-. I would not do it if
I could. I would not dwarf the
mind any more than I would the
body. I would learn them in the
school of toil as well as in the school
of culture. When gentlemen resort
to such specious and lame arguments
as this it becomes me to expose the
utter fallacy of the principle they
contend for. Why, put in the bal-
ance, weigh the services of this gen-
tleman I have alluded to against your
senators and congressmen; against
your governor, or against any of
the.«e men, r.nd tell me if he has not
toiled night and day, early and late,
to establish firm and secure the
rights of property, and life and
character, and it is by his efforts that
people of today retire tonight secure
in the possession of their property.
And yet, you pay $3,000 for one,
and $10 000 for the other! Now, sir,
I would not go to the extreme on
either side. I say the people, every-
where, demand that these judicial of-
ficers be paid sufficient to keep their
families and libraries, and not that
they shall become teachers of infants
schools: but that they shall study
night and day to acquire a knowl-
edge of the law. Besides, sir, what
man. gentlemen of this convention,
will do that unless you do pay him.
You can get men for $3,000 a year,
who will turn infant school teachers
for six months of the year; but that
Is not what the people demand. They
want the man that shall be teacher
of himself in a knowledge of the law
for the twelve months of the year. I
simply make these remarks to ex-
pose the inherent fallacy of the gen-
tleman's argument. He knows that
no men are born lawyers. It is a
knowledge only accomplished by con-
stant toil. One other fallacy, and
it was amusing to me — a gentleman
who knows the law, and knows that
no .iury in the land has any right to
declare the law, they find and de-
termine the facts. They take the law
from the oracle of the law, the judge
speaking from the bench
Mr. ESTABROOK — Not in privy
cases.
Mr. MASON. — Aye, in every case,
for them to override the law and
trample the instructions of the court
under their feet is to violate their
oaths. This they have the physical
ppwer to do. They always have had
that power. But they have no legal
right to do so. So says Justice Story,
in a note in Greenleaf on Evidence;
so says Marshall and so says Kent,
and they ought to know about as
much about the law in this regard as
the gentleman from Douglas. And
no law writer has ever said anything
else, but that they have the physical
power to disregard the law as declar-
ed by the court, but not a legal right
to do. If their salaries could do it I
would establish a rule of law that
should be just as stable and fixed as
the laws of nature which should be
a rule of right changed only to meet
the wp.nts of society in its progres-
sive advance to that better day when
all shall know and do the right; that
should be as certain as the decrees of
Nature itself. And to do this I would
have no infant school teachers. I
would have a man that devoted his
SALARIES OF SUPREME COLtRT
91
Thursday]
HASCALL— STRICKLAND-BOYD
[July 27
whole time to study of the law and if
he wanted to teach infant schools,
and read psalms and sing hymns, I
would not want him for my judge.
Mr. HASCALL. I move that the
committee rise, report progress , and
ask leave to sit again.
The motion was not agreed to.
The CHAIRMAN. The question
occurs on the amendment of the gen-
tleman from Douglas (Mr. Mander-
son.)
Mr. MAXDERSOX. I withdraw it.
The CHAIRMAN. The question
now is on the amendment of the gen-
tleman from Douglas (Mr. Boyd),
making the salaries of the judges of
the supreme court $4,000, and the
judges of the district courts $3,000.
Mr. STRICKLAND. I call for a
division of the question before the
vote is taken.
The CHAIRMAX. The chair will
state that the amendment of the gen-
tleman from Douglas does not pro-
pose to change the salaries of the
judges of the district courts.
Mr. STRICKLAND. I understand
that the question ought simply to he
on the salary of the supreme judges.
Mr. MANDERSON. Let me sug-
gest. I think we ought all to have
the right to vote first on the salary
of the supreme judges, and then up-
on the district judges.
The CHAIRMAX. The chair will
state that this only relates to the
salary of the supreme judges.
The committee divided and the
motion was lost by 22 to 26.
The CHAIRMAX. The question is
upon section thirteen, as reported by
the committee.
Mr. STRICKLAXD. T move to
amend by inserting $3,500 instead
of $3,000, to apply to supreme
judges.
Mr. BOYD. I move an amend-
ment to the amendment, to strike out
$3,000 in the first line and insert
$3,500.
Mr. STRICKLAXD.
difference?
What is the
Mr. BOYD. Mine refers to both;
yours only to supreme judges.
The motion to make the salary of
the supreme judges $3,500 was
agreed to.
Mr. KIRKPATRICK. I move the
committee do now rise, report pro-
gress, and ask leave to sit again.
The motion was not agreed to.
Mr. WILSOX. I move that the
section as amended be now adopted.
Mr. GRAY. I move one further
amendment. That after the words
"district courts," in the first line,
"shall each receive a salary of $3,-
500."
Mr. Gray's amendment was not
agreed to.
Mr. BOYD. I move to strike out
"$3,000" and insert "$2,500." I am
in favor of small salaries, if there is
to be this trouble.
U2
SALARIES OF SUPREME COURT
Thursday]
K[RKPATRICK-ROBINSON-WAKELEY
[July 27
Mr. STRICKLAND. I hope the
gentleman will not lose his temper.
The motion of Mr. Boyd was not
agreed to.
Mr. LEY. I move the committee
rise, report progress, and ask leave
to sit again.
Mr. KIRKPATRICK. I move to
insert the words "increase or."
The CHAIRMAN. The amend-
ment offered by the gentleman from
Cass is to insert the words "increase
-or."
Mr. KIRKPATRICK. Mr. Chair-
man. It seems to me provision
should be made that salaries should
not be increased.
Mr. ROBINSON. Mr. Chairman.
I understand there is a provision
somewhere which provides for a re-
vision of all salaries of officials. I
think this is a better way to regulate
the matter than to do as we are do-
ing.
The CHAIRMAN. The question is
■upon the amendment of the gentle-
man from Cass (Mr. Maxwell) to in-
sert the words "increase or."
The amendment was agreed to.
Mr. WAKELEY. Mr. Chairman. I
"Wish to move an amendment by strik-
ing out the words, in the second line,
"until otherwise provided" and in-
sert, "unless increased." The sec-
tion now reads that the judges shall
receive the salary which we have
fixed until otherwise provided by
law. Under that law it would be.
unquestionably, within the province
of the legislature to diminish; to
that I am opposed. I would not give
the legislature the authority to di-
minish a salary which we have fix-
ed; in other words, if a minimum is
adopted the salary which we have
fixed shall be the minimum, and
while the legislature may increase
it, it cannot diminish. I think the
committee will agree to that.
Mr. WEAVER. Mr. Chairman. I
move the committee rise, report pro-
gress, and ask leave to sit again.
The motion was agreed to.
Mr. McCANN. Mr. President. The
committee have had under consider-
ation the report of the judiciary
committee and beg leave to report
progress and ask leave to sit again.
Adjournment.
Mr. LEY. Mr. President. I move
we adjourn until two o'clock.
The motion was agreed to.
So the convention (at twelve
o'clock and twenty-two minutes)
adjourned.
Afternoon Session.
The convention met at two o'clock
and was called to order by the presi-
dent.
Engrossment.
Mr. REYNOLDS. Mr. President.
Your committee on engrossment, beg
leave to report that they have ex-
amined the Bill of Rights and find It
correctly engrossed.
EIGHTS OF SUFFRAGE
93
Thursday^
MAXWELL— MOORE— MYERS
[July
Rights of Suffrage.
Mr. MAXWELL. Mr. President.
Your committee on Rights of Suffrage
to whom was recommitted the article
on rights of suffragei, beg leave to re-
port that they have to report that
they have had the same under consid-
eration, and report the same back
without any change, and ask that it
be adopted..
The report was referred to the
committee of the whole.
The following is, the report.
Section 1. Every male person of
the age of tewenty-one years or up-
wards, belonging to either of the fol-
lowing classes who shall have resid-
ed in the state, county, precinct and
ward for the time provided by law
shall be an elector.
First.
States.
Citizens of the United
Second. Persons of foreign birth
who shall have declared their inten-
tion to become citizens conformably
to the laws of the United States on
the subject of naturalization.
Sec. 2. The legislature may ex-
tend by law, the right of suffrage to
persons not herein enumerated, but
no such law shall be in force until
the same shall have been submitted
to a vote of the people at a general
election, and approved by a majority
of all votes cast on that question
at such election.
Sec. 3. No person under guardian-
ship, non compos mentis or insane,
shall be qualified to vote, nor shall
any person convicted of treason or
felony unless restored to civil rights.
Sec. 4. No elector shall be deemed
to have lost his residence in the state
by reason of his absence on business
of the United States, of this state, or
in the military or naval service of the
United States..
Sec. 5. No soldier, seaman or
marine in the army or navy of the
United States shall be deemed a resi-
dent of this state in consequence of
being stationed therein.
Sec. 6. Electors shall in all cases,
except treason, felony or breach of
the peace, be privileged from arrest
during their attendance at elections,
and going to and returning from the
same. And no elector shall be oblig-
ed to do military duty on the days of
election, except in time of war or
public danger.
Sec.
lot.
7. All votes shall be by bal-
3Iiscellaneous Corporations.
Mr. MOORE. Mr. President. I
would offer a report from the com-
mittee on Miscellaneous Corpora-
tions.
The secretary read the report as
follows:
(No Copy.)
The report was read the second
time by its titlo, ordered printed and
referred to the committee of the
whole.
Mr. MYERS. Mr. President. I
move the convention proceed to the
consideration of the Bill of Rights
to prepare it for its third reading
and adoption.
The motion was agreed to.
The PRESIDENT. The article
will be read the third time and put
upon its passage.
k
H-l
JULL OF RIGHTS
Thursday I
[July
The secretary read the article as
follows:
THE CONSTITUTION OF THE
STATE OF NEBRASKA.
PREAMBLE.
We the people of the State of Ne-
braska, srateful to Almighty God for
the civil, political and religious lib-
erty which He hath so long permit-
ted us to enjoy and looking to Him
for a blessing upon our endeavor to
secure and tr-.\nsmit the same unim-
paired to succeeding generations, in
order to form a more perfect govern-
ment, establish justice^ insure domes-
tic tranquility, provide for the com-
mon defence, promote the general
welfare, and secure the blessings of
liberty to ourselves and posterity do
ordain and estnblish this constitu-
tion for the state of Nebraska.
ARTICLE 1ST.
BILL OF RIGHTS.
Sec. L All men are by nature
free and independent and have cer-
tain inherent and inalienable rights,
among these are life, liberty, and the
pursuit of happiness. To secure
these' rights and the protection of pro-
perty governments are instituted
among men deriving their just pow-
ers from the consent of the gov-
erned.
Sec. 2. No i)erson shall be de-
prived of life, liberty, or property,
without due process of law.
Sec. o. The free exercise and en-
joyment of religious profession and
worship without discrimination shall
forever be guaranteed; and no per-
son, shall be denied any civil, or po-
litical right, privilege or capacity on
account of his religious opinions, but
the liberty of conscience hereby se-
cured shall not be construed to dis-
pense with oaths or affirmations, ex-
cuse acts of licentiousness or justify
practices inconsistent with the peace
and safety of the state. No person
shall be required to attend or sup-
port any ministry or place of wor-
ship nor shall any preference be giv-
en by law to any religious denomi-
nation or mode of worship.
Sec. 4. Every person may freely
speak, write and publish on all sub-
jects, being responsible for the abuse
of that liberty, and in all trials for
libel, both civil and criminal, the
truth when published with good
motives and for justifiable ends, shall
be a sufficient defence.
Sec. 5. The right of trial by jury
as heretofore enjoyed shall remain
inviolate, but the trial of civil cas-
es and misdemeanors before justices
of the peace and inferior magistrates
by a jury of less than twelve men
may be authorized by law.
Sec. G. The right of the people to
be secure in their persons, houses,
papers and effects against unreason-
able searches and seizure shall not
be violated and no warrant shall is-
sue without probable cause supported
by affidavit particularly describing
the place to be searched and the per-
sons or things to be seized.
Sec. 7. All persons shall be bail-
able by sufficient surety except for
treason and murder where the proof
is evident or the presumption great,
and the privilege of the writ of ha-
beas corpus shall not be suspended
unless where in case of rebellion or
invasion the public safety may re-
quire it.
Sec. 8. No person shall be held
to answer for a criminal offense ex-
cept in cases in which the punish-
ment is by fine or imprisonment,
otherwise than in the penitentiary,
in cases of impeachment and in cases
arising in the army and navy or In
the militia when in actual service
in time of war or public danger un-
less on a presentment or indictment
of a grand jury or information of a
BILL OF RIGHTS
95
Thursday]
[July 27
public prosecutor and provisions
shall be made by law for the impan-
nelling of grand juries whenever the
respective courts or the judges shall
order.
Sec. 9. In all criminal prosecu-
tions the accused shall have the right
to appear and defend in person and
by counsel, to demr.nd the nature*
and cause of the aecusation and to
have a copy thereof, to meet the wit-
nesses face to face, and to have pro-
cess to compel the attendance of wit-
nesses in his behalf, and a speedy
public trial by an impartial jury of
the county or district in which the of-
fense is alleged to have been com-
mitted.
Sec. 10. No person shall be com-
pelled in any criminal case to give
evidence against himself, or be twice
put in jeopardy for the same of-
fense.
Sec. 11. All penalties shall be
()roportioned to the nature of the of-
fense and no conviction shall work
corruption of blood or forfeiture of
estate, nor shall any person be trans-
ported out of the state for any of-
fense committed within the same, nor
shall cruel and unusual punish-
ments be inflicted.
Sec. 12. No person shall be im-
prisoned for debt arising out of or
founded on a contract express or im-
plied, except in case where there is
strong presumption of fi'aud.
Sec. 13. Private property shall
ever be held inviolate but subservient
to the public welfare. When taken
or damaged in time of war or other
public exigency imperativelj' requir-
ing its immediate seizure or for the
purpose of making or repairing roads
which shall be open to the public
without charge, a compensation shall
be made to the owners in money and
in all other cases a compensation shall
be first made in money or first se-
cured by a deposit of money. Such
compensation shall in every case be
without deduction for benefits to any
property of the owner and when not
made by the state shall be assessed
by a jury in such manner as shall be
prescribed by law. The fee of lands
taken for railroad tracks without
the consent of the owners thereof
shall remain in such owners subject
to the use for which it was taken..
Sec. 14. No ex post facto law, or
law impairing the obligation of con-
tracts or making any irrevocable
grant of special privilege or immuni-
ties shall be passed.
Sec. 15. The military shall be
in strict subordination to the civil
power.
Sec. IG. No soldier shall in time
of p?ace be quartered in any house
without the consent of the owner,
nor in time of war except in the man-
ner prescribed by law.
Sec. 17. The people have a right
to assemble in a peaceable manner to
consult for the common good, to make
known their opinions to their repre-
sentatives and to apply for a redress
of grievances.
Sec. 18. All elections shall be
free and there shall be no hindrance
or impediment to the right of a
qualified voter to exercise the elec-
tive franchise.
Sec. 19. Treason against the
state shall consist only in levying war
against the state or in adhering to
its enemies giving them aid and
comfori. No person shall be convict-
ed of treason unless on the testimony
of two witnesses to the same overt
act or on confession in open court.
Sec. 20. The writ of error shall
be a writ of right in all cases of fel-
ony and in all capital cases shall
operate as a supersedeas to stay the
execution of the sentence of death
until the further order of the su-
preme court in the premises.
Sec. 21. The privilege of th©
•.♦G
BILL OF RIGHTS
Thursday]
[July
debtor to enjov the necessary com-
forts of life shall be recognized by
whoU'sonie laws exempting a reason-
able amount of property from seiz-
ure or siile for the payment of any
debts or liability.
Sec. 2 2. Aliens who are or may
hereafter become bonafide residents
of this state, shall enjoy the same
rights in respect to possession, enjoy-
ment and inheritance of property as
native born citizens.
Sec. 23. All courts shall be open
and everv person for an injury done
him in his land, goods, person or
reputation, shall have remedy by due
course of law, and justice adminis-
tered without denial or delay.
Sec. 24. A frequent recurrence
to the fundamental principles of
civil government is absolutely neces-
sary to preserve the blessings of lib-
erty.
Sec. 25. The powers of the govern-
ment of this state are divided into
three distinct departments, the leg-
islative, executive and judicial, and
no person or collection of persons
being one of these departments shall
exercise any power properly belong-
ing to either of the others except as
herf'inafter expressly directed or
permitted.
Sec. 2C. This enumeration of
rights shall not be construed to im-
pair or deny others retained by the
people and all powers not herein
delegated remain with the people.
The PRESIDENT. This is the
third reading of the bill. The ques-
tion is on its adoption. The secre-
tary will call the roll.
The secretary called the roll and
the President announced the result:
Yeas, 45, as follows:
YEAS.
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirk Patrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Mason,
Manderson,
Maxwell,
Moore,
Myers,
Neligh,
Philpott,
Newsom,
Price,
Reynolds,
Scofield,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,
Abbott.
Rallard,
Boyd,
Campbell,
Curtis,
Eaton,
ABSENT OR NOT VOTING.
Cassell Robinson,
Grenell, Spiece,
Parchin, Mr. President — 7.
Parker,
The PRESIDENT. Tho question i&
on the adoption of the preamble.
The Preamble was adopted.
The PRESIDENT. The question
now is on referring the article to
the committee on revision and ad-
justment.
The article was so referred. NEM
CON.
Committee of the Whole.
Mr. GRAY. I move that the con-
vention go into committee of the
whole on the article entitled judici-
ary.
The motion was agree to, so the
convention went into committee of
the whole. Mr. McCann in the chair.
The CHAIRMAN. The question
is upon the amendment of the gen-
PERQUISITES FOEBIDDEN JUDGES
97
Thursday]
HASCALL— WAKELY
[July 27
tleman from Douglas to strike out
the words "until otherwise provid-
ed," in the second line, and insert
"unless increased by law."
The committee divided and the
motion was not agreed to.
The thirteenth section as amended
was adopted.
The secretary read the next sec-
tion as follows:
Sec. 14. No judge of the supreme
or district courts shall receive any
other compensation, perquisite or
benefit in any form whatsoever, nor
perform any other than judicial du-
ties to which may belong any
emoluments.
Mr. LAKE. If the section con-
veys the idea that the committee had
in view, it is that the legislature
cannot provide that judges of the
supreme courts shall perform some
trivial duty as an excuse for giv-
ing a large increase of com-
pensation. There have been endeav-
ors, in times past, to provide that
judges and other oflBcers may per-
form some duties outside their legiti-
mate duties, and as a compensation
therefor provide a large increase of
pay.
The fourteenth section wa's adop-
ted.
Mr. HASCALL. Mr. Chairman,
yesterday we passed over a section
for the time being; and I propose now
to take it up. It was the plan for
dividing the state into districts.
Mr. WAKELEY. Mr. Chairman.
I do not see how that can be offered
without permission of the commit-
tee, after we have once passed. We
are entitled to go through the article
and I hope we shall do so.
Mr. HASCALL. This was only
passed over for the time-being. Since
then the matter has been thought of
and plans matured. And as we
have to finish it before we report it
back to the convention, it would be
well enough to take it up now. I
therefore move that we take up that
article now.
Mr. ESTABROOK. The true prac-
tice is, I believe, to pass through,
section by section, and when we have
concluded, that the bill is open to
amendment in all its parts. And I
would suggest to my colleague
whether that is not the best way to
reach it?
Mr. HASCALL. We have neglect-
ed to comply with that rule now,
and by general consent we passed
by "for the time-being." This section
has not been considered and acted
on. Before the whole is taken up,
we must consider every section. We
have not considered every section.
Mr. KIRKPATRICK. I hope the
convention will proceed to the con-
sideration of this report, and we will
return to the section. There was a
reason why we postponed it. The
gentleman says he has a plan: Others
may not.
The committee divided, and the
motion was not agreed to.
The Chairman read section fifteen,
as follows:
Sec. 15. There shall be elected
in and for each organized county on©^
98
COUNTY JUDGES
Thursday]
HASCALL-KIRKPATRICK-THOMAS
[July 27
judge, who shall be judge of the
county coiMi of such county, whose
term of office shall be two years.
Mr. THOMAS. Mr. Chairman. I
move to amend this section^ by ad-
ding "but the legislature may create
districts of two or more contiguous
counties, in each of which shall be
elected one judge, who shall take the
place of and exercise the powers of
jurisdiction of county judges in such
districts." I will state that that is
copied from the Illinois constitu-
tion.
Mr. LAKE. I do not know that I
am opposed to this proposition to
amend. I will say that at one time
a majority of the judiciary com-
mittee adopted this precisely, but up-
on a re-consideration of the matter
it was stricken out. The committee
was about equally divided as to the
propriety of the amendment offered
by the gentleman from Nemaha.
Mr. THOMAS. I will state that
the object is that in cases where a
county has not a sufficient population
to justify the organization of a court
in that county, the legislature may
provide that several counties may be
united, and make one district, and
have one county judge to pi-eside
over that district.
The committeee divided and the
amendment was agreed to.
Mr. WAKELEY. Mr. Chairman.
I move to strike out the word "two"
in the first line and insert "four."
Mr. MYERS. Mr. Chairman. I
move to strike out the word "four"
•and insert "nine." so that it shall
read "nine years" instead of "four
years."
The CHAIRMAN. The question is
upon the amendment to the amend-
ment of the gentleman from Douglas.
The amendment to the amendment
was not agreed to.
The CHAIRMAN. The question
now recurs upon the amendment.
Mr. WAKELEY. Mr. Chairman.
I think that the term of office of a
judge of a court of record, as these
county courts will be, should be not
less than four years. It will be remem-
bered that you make these county
courts, courts of record, and that you
give them considerable jurisdiction,
that to a considerable extent they take
the place of district courts. Every-
body knows that if a judge is at all
fit for his office he is a better judge
at the end of two years than before.
I would not make the term of office
so long that the people cannot get
rid of a poor judge, if they should
elect a poor one, nor would I have
the judge constantly changing. I
think four years is a very just medi-
um between the two extremes.
Mr. HASCALL. Mr. Chairman.
There is no reason why we should in-
sert an amendment like that in the
constitution. It will create confusion
and will clash with the election of
judges as provided by our present
law.
Mr. GRIGGS. Mr. Chairman. I
hope the amendment offered by the
gentleman from Douglas (Mr. Wake-
ley) will not prevail. If we have a
good judge, we can re-elect him and
JUKISDICTION OF COUNTY COURTS
99
Thursday]
HASC ALL— GRIGGS
[July 27
if not we can get rid of him at the
end of two years. Two years is the
term of ofSce of the other county of-
ficers. Suppose, for instance, there
was two or more counties joined into
one district and the term of office of
the judge of that district had three
years to run, when it was found that
the county was fully up so that each
county was entitled to its judge. It
seems to me that it places things
in a very bad box. I believe a term
of two years will suit the people in
the western counties much better
than four years. If we succeed in
electing a good judge we can re-elect
him. I hope that the amendment
to make his term of office four
years will not prevail.
The CHAIRMAN. The question
is upon the amendment to strike out
two years and insert four years.
The amendment was not agreed to.
The CHAIRMAN. The question is
upon the adoption of the section.
The 15th section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 16. County courts shall be
courts of record, and shall have ori-
ginal jurisdiction in all matters of
probate, settlement of estates of de-
ceased persons, appointment of guar-
dians and settlement of their ac-
counts, in all matters relating to ap-
prentices, and in proceedings for the
collection of taxes and assessments.
and such other jurisdiction as may be
given by general law; provided, that
in counties having a population of
three thousand and upwards, the leg-
islaturv5 may confer upon said courts
jurisdiction in sales of real estate
by executions, administrators and
guardians. But they shall not have
jurisdiction in cases of felony, nor
in actions in which the title to real-
estate is sought to be recovered, or
may be drawn in question, nor in ac-
tion on mortgage, or on contracts
for the conveyance of real estate, nor
when the debt or sum claimed shall
exceed five hundred dollars.
Mr. KIR KPATRICK. Mr. Chairman
I would suggest that there is a mis-
take in the sixth line; the word
"executions" is substituted for the
word "executors."
Mr. THOMAS. That is a typo-
graphical error.
The CHAIRMAN. It will be cor-
rected by common consent. The
word "sales" in the same line should
read "sale." That mistake will also
be corrected in the same way.
Mr. THOMAS. Mr. Chairman. It
seems to me a constitution should be
clear and explicit and I think this
section is not quite so much so as it
might be. I therefore move to
amend by striking out the words
"cases of felony" in the 7th line, and
inserting the words "criminal ca-
ses in which the punishment may ex-
ceed six months imprisonment or a
fine of over $500."
The CHAIRMAN. The question
is upon the amendment of the gen-
tleman from Nemaha (Mr. Thomas.)
Mr. LAKE. Mr. Chairman. The
object in using the word "felony"
was to enable the legislature to con-
fer such jurisdiction, in criminal
cases upon these courts as they
should see fit, but in no case
to give these courts jurisdic-
100
.lURISDICTION OF COUNTY COURTS
Tharsday!
THOMAS-r'AKE-SCOFMELD
July 27}
tlon when the punishment is confine-
ment in the penitentiary, but not
greater than that. I think the word
"felony" indicates that class of cases
when the punishment is by imprison-
ment in the penitentiary at least.
Mr. THOMAS. Mr. Chairman. I
understand that the common law
definition of the word felony is "a
crime which is punishable by for-
feiture of goods and chattels. When
there is no statute, we have to re-
sort to the common law to find the
definition. It seems to me the sec-
tion is defective and we should put
some words to this effect, stating
what the punishment shall be.
Mr. LAKE. Mr. Chairman. I
would like to ask the gentleman if
the word "felony" is not defined
by our own law, and further, if un-
der our present form of government
we have any such thing as "for-
feiture of estate."
Mr. THOMAS. We have not, but
when we have no statute upon it we
cannot find out the definition of
terms without resorting to the com-
mon law.
The CHAIRMAN. The question is
upon the amendment of the gen-
tleman from Nemaha (Mr. Thomas.)
The amendment was agreed to.
Mr. SCOPIELD. Mr. Chairman. I
move to strike out in the ninth line
the words "five hundred" and insert
"one thousand."
The committee divided and the
amendment was not agreed to.
The CHAIRMAN. The question is
on the adoption of the section.
Section sixteen was adopted.
Mr. WAKELEY. Mr. Chairman.
Before the next section is read I de-
sire to offer an amendment to be
adoptetd as a separate section.
The Chairman read
ment as follows:
the amend-
"Appeals to the district courts
from the judgment of the county
courts shall be allowed in all crimi-
nal cases on application of the de-
fendant, and in all civil cases in
which the amount in controversy
does not exceed one hundred dollars
and in such other cases as the legis-
lature may provide."
Mr. GRIGGS. I move to amend
the section offered by the gentleman
from Douglas (Mr. Wakeley) by
striking out the words "one hun-
dred" and inserting "twenty-five."
The amendment was agreed to.
Mr. SCOPIELD. Mr. Chairman. I
move to insert the words "upon the
application of either party," in civil
cases.
Mr. GRIGGS. Mr. Chairman. Will
that interfere with the giving of ap-
peal bonds in civil cases.
Mr. WAKELEY. I will state, Mr.
Chairman, the only object of the
section is to make it obligatory on
the legislature to provide for the
taking of appeals.
The CHAIRMAN. The question
is on the adoption of the section (11
will be section 17) as amended.
APPEALS— JUSTICE JURISDICTION
101
Thursday]
W A KELEY— GRIGGS — S COFIELD
[July n
The committee divided
section was adopted.
and the
The Chairman read the next sec-
tion as follows:
Sec. 18. Justices of the peace and
police magistrates shall be elected in
and for such districts, and have and
exercise such jurisdiction as may be
provided by law.
Mr. WAKELEY. Mr. Chairman. I
move to amend by adding a proviso.
The Chairman
ment as follows:
read the amend-
"Provided that no justice of the
peace shall have jurisdiction of any
civil cause where the amount in con-
troversy shall exceed one hundred
dollars nor in a criminal cause where
the punishment may exceed three
months imprisonment, or a fine of
over one hundred dollars, nor in any
cause involving a title to real es-
tate."
Mr. ESTABROOK. Mr. Chairman.
I would like to inquire whether a
justice of the peace ever has ju-
risdiction of such cases, if not, where
is the need of this provision?
Mr. PHILPOTT. Mr. Chairman. I
move to amend the amendment by
adding the following:
"Except in actions for trespass and
action of unlawful entry and forcible
entry and detainer."
Mr. MASON. Mr. Chairman. I
trust the amendment offered by the
gentleman from Lancaster (Mr. Phil-
pott) will not prevail, there can* be
no question as to that class of causes.
In no case where the matter of ti-
tle be involved can a court of jus-
tice act, nor can there be any pro-
bability of their undertaking to de-
termine the other questions; hence
it should not be interpolated in this
amendment. Neither in the action of
trespass can the title necessarily be
drawn into question. 1 cannot now call
to mind a question of trepass purely
where title is necessarily drawn
in question. Suppose I am owner
in fee of a piece of land another-
er man may have the present pos-
session of it, if I enter upon it I tres-
pass on his rights; my plea of title
has nothing to do with the determi-
natio n of trespass. I think the
amendment should not prevail.
Mr. PHILPOTT. I will withdarw
my amendment for the present.
Mr. LAKE. Mr. Chairman. I
think myself all the amondments that
have been offered to this section are
entirely useless, endeavoring to pro-
vide against something there is no
danger of. There never has been a
desire on the part of anybody to
confer upon the justices' court the
jurisdiction that is endeavored here
to guard against. No one has ever
proposed it. You might as well at-
tempt to provide in the constitution
that the sun should not roll back-
wards, rise in the west and set in
the east. No one contemplates con-
ferring any extraordinary jurisdic-
tion on justices of the peace. It
never was broached in the legisla-
ture, never has been anywhere, they
are considered an inferior court, not
a court of record, there is no danger
whatever of any diflBculty arising
from leaving the subject of justices'
jurisdiction entirely to the legisla-
ture, it has been so throughout all
102
JUSTICE COURT JURISDICTION
Thursday]
PHILPOTT-LAKE-HASCALL
[July 27
time within the life of the state of
Ohio, it is so, if I recollect right in
the state of Iowa, and it seems to
me if we take this section as it came
from the committee that it is ample,
leaving the jurisdiction with the leg-
islature of the state.
Mr. HASCALL. Mr. Chairman.
There are cases I conceive which
would be beneficial if left to the leg-
islature. We have a law on the
statute book now that makes it a
misdemeanor to cut timber on lands
of another and the jurisdiction is
given to justices of the peace. If the
defendant pleads not guilty that in-
volves the question of title to the
land, because the plaintiff to make
out his case must prove that the land
is his own and not the land of an-
other. It is a confirmation of ti-
tle on the one part and denial on the
other. I think the matter is safe in
the hands of the legislature. It is
generally understood that a magis-
trate's court i? an inferior court, and
no legislature would ever attempt to
make anything else out of them.
Mr. THOMAS. Mr. Chairman. I
agree with the gentleman who spoke
last that this matter should be left
to the legislature. It seems to me
the section should be amended so as
to except action for trespass for real
estate. I do not see any necessity for
an amendment concerning justices.
Mr. ESTABROOK. Mr. Chairman.
I suggest that we add "where a ti-
tle to real estate is in issue."
Mr. WAKELEY. I do not accept
the suggestion, I think it is right as
It Is. I only desire that this matter
shall be settled as is precisely right.
I do not see the consistency of estab-
lishing a county court as a court of
record and putting various limita-
tions upon its jurisdiction and then
leaving the legislature at liberty to
give justices of the peace any juris-
diction they see fit. Under this ar-
ticle as it stands it will be in the
power of the legislature to give jus-
tices of the peace jurisdiction super-
ior to that which we have conferred
upon county courts. Now if it is
really our intention to leave this
large jurisdiction to the legislature
then let us vote down the amend-
ment. What propriety or consistency-
is there in these limitations to the
legislature in respect to the jurisdic-
tion of county courts? We all under-
stood these county courts are super-
ior to justices of the peace and we
have found it necessary to limit the
jurisdiction of county courts which
are courts of record; which to a
considerable extent take the place
and exercise the power of district
courts. I do not say the legislature
would abuse the discretion but I do
say it is proper to set some bounds
upon the powers of the legislature in
respect to these inferior courts. The
question is whether you are to trust
entirely to the discretion of the legis-
lature, or put some limitation upon
them.
The committee divided and the
amendment was agreed to.
The CHAIRMAN. The question is
upon the section as amended.
The eighteenth section was adopt-
ed.
COUKT PRACTICE— IMPEACHMENT
103
Thursday]
WAKELEY
[July 27
The Chairman read the next sec-
tion, as follows:
Sec. 19. All laws relating to
courts shall be general and of uni-
form operation; and the organiza-
tion, jurisdiction, powers, proceed-
ings and practice of all courts of the
same class or grade, so far as regu-
lated by law, and in force and ef-
fect of the process, judgments and
decrees of such courts severally, shall
be uniform.
The section was adopted.
The Chairman read the next sec-
tion, as follows:
Sec. 20. The legislature may, for
cause entered on the journals, upon
due notice and opportunity for de-
fence, remove from office any judge
of the supreme or district courts,
upon concurrence of three-fourths of
all the members elected of each
house. All other officers in this ar-
ticle mentioned shall be removed
from office on prosecution and final
conviction for misdemeanor in office,
in such manner as may be provided
by law.
The section was adopted.
The Chairman then read the next
section, as follows:
Sec. 21. All judges of courts of
record, inferior to the supreme court,
shall, on or before the first day of
June of each year, report in writing
to the judges of the supreme court,
such defects and omissions in the
laws as their experience may suggest;
and the judges of the supreme court
shall, on or before the first day of
January of each year, report in writ-
ing to the governor such defects and
omissions in the constitution and
laws as they may find to exist, to-
gether with appropriate forms of bills
to cure such defects and omissions
in the laws. The judges of the seve-
ral district courts shall report to the
next legislature the number of days
they have held court in each of the
several counties composing their re-
SDPrtivft rli«trir>tc. rlnriner tba nrA-
ceding year.
[The section was adopted.]
The Chairman read the next sec-
tion, as follows:
Sec. 22. All officers provided for
in this article shall hold their offices
until their successors shall be quali-
fied; and they shall respectively re-
side in the district, county or pre-
cinct for which they shall be elected
or appointed. The terms of office of
all such officers, when not otherwise
prescribed in this article, shall be
two years. All officers where not
otherwise provided in this article,
shall perform such duties and receive
such compensation as may be provid-
ed by law.
The section was adopted.
The Chairman read the next sec-
tion; as follows.
Sec. 2 3. In case the office of any
judge of the supreme court, or of any
district court shall become vacant
before the expiration of the regular
term for which he was elected, the
vacancy shall be filled by appoint-
ment by the governor until a succes-
sor shall be elected and qualified;
and such successor shall be elected
for the unexpired term at the first
! annual election that occurs more than
j 30 days after the vacancy shall have
happened. Vacancies in all other
elective offices provided for in this
article, shall be filled by election;
but where the unexpired term does
not exceed one year, the vacancy may
to be filled by appointment, in such
manner as the legislature may pro-
vide.
The section was adopted.
104 JTDICIAL TERMS— VACANCIES— PKOCESS
Thursdayl
WOOLWORTH
[July 27
The Chairman read the next sec-
tion, as follows:
Sec. 24. All process shall run In
the name of the People of the State
of Nebraska, and all prosecutions
shall be carried on In the name of
the people of the State of Nebraska,
and conclude against the peace and
dignity of the same.
The section was adopted.
Mr. WOOLWORTH. Mr. Chair-
man. I desire to correct a section
to provide for commencement
fees. It is this — "the legislature
shall impose a tax on all civil suits
commenced or prosecuted in courts
of record, which shall constitute a
fund to be applied towards the pay-
ment of the salaries of judges." Mr.
Chairman, I do not propose to add
anything this, afternoon to what I
said this morning upon this subject.
But I hold in my hand the report of
the auditor showing the amounts of
money received by the state from
these sources. It amounts, in all, to
the sum of $17,855. The amount
received in the Second Judicial Dis-
trict was $9,580, a sum, I think,
sufficient, or nearly suflBcient, to pay
the salary of the judge of that dis-
trict during the whole time he sat
upon the bench. I have not had time
to compare the sums received from
the other districts. In the 1st Judicial
District was $5,625. Now, this is a
source of revenue which I would
save by a proper provision in the
constitution.
Mr. STEVENSON. I move an
amendment to the amendment — th.a,t
Is to except county courts.
Mr. WOOLWORTH. I accept the
Rmendmont.
Mr. ESTABROOK. Now I move
an amendment to the amendment by
striking out the words "or prosecut-
ed." If a judgment is taken by an
individual on default in order to cor-
rect errors, he takes an appeal, and
has to pay the initial fee as in the
original.
Mr. MYERS. Mr. Chairman. I
do not know that I understand this
provision offered by my colleague, or
that I am prepared to vote for it. I
do not think it right, or proper, or
expedient, that we should base the
salaries of the judges upon the
emoluments of their office and the
fees in courts. It is establishing the
principle that the higher the salaries
of the judge the higher should be
the fees for obtaining justice in our
courts. I do not make that a point,
but it may be made a point in the
mind of the public. I read in the bill
of rights "every person ought to find
a certain remedy in the laws for all
injuries and wrongs which he may
receive in his person, property or
reputation; he shall obtain by law,
right and justice, freely and without
being obliged to purchase it, com-
pletely and without denial, prompt-
ly and without delay." Now, we make
this money that is received in fees a
basis upon which to find a payment
of those salaries.
Mr. MANDERSON. A substitute
similar to it was stricken out, but
covering the same ground. Justice
should be dealt out without money
and without price. That was the
purport of the amendment which the
gentleman himself offered. I believe
the proposition is wrong in princi-
COURT COMMENCEMENT FEES
105
Thursday]
STEVENSON— MYERS-TOWLrE
[July 27
pie, and for that reason, I hope it
will not prevail. I certainly shall
not vote for it, if I am the only man
in this committee to oppose it.
Mr. TOWLE. Mr. Chairman. If it
is possible, I like to have a thing call-
ed by its proper name. This is sim-
ply class taxation. It works against
justice; against the rights of parties.
I undertake to say that this $9,000
of revenue which it seems has been
raised in this way, has been $9,000
taken out of the pockets of the law-
yers of this state. Parties may be
too poor to pay the commencement
fees and too proud to make the nec-
essary affidavit to that effect in order
to be able to bring suit without pay-
ing the fees. Parties have come to
me for legal advice, with regard to
collecting a debt, for instance, and
when asked for a retainer fee, I have
been told they had no money to pay
down; then when told that upon
making this affidavit of poverty, they
could bring suit, they have told me
that they were poor, but too proud to
do this, consequently they were put
to unusual exertions, and in many
Instances unjust sacrifices, in order
to meet the demands of this tax. If
you can put on a tax fee of $5, why
': not put on a tax of $500? You have
just as much right. After having
stated that people shiall have justice
in this state without money and
without price you have just as much
right to place a tax upon them in this
way of $500 as $5.
There are places where this com-
mencement fee will work great in-
1 jury. I do hope this convention
will not endorse it. I have been ask-
ed time and time again to use my in-
fluence to have this fee stricken out.
Other states have nothing of the kind
in their constitutions and why not
leave it to the legislature? Let us
place our own state, as we are ris-
ing in the scale of commonwealths
upon the same level of the other
states of this Union — not one of
them has this unusual and improper
tax— It is but an advertisement of our
insignificance and poverty — It de-
stroys the proportion and symmetry
of our constitutional structure — the
other parts are noble, grand and com-
plete in their outlines — -while this is
but a broken turret — a shrivelled
limb on a healthy body.
Let justice be free and open —
don't put up a statue of the Goddess,
holding aloft the scales, yet peeping
from under tlie bandage over her
eyes, to discover the amount of gold
the suitor may have who kneels at
her shrine — the cause of him who
seeks the tribunals of justice, for the
reparation of his character, the re-
covery of his property, for damages
done by the bludgeon of the assaulter,
is the cause of the whole community.
For his case is but a precedent to
control the wicked or protect the
property of the community at large
— this proposition takes a wider
range than to affect the interests of
the individual suitor — suppose the
legislative power shall pass such
laws as trample upon the sacred
rights of the minority (that minority
on behalf of which many gentle-
men upon this floor have grown elo-
quent) party spirit and the passions
of the hour run high — the whole ex-
106
COURT COMMENCEMENT FEES
Thursday 1
TOWLE-HASCALL-NEWSOM
Jul
ecutlve power of the state is brought
to bear to oppress the citizen — Now is
the time that demands some Hampden
to defend his rights and the rights of
the people — not because to obey the
law or pay the tax would ruin him or
the people financially, but because
to submit would debase him to a
slave. A man who steps forward in
this hour of peril and exigency is a
public benefactor and he alone
should not bear the burden of prose-
cuting his suit — therefore let the
judiciary be supported from the
general fund — not wrung from out
the depleted pockets of an injured
suitor who is driven to the courts for
the redress of wrongs already in-
flicted.
Mr. HASCALL. Mr. Chairman. I
move an amendment by striking out
the word "shall," in the first line,
and insert "may." I propose to get
this as little objectionable as pos-
sible.
Mr. NEWSOM. Mr. Chairman.
It may be this provision acts against
lawyers; it may be it prevents litiga-
tion; it may be it keeps cases out of
the courts. If this is so it is a bless-
ing to this country. I claim I am not
a lawyer, but I claim that I have as
much interest in this, as any lawyer
in this state. Upon what principle of
justice do you say that I shall pay a
portion of the expenses of the suit
of any man in our courts? What
right have 1 to say to the gentleman
from Richardson (Mr. Towle) that
he should pay part of the expenses
of my law suits when I go into the
courts? It is my judgment that
when a man goes into the courts, he
should pay the expenses. If a man
allows himself to be swindled, let
him pay for his experience. I can
see no bearing upon this case which
will affect the community. What
portion of the people of the state is
it that have law suits? Is it th*
greater part of the population or
the few? ' In my judgment it is the
few. I am opposed to this idea of
legislating for the benefit of the
three or four hundred lawyers in this
state. This would be for the benefit
of lawyers exclusively. Now there is
a provision by which if a man is too
poor to conduct his suits, they will
be attended to. If he is too proud to
take advantage of this, it is nothing
to me. I don't want to pay for this
pride. I am willing to help a poor
man, but I am not willing to help an
able man — one who is able to take
care of his own affairs. I never had
a law suit in my life, and I don't pro-
pose to have any if I can help it.
Now gentlemen, you propose to tax
me to pay your law suits, and I op-
pose the proposition.
Mr. TOWLE. Mr. Chairman. I
don't see any particular argument
in the gentleman's remarks, only
that he wants, when a man goes into
court, that he should pay for it. It
appears to me there is no argument
in it at all. I still oppose the system
of commencement fees. I believe it
is wrong in principle, and hope it
may be done away with.
Mr. PHILPOTT. Mr. Chairman. I
too am opposed to the adoption of
this section. The idea is a wrong
one, and the system is wrong. I ask
by what principle of justice shall we
say that those who are compelled to
go into courts to get their rights.
COURT CCMMENCEMENT FEES
107
Thursday]
NEWSOM— TOWLE— PHILPOTT
[July 27
should be compelled to pay the
judge for not only trying his casef,
but for other cases, which come be-
fore him. I think it has worked
great hardship.
Mr. ABBOTT. Mr. Chairman. I
believe that the most of the lawyers
here will sustain this amendment.
Mr. MOORE. Mr. Chairman. I
propose an amendment to that.
The Chairman read the amend-
ment as follows:
"Provided, When a person shall
make afadavit that he is too poor
to pay the commencement fee he
shall be exempted from paying such
fee."
Mr. WOOLWORTH. Mr. Chair-
man. I accept the amendment of the
gentleman from York (Mr. Moore.)
The CHAIRMAN. Gentlemen, the
chair is in doubt whether the amend-
ment offered by the gentleman from
Douglas (Mr. Hascall) to strike out
the words "shall" and insert the
word "may," has been put and (It
has not.)
The CHAIRMAN. Then the ques-
tion is on that amendment now.
The Committee divided and the
amendment was agreed to.
The CHAIRMAN. The question is
on the adoption of the section as
amended.
Mr. MASON. Mr. Chairman. Be-
fore this proposition is finally sub-
mitted to a vote I feel like saying
what I have to say on this matter. I
do not believe sir, that the tribunals
of justice are established or kept in
motion simply for those who em-
ploy them in litigation.
That man who brings a suit in
our courts, sometimes where only a
few dollars are in litigation, is often
the greatest benefactor of the state.
Take for instance the man who was
compelled to pay for the litigation
referred to by the gentleman from
Douglas (Mr. Woolworth) which
called forth from Chief Justice Mar-
shall and his associates a decision of
law for the whole country. In other
words which set a light on the ju-
'dicial hill of our land that casts its
rays over the whole people. That
man is sufficiently unfortunate in
being compelled to litigate to secure
his rights without being compelled
to pay a special tax for so doing. As
has been well said these judicial
courts have been established for
something more than the mere set-
tlement of litigation. They are to
speak the law for the whole people
of the state, to interpret that law by
which the whole people of the state
are to be governed. No sir, what
does the plaintiff in bringing suit
say? He says, "my rights have been
trampled on and I appeal to that law
which you, the people of the state,
have established for the safety of
your rights and mine." Now, sir, I
undertake to say that in the security
of individual rights rests the security
of the aggregate whole, and when it
is said he who dances should pay the
fiddler, but sir, in this case it is the
people of the whole state that dances.
It is the rights of the people of the
whole state that trembles in the bal-
ance whenever litigation is had in
our courts, and the whole state
should be moved to see that he has
his disenthroned rights, and sir, he
108
COURT COMMENCEMENT FEES
Thursday]
MASON-MYERS
[July 27
should not be taxed for that right.
Is it right? No sir, it is not in my
judgment. I ought to feel the same
interest in securing your legal rights
as my own, and if I don't so feel,
then sir, I disregard the words of
that greatest of law givers, the one
not born of earth, but of heaven,
who said "do unto others as you
would have others do unto you." It
seems to me we do violence to this
fundamental principle, and sir, for
these reasons I shall vote to lay the
whole amendment and section on the
table.
Mr. MYERS. Mr. Chairman. A
motion to lay on the table is not in
order in committee of the whole.
Mr. MASON. Indefinitely post-
pone.
Mr. MYERS. Neither is that mo-
tion in order, the only way we can
dispose of this is to vote it down.
Mr. WILSON. Mr. Chairman. I
have had a little experience in this
matter of paying commencement
fees and I say it is the greatest curse
that ever was placed upon any peo-
ple. You place that in your consti-
tution and I say the people of John-
son county will vote down your con-
stitution. I think it is a piece of
swindle, and I hope every honorable
gentleman upon this floor will vote
against it.
The CHAIRMAN. The question
is on the adoption of the proposed
section.
The section was not adopted.
Mr. PHILPOTT. Mr. Chairman.
T offer the following as a Separate
section:
"There shall be elected in and for
each judicial district in this state,
one district attorney whose term of
ofTice shall be two years. The duties
of the ofllce and salary shall be pre-
scribed by the legislature."
Mr. MYERS. Mr. Chairman. I
move to amend that the salary and
duties of the ofiice shall be regulated
by the legislature.
Mr. PHILPOTT. I accept the
amendment.
Mr. LAKE. Mr. Chairman. For
one I am opposed to the amendment
offered by the gentleman from Lan-
caster (Mr. Philpott). I am in fav-
or of leaving this subject of district
attorneys entirely to the legislature.
It may be possible that in a few years
it will be best to have prosecuting at-
torneys for some counties of the
state, at least in some of the larger
and more populous counties. In
some states they have adopted the
plan of prosecuting attorneys for
each county of the state but in a
state where so many counties have so
small a population as Nebraska, it is
best perhaps that district attorneys
be not provided. This matter has
been left to the legislature heretofore
and I think it is unwise to encumber
the constitution with useless provis-
ions. If it shall be found that the
system of district attorneys does not
work well, then of course the legis-
lature will be invested with the au-
thority to make a change. Leave it
entirely to the law making power,
and whatever system of states attor-
neys shall be thought best, or be
found best in practice, the legislature
undoubtedly will adopt. We have
had no reason for a provision of this
kind heretofore in our constitution
DISTRICT ATTORNEYS
109
Thursday]
WILSON-PHILPOTT— LAKE
[July 27
and what is the necessity now? Let
it remain as it has been in years past,
subject to the regulations of the law
making power. Most certainly the
legislatures are of sufficient intelli-
gence, of sufficient knowledge in
regard to the wants of the people
of the state, to regulate the matter
in such manner as shall conduce to
the best interests of the state. I see
no necessity for this provision; it is
worse than useless, because if the
system should be found to work ad-
vantageously there will be no reme-
dy, it being a constitutional provis-
ion, but if left as it is, it is subject
to the control of the law making
power and the wishes of the people
of the state.
Mr. PHILPOTT. Mr. Chairman. I
am decidedly in favor of county prose-
cuting attorneys but opposed to dis-
trict attorneys. I merely want the
matter voted upon.
The motion was not agreed to.
Mr. HASCALL. I have a propo-
sition to follow the word "follows"
in section ten.
The Chairman read the proposi-
tion as follows:
First District. The counties of
Richardson, Nemaha, Johnson, Paw-
nee, Gage, Saline and Jefferson.
Second District — The counties of
Otoe, Cass, Lancaster, Saunders, Sew-
ard and Butler.
Third District — The counties of
Douglas and Sarpy.
Fourth District — The counties of
Washington, Burt, Dodge, Gumming,
Colfax, Stanton, Madison, Wayne,
Dakota, Dixon, Cedar, Pierce, Ante-
lope, L'Eau Qui Court, and the coun-
ties and Territories lying due west of
L'Eau Qui Court
Fifth District — The counties of
Platte, Boone, Greeley, Howard, Hall,
Merrick, Polk, York, Fillmore, Thay-
er, Nuckolls, Clay, Hamilton, Adams,
Webster, Franklin, Kearney, Harlan,
Buffalo, Sherman, Dawson, Lincoln,
Cheyenne, and all other counties and
territory not included in any other
judicial district.
Mr. HASCALL. Mr. Chairman. In
preparing this I attempted to name
all the counties whose boundaries
have been defined by law, and for
fear that some county might have
been omitted, I say all other coun-
ties.
Mr. MYERS. I move to strike out
the word "country" wherever it oc-
curs, and insert the word "territory."
Mr. HASCALL. I accept the
amendment.
The committee divided and the
proposition was agreed to.
Mr. WAKELEY. Mr. Chairman.
There are two or three sections I de-
sire to have inserted at proper places
in the article. The first I move is as
follows:
The legislature shall provide by
law in what manner and in what
courts suits may be brought against
the state.
I move it be inserted as one of the
sections.
Mr. LAKE. It may be that the
gentleman has proposed this way of
taking the sense of the convention.
If there be a provision inserted in
the constitution authorizing the state
to be made a party defendant, that
the legislature will have that authori-
ty without any expresssed provision
in the constitution to provide where
those suits shall be brought. It
110
JUDICIAL DISTRICTS
Thursday]
PHILPOTT -HA SO ALL-LAKE
[July 27
seems to me better to insert this pro-
vision in some other article.
Mr. WAKELEY. Mr. Chairman.
As to the place where the section
shall be inserted I am not at all par-
ticular. It sems to me that the ar-
ticle on the judiciary is the appropri-
ate place for it. It relates to courts
— the right to make the state a de-
fendant in courts, and I think the
sense of the committee may as well
be taken upon the proposition now as
at any future time. I am aware of
the section the legislative commit-
tee have reported. Furthermore the
committee on revision have a right,
and it is a part of their duty to place
all the provisions of the constitution
under appropriate articles; and I
see no impropriety in considering the
matter now. I shall not withdraw
the section. In my judgment, the
provision is a very important one.
In the first place in reply to the
suggestion of the chairman of the
judiciary committee, I think that,
upon reflection, he will agree with
me, that, without this provision, the
legislature will not have the power
to provide for making the state a de-
fendant. The theory upon which it
has always been held that the state
could not be sued was that it was in-
consistent with the sovereignty to
be sued by one of its citizens in one
of its courts. That theory has been
carried out in the U. S. and in many
states of the union. By special pro-
vision in the constitution of one state
at least, as to which I speak from
personal knowledge, suits may be
brought against the state. Now, sir,
I think it is very obvious and appar-
ent, that there ought to exist a pro-
vision in the constitution, or under
the law, by which the state of Ne-
braska may be made a defendant. I
do not think it necessary to argue the
proposition elaborately. Going back,
for a moment, to the origin of the
doctrine that a sovereignty can not
be sued because it is derogatory to its
dignity to be brought as a defendant
into its own courts, it is manifest that
to carry out such a doctrine may and
inevitably will in many cases, do in-
justice to the citizens. Against the
right of suing the sovereign in the
courts, it has always been argued
that the citizen should look to the
justice of the sovereign alone and ap-
peal to the legislative department of
the government for redress. If nec-
essary to argue that proposition, the
history of the whole country is fill-
ed with instances where citizens for
years and years, for a whole lifetime,
have been suppliants in vain at the
feet of the sovereign for the plainest
justice and right. It is only within
a few years that the United States
has provided a form in which the
citizen could bring a suit against it.
Before that was done it is common
history that that lifetimes were spent
in beseeching congress to allow the
most just claims; and those reject-
ed .claims were handed down from
one generation to another, and while
justice was continually denied. But
since a court was provided in which !
the merits of the claim could be tried |
in the ordinary modes of law, jus- I
tice has been done and the United i
States made to pay just claims, i
What is true in regard to the United i
States is also true in regard to states.
And, instead of sovereignty being a
SUITS AGAINST THE STATE
111
Thursday]
WAKELEY
[July
reason why the citizen should not
bring it into court there is the strong-
est of all reasons why he should. The
very fact that he is dealing with
sovereignty places the individual
at enormous disadvantage . This is
the obvious reason why there should
be a right to sue the state. I shall
be surprised if any gentleman shall
suggest that it should not be done.
I believe that the distinguished gen-
tleman, the chairman of the judiciary
•committee, will, on reflection, be sat-
isfied that without this provision the
principle will be successfully invoked
upon which the citizen has always
been turned out of the courts. I re-
gard it not only as a proper provision
but, as a most valuable and indispen-
sable one in our organic law. If this
is not the proper place for it I am
perfectly willing it should be insert-
ed elsewhere. But I believe this is
the appropriate time to offer it.
Mr. LAKE. I think the gentleman
who has just taken his seat misun-
derstood what I said when I was on
the floor last. I most certainly agree
with him that unless there is some
provision in the constitution autho-
rizing the state to be made a party
•defendant in a suit at law or equity,
at the instance of an individual citi-
zen, that it could not be done.
What I said, or intended to say was
this — that it would be better to
leave this matter which he now pro-
poses, to be considered when the ar-
ticle which I referred to, reported by
the legislative committee, should
come under consideration. In their
report I find this provision. Sec. 45
■ — "The state of Nebraska shall nev-
er be made defendant in any court of
law or equity." Now, if this should
be the sense of the convention then
the gentleman's proposed section
would be rendered nugatory, that is.
useless. If, however, when the vote
shall come to be taken upon this sec-
tion which I have just read, when the
legislative article should be under
consideration, I say if the majority
of the convention should be all hon-
est, that this section should not pre-
vail, they would provide, probably,
that the state of Nebraska might be
made a party defendant in suits both
at law and equity, and then, as an
addition to this section, the provis-
ion the gentleman is now contend-
ing for might be added. The state
of Nebraska may be made a party
defendant in the courts of law and
equity in this state, and the legisla-
ture may provide in what courts such
suits may be brought. The permis-
sion to bring the suit, and the au-
thority on the part of the legisla-
ture to provide before what tri-
bunals should have jurisdiction in
those cases, could all be inserted in
one section. I only objected at the
present time, to incorporating this
section in the judiciary article.
Mr. MYERS. I am somewhat at a
loss to know the operation of this
amendment proposed by the gentle-
man from Douglas (Mr. Wakeley) to
make the state a defendant in the
collection of claims, or suits for the
recovery of money that may be duo
to the state or be due from the state
to parties claiming. I believe that
under royalty very great injustice
has been practiced, and parties have
been kneeling at the throne and de-
prived of their due. The king cannot
112
SUITS AGAINST THE STATE
Thursday]
LAKE-MYERS
[July 27
pursue, but I would like to know
whether that applies under this rule,
in a republican form of government
where the door is open for the pro-
secution of claims against the state
without going into the court of jus-
tice? The legislature in states where
this law prevails have a committee on
claims, who hear parties having bills
to collect against the government,
and I consider it a dangerous thing
to open the door for these prosecu-
tions against the state. They are
generally parties who have claims
which have been refused by the pro-
per officers; claims in excess of con-
tracts, or for articles furnished to the
state which did not comply with the
agreement, as to their quality, nature
or amount. When their claims came
before the legislature fully and fairly,
I know of fifteen or twenty claims
that were presented at the last leg-
islature, that I know, of my own
knowledge to have been clean, clear
frauds upon the state, and they were
rejected. Now so far as my knowl-
edge and experience goes on this sub-
ject, the legislature is always willing
to allow just and honest claims
against the commonwealth, and if
we send honest and just men to the
legislature these dishonest claims
will always be negatived. Some man
may have been cheated in a contract
with some other party — the peniten-
tiary inspectors, for instance. He
may come into the courts of justice
and keep your law officers constantly
employed. I know of no party be-
ing allowed unjust claims. There
are claims for Indian fights and In-
dian wars, amounting to |23,000.
These claims for good reasons have
all been rejected — have been killed.
Mr. MASON. Mr. Chairman. I
don't believe a more important ques-
tion to the whole state, has been
moved than the one now under con-
sideration, and for the reason sug-
gested by the gentleman from Doug-
las who has just sat down, whether
this provision should go into the con-
stitution is a matter of the greatest
importance. Our legislature passed
upon some claims last winter, whicli
have been before the legislature sev-
en times, and will probably come up
seven times seven, yet. Now, if this
were done in a court of justice, you
would put the record upon the per-
sons making these claims and stop
them. Another thing; you have but
to look out here upon your public
grounds surrounding this building,
and you will see where $2,000 were
paid for planting out forest trees,
which I undertake to say that I can
contract for, for the sum of $25.00;
and the auditor of state protesting
against the bill for these trees, and
yet it was allowed. All this would
have been impossible if we allow
the state herself to become a party
defendant in some of our courts of
justice. In the courts we have noth-
ing but the supremacy of the law.
That is the sovereign before which
the state ought to bend the knee;
and, sir, that law should be open
for the humblest, whether his claim
be against the state or against the
county. Why, is it that the state
should surround herself in majesty
and say "I have created these
courts?" In the olden times the
bringing of a king or sovereign be-
SUITS AGAINST THE STATE
113
Thursday]
MASON— ROBINSON-MYERS
[July 27
fore a tribunal of justice was not
thought of, because, they said, "the
king can do no wrong;" but let us
wipe out this relic of barbarism. Let
us provide thatthe state can be sued
in some one of our tribunals, and
then the legislature can say to those
presenting claims against the state,
"we turn you over to the proper tri-
bunal of justice; and establish your
claim there." Who of those within
the sound of my voice, that have sat
in the legislature and does not know
of the debates that arise where
claims are presented, where if the
witnesses were required to stand up
and swear to the facts upon which
these claims were sought to be made
good, they would fall to the ground.
I would not let the state be sued ex-
cept in special tribunals appointed
by the legislature, and then I would
require that every man who had a
claim against the state, should go be-
fore that court and establish his
claim, and then the legislature should
make an appropriation to pay it.
Fraud after fraud was perpetrated
upon the federal government until it
was driven to the establishment of
the "Court of Claims." If a man has
a just claim against the state, there
should be provision made for the re-
cognition of this claim and payment
of it. But I don't believe Mr. Chair-
man, this amendment should be made
here. I think perhaps the proper
place is in the legislative article.
But, sir, I do say that this convention
should do itself the honor of saying
to the state "bow down and worship
the sovereignty of the law." I would
remove frbm the legislature this
source of annoyance and trouble, and
8
turn it over to the courts of justice
who are fitted to deal with this class
of cases. I would not let every con-
stable, nor every sheriff in the land
be authorized to serve papers upon
the state, but I would permit her to
come into the highest tribunal in
the state. Then justice will be done.
I hope this amendment will receive
the sanction of the committee. It
can then be turned over to the legis-
lative committee and placed where it
belongs.
Mr. ROBINSON. Mr. Chairmah. I
wish to offer a substitute.
The secretary read the substitute
as follows:
The supreme court and the seve-
ral district courts shall each in ad-
dition to its ordinary powers and ju-
risdiction be a court of claims
wherein all claims against the state
may be prosecuted. The mode of its
procedure, the effect and execution
of its judgments and decrees shall be
prescribed by law.
Mr. MYERS. Mr. Chairman. I ac-
knowledge the force of the apostro-
phe of the chief justice (Mr. Mason.)
Now as to the claim which has been
referred to about the trees. I be-
lieve that has been definitely set-
tled. The contract sum agreed to
was $3,000. The auditor refused to
pay the sum, and the bill was sent to
the legislature. A deduction of a
thousand dollars was allowed, and I
need not say that if the claim had
been taken into the courts I believe
the whole amount could have been
collected. Now sir, I can buy these
trees which remain here for $20.00.
The auditor may have had ulterior
reasons for refusing to pay the claim.
Many of these trees, perhaps, hun-
114
SUITS AGAINST THE STATE
Thursday]
LAKE-PRICE-ESTABROOK
[July 27
dreds of dollars worth, were not furn-
ished to the state but were furnished
to private individuals who used them
to adorn their grounds, and that was
one reason why the legislature dock-
ed the bill $1,000 and the reason
why the aduitor of state, an hon-
est man, Mr. Gillespie, refused to
audit the account. I don't believe the
state should be dragged into the
courts to be held accountable to every
scallawag.
Mr. STRICKLAND. Mr. Chair-
man. I move to amend by striking
out the word "rejected," and put-
ting in these words, "for the payment
of which no appropriation is made
by law."
Mr. ROBINSON. I accept the
amendment.
Mr. LAKE. Mr. Chairman. I
wish to read an amendment which I
will propose.
"The legislature may provide by
law for the prosecution of claims
against the state and in what tri-
bunals and under what regulations
the same shall be prosecuted."
Mr. PRICE. Mr. Chairman. I
hope there will be a provision made
in the constitution by which the state
may be sued, for the claim of indi-
viduals. Reference has been made
here by the gentleman from Douglas
(Mr. Myers) to the calling out of
the militia. I believe he stigmatized
it as a fraud.! know something about
that and to that I wish to reply. The
constitution of the State of Nebraska
provides that the governor shall have
power to call out militia of the state
whenever it is deemed necessary.
At that time the Indians made a
raid upon the southwestern part of
the state, the governor called out the
militia in this section of the coun-
try, they served under the direction
of the governor and they put in
their bill and have had to depend on
the legislature for the pay, and sir,
they have never got a cent of pay yet,
but are today doing without that
money on account of the laws made
by the legislature last winter. I
shall insist upon the amendment.
Mr. ESTABROOK. Mr. Chairman.
There is a provision in the constitu-
tion of the state of Wisconsin and it
reads thus:
"The legislature shall provide by
law, in what manner and in what
courts a suit may be brought against
the state."
If I can find a provision in the
constitution of another state I shall
prefer to adopt that, for the reason
that their decisions will be of some
benefit to us. I think that the idea
that the state cannot be sued is of
regal origin as suggested by the
gentleman from Otoe (Mr. Mason.) I
think it is right and a true republi-
can idea to allow a person to bring
action against the state for claims
as in other cases, in the usual way.
It is true when a matter is claimed
before the legislature it is general-
ly upon some caprice that it is re-
jected or allowed, but if you will
bring it before the court, it seems to
me the question does not arise
whether the dignity of the state
shall be humbled, but the simple
question whether the claim made be
a just one, and shall be allowed.
That it seems to me is the fair com-
mon sense idea of this section. Un-
der this constitution of Wisconsin it
is required that the person shall first
present his claim before the legisla-
ture and if it is rejected he has re-
course to the supreme court. If I
understand the gentleman from Otoe
SUITS AGAINST THE STATE
115
Thursday]
MYERS— WAKELEY-ROBINSON
[July 27
it is not intended that every claim
shall be brought before the court,
but only whore the claimant and the
legislature differ. I find this provis-
ion "Suits may be brought against
the state, according to such regula-
tions as shall be made by law"
in the constitutions, — of Alabama,
Pennsylvania, and Delaware, and
the following: "The General As-
sembly may direct by law in
what manner and in what courts
suits may be brought against the
state," in the constitutions of Wis-
<;onsin, Illinois, Indiana, Kentucky,
Mississippi, Nevada and Arkansas.
Mr. MYERS. Mr. Chairman. I
wish to say in regard to this claim
referred to by the gentleman from
Jefferson (Mr. Price) I voted for that
claim and helped to put it through
this house and I was taunted at af-
terwards for voting for a fraud.
Mr. WAKELEY. Mr. Chairman.
In regard to the different proposi-
tions before the committee, I would
like to say a word. I think that the
amendment offered by the gentleman
from Lancaster
Mr. ROBINSON. Mr. Chairman. I
will withdraw my amendment, if the
amendment offered by the gentleman
from Douglas (Mr. Wakeley) is the
same as in the Wisconsin constitu-
tion.
MR. WAKELEY. 1 copied it from
the Wisconsin constitution with the
change of but one word, "provide"
instead of "direct." I think there
has just been a cause here, where it
is necessary to make the state a par-
ty defendant in order to foreclose its
mortgages in the Tichenor case. I
think the provision should be broad
enough to allow the state to be
made a party defendant, where the
claim affects the interests of the
state, as in this case.
The prosecution of a claim
against the state is one thing, but a
man may claim property where the
title is vested in the state. Various
cases may be thought of where the
state should be made a party defend-
ant, but where the plaintiff is not
prosecuting any claim against the
state, unless you use the word claim
in a very broad sense. Suppose your
state was in possesion of real pro-
perty and some citizen of the state
chooses to contest the title, I do not
think that is a claim against the state
and I do not believe there is any
necessity for making the language
as restricted as in the amendment of-
fered by my colleague (Mr. Lake.)
It seems to me the section as
I offered it is sufficient for all pur-
poses.
Mr. LAKE. I withdraw my amend-
ment.
The section was agreed to.
Mr. ESTABROOK. Mr. Chairman.
I move the adoption of the following
"The several judges of the courts
of record in this state shall have such
jurisdiction at chambers as may be
provided by law."
I looked carefully over the article
and did not see any provision made
for jurisdiction at chambers. I
copy it from the constitution of Kan-
sas.
Mr. LAKE. Mr. Chairman. I think
that section is an appropriate one and
ought to be embodied in this article.
1
11(5
CLERKS OF DISTRICT COURTS
Thursday]
ESTABROOK-LAKE— WAKELEY
[July 27
it was omitted really by mistake, I
had tlie matter in contemplation at
the time the article was being pre-
pared, but through an oversight it
was neglected. I hope the section
will be adopted by the committee.
The section was agreed to.
Mr. WAKELEY. Mr. Chairman. I
do not wish to monopolize the busi-
ness of offering amendments to this
article, but I have another:
"Sec-
-District courts shall ap-
point a clerk for each county who
shall hold his office for a term of
three years unless sooner removed
by the court, and tiiereafter until his
successor is appointed and qualified."
Mr. LAKE. Mr. Chairman. For
one I prefer that this matter should
be left to the legislature and that no
provision should be made for the ap-
pointment of a clerk in this article.
It has been heretofore left to the leg-
islature and I am in favor of leaving
it there still. I see no good reason
why the legislature might not be
left in control of the subject, to pro-
vide either for their appointment by
the court or election by the people.
In most of the states now, judges
of the court like our district courts
provide for the election of the clerks
by the people, and I believe that
generally that is the popular plan. I
prefer not to encumber the consti-
tution with unnecessary provisions.
If the legislature sees fit to leave the
appointment to the judges they will
do so, if they think best to provide
for the election by the people they
wll do so; they will do what they
think best for the people of the stat^
at large. I hope the committee will
leave it where it is.
Mr. WAKELEY. Mr Chairman. I
do not know but this matter might
be properly left to the legislature but
I prefer to see this provision put in
the constitution. I think there is
eminent propriety in vesting the ap-
pointment of clerks in the courts. I
think the courts have so much better
opportunities of knowing the qualifi-
cations of a clerk, so much better op-
portunities of knowing whether he
possesses proper skill, experience and
frame of mind to make a good clerk.
Of course in all ordinary cases the
people should elect their officers
but the clerk of the court has pecu-
liar duties to perform in connection,
with the records of the court, very
delicate and responsible duties tO'
perform in connection with the rec-
ords of the papers of the court. He
is moving under the immediate eye
of the judge, and certainly the judge
of the court has greater opportuni-
ties for knowing the qualifications of
the clerk than the people have. Ev-
ery member of the bar will, I think,
confirm what I say and if members
of the committee agree with me I
do not see why we should not Insert
it in the constitution. We have al-
ready adopted a similar provision in
regard to the clerk of the sunreme
court, and I know of no reason why
one officer should be left to the peo-
ple that would not require the elec-
tion of both to be left to the peo-
ple. I consider it a matter of some
considerable importance.
Mr. MASON. Mr. Chairman. I
hope the amendment may prevail. I
believe it desirable. I think evely
judge who is responsible for th&
4
CLERKS OF DISTRICT COURTS
117
Thursday]
MASON— BALLARD— MAXWELL
[July 27
keeping of a proper record ought to
appoint his own clerk.
Mr. BALLARD. Mr. Chairman. I
hope the motion will not prevail. I
do not wish to see that system of ap-
pointment inaugurated in this con-
stitution. The same reason that my
friend from Douglas (Mr. Wakeley)
assigns for the appointment of clerk
of the court will carry out with other
officers of the court. . I hold the peo-
ple should be left free to elect their
own servants. I hope the motion
•will nbt prevail.
Mr. HASCALL. Mr. Chairman. I
shall always leave everything as far
as my vote will go, with the peo-
ple. I shall vote against the propo-
sition.
The proposition was not agreed
to.
Mr. MAXWELL. Mr. Chairman. I
wish to amend the second section by
adding to it the words "provided
that not to exceed one judge of said
court shall be elected from any one
county."
Mr. MAXWELL. The reason of
this amendment is as far as possible
Mr. HINMAN. I rise to a point of
order that it is not right to go over
this section by section and amend
after we have adopted the section.
The CHAIRMAN. The chair un-
derstands that the point of order
is well taken,
Mr. ESTABROOK. I hope the
cl^airman will, not settle upon that
rule.
Mr. MAXWELL. Then I offer this
as an independent section. It reads:
"Provided that not to exceed one
judge of the supreme court shall be
elected from any one county."
Now, Mr. Chairman, it is desir-
able, as far as possible to distribute
the judges of the supreme court
throughout the state. There are ca-
ses, of a local character that may
come before that court, such as a
judge, perhaps, might not act upon
unbiased. And it is desirable to take
one from one part of the state, and
another from another, and one from
the third part of the state. Without
some such provision as this, all the
judges might be elected from one
county. We are all aiming to have
an independent supreme court. Now,
some of the large counties of this
state might, probably will not, but
they might, elect all the judges.
They might elect two of them. If
we permit one county to elect but
one judge, then we distribute one
to the southern and one to the nor-
thern, and one, perhaps, to the cen-
tral, part of the state. And I think
the court will be much more efficient
than it would otherwise.
Mr. LAKE. I would suggest to
the gentleman, if he is in earnest in
his desire that they continue to re-
side where they are elected. Sup-
pose the three should conclude that
it was best that they should reside
at the capital, would the gentleman
object to that? He desires to have
them scattered about over the state.
The business of the judges of the
supreme court is at the Capital;
there is the place for them really,
most of the time, especially w^hen
the business of the state shall be
such as requires their attendance
118
RESIDENCE OF SUPREME COURT
Thursday]
LAKE-HINMAN-ESTABROOK
[July 27
there at long sessions of the supreme
court. I would recommend that the
gentleman incorporate in his amend-
ment "that no judge, after being
elected shall be permitted to remove
from the county in which he resides
at the time of his election."
Mr. HINMAN. Suppose we should
nominate a man from Douglas coun-
ty, Judge Lake, for instance, for the
republicans. Suppose on the other
hand, we should nominate Mr. Wool-
worth or Judge Wakeley, on the oth-
er side, and by some peradventure
they should be elected, then, I would
suggest, the amendment would be
impracticable
Mr. WAKELEY. I think that, in
the case suggested by the gentleman
from Lincoln, on general principles,
the democrat ought to be declared
elected.
The committee divided and the
section was agreed to.
The CHAIRMAN. The question is
upon the adoption of the article as
amended.
Mr. ESTABROOK. I would call
the attention of the chairman of the
committee to section twenty-two, the
last section of the article. "All pro-
cess shall run in the name of the
people of the state of Nebraska, and
all prosecutions shall be carried on
in the name of the people of the
state of Nebraska, and conclude
against the peace and dignity of
the same." What kind of prosecu-
tions are meant here? Is this intend-
ed to apply to criminal prosecutions
Mr. HINMAN. I rise to a point of
order.
Mr. ESTABROOK. State your
point of order.
Mr. HINMAN. The section is not
before the house.
The CHAIRMAN. Does the gen-
tleman propose to amend?
Mr. ESTABROOK. Yes, sir, I pro-
pose to amend.
Mr. HINMAN. I insist on my point
of order.
Mr. ESTABROOK. State your
point and then I will argue. I would
like to have this question settled.
May be, I don't know anything about
parliamentary rules. But I know
that in this, as well as in any other,
you first go through section by sec-
tion, and then you harmonize the
whole. We pass along and almost
without knowing the entire object
of a section and adopt it. Now, it
is absolutely necessary to travel back,
so as to make the parts harmonize
with each other. I merely call the
attention of the chairman of the
committee to it.
The CHAIRMAN. Does the gen-
tleman offer an amendment?
Mr. ESTABROOK. Yes. I desire
it to be amended.
Mr. MASON. I have an amend-
ment I desire to offer
Mr. ESTABROOK. To this sec-
tion?
Mr. MASON. No, sir. I thought
there was no section before the con-
vention.
Mr. ESTABROOK. I was enquir-
ing whether
The CHAIRMAN. Does the gen-
tleman offer an amendment?
FOKM OF WKITS
119
Thursday]
ESTABROOK— MASON— LAKE
[July 27
Mr. LAKE. Mr. Chairman. I will
answer the gentleman that the ori-
ginal copy was correct but
Mr. MASON. Mr. Chairman. I
thought I had the floor.
Mr. ESTABROOK. I have the
floor.
Mr. MASON. I see you have. You
have a great many places you ought
not to have. I will let the gentle-
man explain.
Mr. LAKE. The difficulty the gen-
tleman complains of is all owing to
the want of proper punctuation and
the omission of capital letters. In
the original bill it was correct. But
here we have only commas, where
there ought to be semicolons. There
should be a semicolon after the
word "run;" after the word "Ne-
braska;" after the word "on;" after
"Nebraska" again, and after the
word "conclude."
Mr. ESTABROOK. I enquire fur-
ther, whether it should not say in-
dictments.
Mr. LAKE. It is almost the same
language as used in the old consti-
tution. We never have experienced
any difficulty. The constitution, too,
of Illinois, with the exception of the
name of the state, and the words "by
the authority," has precisely the
same language; but the punctuation
of the article, as printed, is differ-
ent.
Mr. ESTABROOK. In the case of
a prosecution for misdemeanor
would it not be fatal to omit to say
it was "against the peace and" dignity
of the state of Nebraska?"
Mr. LAKE. It should read so.
Mr. ESTABROOK. Then I offer
an amendment — "and all indictments
and information shall conclude
against the peace and dignity of the
same."
Mr. LAKE. Mr. Chairman. That
will leave the section substantially
as it now is but with a large amount
of verbiage which is entirely unnec-
essary. All informations before
magistrates are also included here.
It don't change the section at all,
but renders it very bungling indeed.
Mr. ESTABROOK. Well, I will
withdraw it.
Mr. KIRKPATRICK. Mr. Chair-
man. I would like to hear this point
of order which has been raised, set-
tled.
Mr. HASCALL. I would call the
gentleman to order. There is no
point of order raised.
The CHAIRMAN. The chair holds
that after the article has been
amended, it is still open for amend-
ment section by section.
Mr. MASON. Mr. Chairman. I
have a section I desire to see added.
The object is to remove the election
of judges from the influence of party
feeling, as much as possible. The
section reads:
"Ballots for judges shall be de-
posited in separate boxes to be pro-
vided for that purpose."
Mr. STRICKLAND. (To Mr. Ma-
son) Does that apply to all the
judges?
Mr. MASON. I would say all.
Mr. STRICKLAND. Mr. Chair-
man. I move to amend by making it
"supreme and district judges."
120
Thursday]
SEPARATE BALLOT FOR JUDGES
LAKE-MASON-STEICKLA?JD
[July 27
The CHAIRMAN. The question
is upon the amendment of the gen-
tleman from Douglas (Mr. Strick-
land).
The committee divided and the
amendment was not agreed to.
The CHAIRMAN. The question is
upon the section offered by the gen-
tleman from Otoe (Mr. Mason).
The committee divided and the
section was not adopted.
The CHAIRMAN. The question
recurs upon the adoption of the ar-
ticle as amended.
The article was adopted.
Mr. MAXWELL. Mr. Chairman. I
move that the committee rise, report
the article back to the convention,
as amendedl. and recommend that it
be engrossed.
The motion was agreed to.
Mr. McCANN. Mr. President. The
committee of the whole have had un-
der consideration the article on "Ju-
diciary" and beg leave to report
the article back as amended, and
recommend that it be engrossed.
Adjournment.
Mr. MYERS. Mr. President. I
move we adjourn until tomorrow
morning at 9 o'clock.
Mr. McCANN. Will the gentleman
give way one moment. If we recom-
mend that the article be engrossed,
it cannot be amended in conven-
tion. As it is, it is still subject to
amendment in convention.
The PRESIDENT. The article
will not be engrossed.
Mr. MYERS. Mr. President. I
renew my motion to adjourn until
tomorrow morning at nine o'clock.
The ayes and nays were demanded.
The secretary proceeded to call the
roll.
The President announced the re-
sult — ayes, 14, nays, 33 — as follows:
YEAS
Cassell.
Myers,
Bstabrook,
Neligh, f
Kirkpatrick,
Philpott, ;
Griggs,
Price,
Kenaston,
Robinson,
Lake,
Scofield,
Maxwell,
Wilson — 14
NAYS
Abbott,
Manderson,
Ballard,
Moore,
Boyd,
Newsom,
Campbell,
Reynolds,
Curtis,
Shaff,
Eaton,
Sprague,
Gibbs.
Stevenson^
Granger,
Stewart,
Gray,
Thummel
Hascall,
Thomas,
Hinman,
Tisdel,
Kilburn,
Towle,
Ley,
~]> Vifquain,
Lyon,
Wakeley,
McCann,
Weaver,
Majors,
Woolworth — 33
Mason,
ABSENT OR NOT VOTING.
Grenell, Spiece,
Parchin, Mr. President— -5.
Parker,
So the motion to adjourn until to-
morrow morning at 9 o'clock was not
agreed to.
Mr. MANDERSON. Mr. Presi-
dent. I move we adjourn until this
evening at eight o'clock.
Leave of Absence.
Mr. KIRKPATRICK. Mr. Presi-
dent. I ask leave of absence until
tomorrow morning at 9 o'clock.
Leave granted NEM. CON,
ROLL CALL ON ADJOURNMENT
121
Thursday]
McCANN— MANDERSON
[July 27
Mr. WAKELEY. Mr. President, I
would like to know what is the stat-
us of the report of the judiciary
committee.
The PRESIDENT. Under the or-
der of business it will be taken up
at two o'clock p. m. tomorrow.
Adjourament Again.
The PRESIDENT. The question
is upon the motion to adjourn until
S o'clock this evening.
The convention divided, and the
motion was agreed to.
So the convention (at six o'clock)
adjourned.
Evening Session.
The convention met at S o'clock
p. m., and was called to order by the
president.
Privileges of the Floor.
Mr. SCOFIELD. Mr. President I
have a resolution I wish to offer.
The secretary read the resolution
as follows:
"Resolved, That the convention
takes pleasure in extending the privi-
leges of the floor of this hall to Hon.
I. N. Shambaugh and Hon. H. Cal-
houn."
Mr. McCANN. Mr. President. I
move the adoption of the resolution.
The resolutipn was adopted.
Electoral and Representative Reform.
The PRESIDENT. Gentlemen of
the convention, the special order for
this evening is to fake up the report
of the committee on electoral repre-
sentative reform. The question is
on going into the committee of the
whple.
The motion was agreed to.
So the convention in the commit-
tee of the whole, Mr. Stevenson in
the chair — proceeded to consider the
minority report of the committee on
electoral and representative reform.
The CHAIRMAN. Gentlemen of
the committee, we have under con-
sideration this evening the report of
the committee on electoral and rep-
resentative reform. The secretary
will read the proposition.
The secretary read the following:
PROPOSITION.
At any election when three or
more persons are to be elected to
the same office by the same constitu-
ency, each qualified voter may cast as
many votes for any candidate as
there are persons to be elected to
such office, or may distribute the
same, or equal parts thereof, as he
may see fit, among the candidates
not exceeding the number to be elect-
ed. The candidates highest in votes
shall be declared elected; or if an
equal vote for two or more having
the requisite number, shall require it
the choice between them shall be
made by lot.
Mr. BOYD. Mr. Chairman. I move
the adoption of the report.
Mr. WAKELEY. Mr. Chairman.
It will be expected that something
will be said in favor of this proposi-
tion by the committee who have re-
ported and who recommend its
adoption. In what I shall say in fa-
vor of it I shall content myself with
a plain statement of the principle
intended to be established by the
adoption of this proposition and
such arguments and reasons in sup-
port of it as I am able to bring for-
ward. The subject addresses itself
to the intelligence of men. it appeals
to that sense of what is right and
122
PROPORTIONAL REPRESENTATION
Thursday]
SCOFIELD— STEVENSON— BOYD
[July 27
just. In the first place it is well to
have a clear idea of what is in that
proposition, what it intends to say.
Fir.st what is the mischief to be reme-
died? Under the present system of
using the elective franchise as we
all know, whenever one or more of-
ficers are voted for in the same dis-
trict cither a majority of those vot-
ing or a plurality elect the whole
number voted for. What is in that
is to permit such a use of the elec-
tive franchise; such a use of the pow-
er of the ballot, entrusted to every
individual, as will bring about as
nearly as practicable this result, that
the majority shall no longer be un-
able to elect a majority of the officers
voted for in the election and that it
shall be no longer in the power of a
mere majority to elect all those of-
ficers. Under the system of govern-
ment which prevails in this country
we have the electing of various clas-
ses of officers. The executive to en-
force the law. The judiciary to In-
terpret the laws and various other
officers to perform their functions in
the state. What is in that is this,
that heretofore in adopting this sys-
tem every class or condition of voters,
whether the majority, plurality or
number less than either to elect its
due proportion of the representative
officers and select its due share of
other officers, a share which shall
bear the same proportion to the num-
ber elected as the division of voters
less than a plurality bears to the
whole number of voters. If nine of-
ficers are to be chosen of the same
class, in the same district and at the
same election then it is intended that
one-third of the voters supporting
the same system shall be able to
elect three of these officers and in
that proportion: On that prin-
ciple this is enough to explain
what is in that by the adoption of
this proposition. How will the adop-
tion of this proposition accomplish
that result? This is I trust plainly
and clearly set forth and stated in
the report made by the minority of
the committee, and if gentlemen of
the convention have done us the hon-
or to peruse that report it will per-
haps explain more clearly than I
could now do, the manner in which-
the adoption of this system is expect-
ed to work the proposed result. But
I may state a few words perhaps
without trespassing upon the time or
indulgence of the committee. Un-
der the present system of voting Mr^
Chairman, each elector is required
to give one vote to each of the can-
didates whom he supports or con-
firms for a given office, or to lose in
part the benefit of his vote. He can
give but one vote to any one candi-
date or person, therefore it results
necessarily as a mathematical propo-
sition that if a minority of voters
distribute their votes in this manner
they will be outnumbered by the
majority, and thus the minority by
attempting to accomplish more than
they are able to, accomplish nothing;
but if each individual voter, if each
minority of voters, all desiring to
elect the same set of candidates, were
permitted to bring their whole elec-
toral power to bear upon selecting
that share which they are justly en-
titled to, they would effect what they
undertake, but in being compelled to
attempt more than they can accom-
plish they lose the entire benefit of
PROPORTIONAL REPRESENTATION
123
Thursday]
WAKELEY
[July 27
the ballot. In being permitted to
attempt just what they are able to
accomplish they are able to make
their votes effectual. If one-third of
the whole number of voters are per-
mitted each to give three votes to the
candidate of their choice, they will
inevitably elect him. And, sir, the
principle upon which this is accom-
plished is the same principle illus-
trated in the daily transaction ot
human life. When an individual at
tempts by physical effort to overcome
an obstacle altogether beyond his
power or resources, all his strength
is exerted in vain. When my friend
the president of the convention, Gen.
Strickland, or Gen. Manderson in
the late war for the Union, at the
head of their respective brigades,
found themselves confronted by an
overwhelming number of the enemy
they would deem it rash and reckless
to hurl their little forces upon three
times their number and thus sacri-
fice lives uselessly and shed blood in
vain in confronting a foe more than
their number, but give them what
they are able to do and they can
strike blows for the flag and country
which shall tell and which did tell
in working the overthrow of the re-
bellion which aimed at the life of this
republic. Men losing their lives in
such a contest do not lose them in
vain, blood shed in such an effort
was not shed ruthlessly. Now sir-
in using the ballot we would apply
the same principle. We would not
compel the minority to fritter away
the whole force of their ballot, the
whole effect of the electoral power,
by attempting to accomplish impos-
sibilities. We would have them meas-
ure their strength and concentrate
their votes upon that number of
candidates whom they would be able
to elect. This, then Mr. Chairman, in
few words is the method by which
we expect to acomplish the result
aimed at. Now sir, is this right and
is it expedient? First is ifc the right
of the elector so to use his ballot, is
it right for the minority to be repre-
sented according to their principles
in the legislative counsels of the
country, and is it right that the mi-
nority should be able to select its
due proportion of other officers? And
sir, it would conduce to clearness and
brevity if I confine my remarks plain-
ly to the question of representation.
This is sometimes called Mr. Chair-
man, minority representation. I
would call it proportional represen-
tation. It is a representation of
minority, but it is only a proportion-
al representation, a representation
according to the numbers of the mi-
nority as compared with the whole
number of voters. Now sir, is it
right that a minority of voters should
be allowed to elect their representa-
tives to the legislature, and send
them to speak and act for a minority
of the voters? Mr. Chairman, let
me speak for one moment upon forms
of government. Do not imagine
that I am going to weary this com-
mittee with any dissertation upon
the general principles of government,
but it is necessary in the argument,
that I should devote a very few mo-
ments to that general consideration.
Governments are of two kinds, popu-
lar governments and monarchial or
kingly governments. Popular gov-
ernments are of two sorts, one the
124
PROrORTIONAL REPRESENTATION
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WAKELEY
[July 27
pure democratic in which all the
voters assume to deliberate, to leg-
islate and to decide. I need not say
of course that this form of govern-
ment has its place in the world. It
took its due place in the procession
of the forms of government, but
from physical necessity it has passed
away, it was practicable only where
those comprising the government
were spread over a limited area.
But sir, when so represented the mi-
nority was there as well as the ma-
jority. The majority had its voice,
its influence, its power, in the ulti-
mate decisions and whatever con-
cerned the common weal. Although
this form of government has passed
away yet still we have traces of it
in our American institutions. Mr.
Chairman, in the meetings of New
England, New York, the central and
most of the western states you have
still an example on a small scale of
a purely democratic form of govern-
ment, where every voter in the
limits of the town is entitled to be
present at these meetings, these little
legislatures for the town, is entitled
to his voice, his influence, and to his
vote in all affairs which concern the
little commonwealth of which he is
a part. You have this same form of
government represented in your
school district meetings, in your
church meetings, in your society
gatherings, where minorities have
still all their rights. If a man stands
solitary and alone, the sole represen-
tative of a single interest, the sole
exponent of a single view of the
policy which should control the town
or society, although his single voice
may be heard, although his single
vote may be given in support of his
proposition, still he is entitled to be
there, to be heard and to give that
vote. Sir, when the pilgrims assem-
bled on the deck of the Mayflower
and there with the broad canopy of
God over them and the whole con-
tinent and wilderness before them,
sat down and framed the laws and
regulations which should govern
the little community they were about
to establish, they were democratic
every man of them, fleeing from the
persecution and bigotry in the old
world to the freedom of the new,
And every man was entitled to be
heard, and was heard, and sir, histo-
rians say that in that code of laws
and regulations is found the germ of
some of the most valuable principles
which have been embodied and per-
petuated in the laws of the United
States. So much for a democracy.
We, sir, live in a representative gov-
ernment where a few men legislate
in the name of all. Where a few
regents of the people perform their
duties in order and the interest of
law. It is not part of my purpose to
discuss the relative merits of these
two forms of government, suflBice it
to say that a representative govern-
ment is a necessity at this day, and
it would not be difficult to show that
it is an improvement upon a pure
and absolute democracy, but that is
foreign to my purpose. Now sir,
coming to the immediate question.
We are about to provide for a leg-
islature of the state of Nebrask;a,
provide for a senate and a house of
representatives, and to illustrate my
ideas of what is right and what
ought to be done, let me suppose
PROPORTIONAL REPRESENTATION
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Thursday]
WAKELEY
[July 27
what is not far from the facts. Sup-
pose that this state will have 30,000
votes, that we shall provide for a
house of representatives to consist
of Sixty members; when sir, 30,000
voters will elect sixty members of the
house, and upon an average every
500 votes in the state will elect one
of these representatives. Now, sir,
if the entire state of Nebraska was
one grand legislative district, and
sixty members were to be chosen
from the whole state, what would be
a perfect system of representation?
I have not the time to reason it out.
Other men have done it much bet-
ter;, much more convincingly than I
can do. But, sir, I lay down this
proposition, and I will argue in refer-
ence to it that a perfect system of
representation, if the whole state
was one representative district,
would allow every 500 men within
the limits of the state who would
prefer to use their electoral power
for one man, and their candidate
should have the power necessary to
elect him, then, sir, he would be, in
every sense of the term, their repre-
sentative. Every man who voted
for him would be directly represent-
ed by him. But, sir, that will not be
done. Let me suppose what is prob-
able to be done. That counties or
legislative districts electing more
than one member shall have their
due quota or proportion of represen-
tatives assigned to them. For illus-
tration. Suppose the county of Otoe
has one-tenth of the population of
the state and will be accorded one-
tenth of the representatives; she has
a ' population of quite, or, perhaps,
exceeding one-tenthji. and she will
have not less than six members ac-
corded to her. Then I carry out my
illustration. Three thousand voters
in the county of Otoe will be entitled
to send six members to this hall.
Every 500 of these voters is entitled
to elect one man. That is the aver-
age proportion. Now, sir, if one
thousand of those voters are in fa-
vor of electing one set of candidates,
and 2,000 voters in favor of electing
another set of candidates, is it right,
is it just, is it democratic, that the
2,000 should elect all the represen-
tatives, and that the 1,000 should
elect none? But worse than that!
Suppose that there shall be three sets
of candidates in the field, and one
set receives, by a few votes, more
than either of the others, then one-
third or a little more of the whole
number of votes, elects the six mem-
bers, and the two-thirds are disfran-
chised; and there sir, is minority
representation for you in its perfec-
tion. There the minority elected all
your members and the majority is
unrepresented. If there be three
candidates in the field and each one-
third of the voters would elect two
members, each would be represented,
and there would be proportional rep-
resentation. Gentlemen, is that fair;
is that just; is that right? Or is it
right that either a minority, which
means but a plurality, shall
elect them all. Now, sir, let me put
a few instances by way of practical
illustration of this principle. As a
general thing, voters divide accord-
ing to political principle. As a gene-
ral thing, they are arranged in two
great political parties — sometimes in
three. >l6w, let us suppose soiiie
126
FROFORTIONAL REPRESENTATION
Thursday]
WAKELEY
[July 27
cases which are not embraced in this
classification of voters. I will sup-
pose that in the county of Otoe, en-
titled to elect six members, with a
voting population of 3,000, that there
are 500 voters who have in [com-
mon] some principle which to
them, is dear and valuable. I
will suppose there are 500 men
there known as labor reform men,
who believe that the principal
issue should be the issue of
capital and labor! who believe that
these principles, which are advocated
by the political parties, are compara-
tively unimportant but who believe
that the rights of labor should be the
great object of legislation: sir, that
party has an existence in this country.
I suppose in some places it is strong;
in others it is weak. But if there
be 500 men within the limits of Otoe
county who would make the issue of
labor reform the supreme issue in
the canvass, and say they care noth-
ing for any other question to be
mooted in the legislature; but that
this is the great, paramount and su-
preme issue, sir, is it not right, is it
not just; is it not democratic; is it
not republican that those 500 men
should elect one man to represent
their views upon the floor of the
legislature; and so another 500 men
believe that there should be prohi-
bitory legislation against the manu-
facture and selling of intoxicating
liquors; another 500 men, drawing
their inspiration from my honored
friend to my left, believe in some
question of great interest to them.
Now, sir, although the great majori-
ty may be against that question, al-
though there may be an overwhelm-
ing torrent of public opinion against
it; yet who will stand up here and
say 500 men, the number who, every-
where else are entitled to elect one
representative, believe a man to be
elected for that purpose and vote for
their man, should not have the right
to elect him, and let their views be
expressed upon the floor of the leg-
islature? So if free schools had not
already been established in this
land beyond all danger of overthrow;
if we were back twenty or thirty
years before free schools were estab-
lished by a fundamental law of the
states: when education was beyond
the reach of the poor man, when, from
mere penury and want his children
were growing up about him in ignor-
ance, was it not the right of every
set of men', amounting to the quota
which entitled them to one represen-
tative, to elect a special chdmpion
of that great and paramount cause?
And so unnumbered illustrations
might be put; but I forbear. I have
given enough to illustrate the prin-
ciple.
Now, sir, what 1 have said per-
tains to representative officers. It
may be said that in respect to other
ofiicers the principle has no applica-
tion. It may be said that the judges
of the land are elected not to repre-
sent the views of the constituents but
to administrate the law as it is. That
is true. They are not elected to rep-
resent the political views, of any
few of the men who choose them. But
they are elected because the men
who vote for them believe they are
fit and suitable men for theoffice; and
if there is a difference of opinion
among the voters on that question; if
PROPORTIONAL REPRESENTATION
127
Thursday]
WAKELEY
[July 27
a bare majority of the voters say A.
B. and C. are the most suitable men
for judges, and the minority amount-
ing to nearly one-half, say, no, neith-
er of those men are capable, neither
of those men are fitted for the of-
fice, but three other men, two other
men, one other man is, in our judg-
ment, suitable, is the best man in
the state or in the district to hold
the office; then, sir, applying the
same principle, should not the choice
of the minority be respected to the
extent of their proportion of the
whole number of votes? And while
the principle is the same; the occa-
sion of it is different. Let me al-
lude to one principle which is not em-
bodied in the report. The able gen-
tleman from Otoe county, a few days
since, in a casual remark upon the
accidental question, took occasion to
say he believed in some representa-
tion in the legislature in either
branch of the legislature, from
the state at large, that a propor-
tion of the senators and representa-
tives should be elected without refe-
rence to locality, and he stated, in
better language than I can employ,
the reason for which. Mr. Chairman,
early in the session, I had something
individually to do with the resolu-
tion that went to this committee, and
I will only undertake to say that
they established a most , excellent
element to incorporate in the sys-
tem of legislation.
Sir, we all know — every man has
had occasion to know, that in
every state some of the very best
men, some of the men most fit, most
capable in every respect to represent
the people are kept out of the leg-
islature because the people of the
particular district in which they live
are opposed to them politically. I
have seen this sir, and if men were
taken from the state at large — were
selected for their peculiar fitness for
the positions, there would be a re-
formation in political matters. If the
principle of minority representation,
or rather proportional representation
should be carried out to the extent
proposed by this committee, so that
each portion of the state should
have its proportional representation,
much good would result. I would be
glad to have this new state of Ne-
braska to be the first state in the
union to adopt this legislative re-
form. Mr. Chairman, it is sometimes
said by those who think lightly of
this measure that minoities are now
represented. It is worth while to
consider that for a moment. Upon
what principle am I represented by
a man whom I opposed with all my
power, — by a man who does not re-
present my principles, but comes in-
to the legislature to do all he can in
opposition to those principles? On
what principle is the minority repre-
sented by a member who is opposed
to every principle which the minority
believes in? That, sir, is not the
kind of representation that can stand
the scrutiny of the people. Now
Mr. Chairman, that I may not weary
the committee, I will leave this ques-
tion, which I have so imperfectly
discussed. A few words as to an-
other question. Is it expedient that
there should be minority representa-
tion? Is it right that the minority
should be represented, for if it is
then we need not inquire into the
I
128
PROPORTIONAL REPRESENTATION
Thursday]
WAKELEY
[July 27
expediency. If It is right, it is ex-
pedient. But looking beyond the
right I say, is it expedient to the
state that minorities should be rep-
resented? I believe it is better for
the state, better for the public that
there should be a minority represen-
tation in every representative body.
The history of the whole world
shows that the possession of unre-
stricted power, whether it be in
kings or legislative bodies, is danger-
ous — that it leads to abuse and cor-
ruption, and that the minority is a
check upon the majority. It tends
to prevent extreme measures. It
needs no argument to show that the
presence of a minority ready to op-
pose the extreme measures of the
majority and ready to expose the
tricks by means of which they pro-
pose to accomplish their ends, is of
the highest good to the people of the
state. A minority may be able to
point out errors of detail which may
have been made. Again. Mr. Chair-
man, how often it is that majorities
differ on questions of detail, then
the minority holds the balance of
power. How often it is that a par-
ticular law is passed, or a particu-
lar measure is adopted, not by the
representatives of the people, but by
a mere majority of those who repre-
sent but one-half of the people; and
wh^n you take a legislative body
elected on the plurality system and
then reflect that measures may be
carried out by a majority even of
these riien. it makes the matter ten
frdd worse. Mr. Chairman, look at
the history of reforms in govern-
ments all over the world, and what
does it show? It shows that all great
reforms have been inaugurated by
minorities, and finally carried
through by the impetus given them
by a small minority. Why is it so?
It is because there is a strong con-
servative principle among men which
causes them to cling to old institu-
tions, belonging to England; look at
the evils the poor people suffer, and
tell me if anything to benefit them
was ever carried through by the ma-
jority. No sir, these things are al-
ways started by a small number, who
feel that these principles are true.
They keep working away and the
time comes when their principles
are adopted by the majority. How
was it in reference to the homestead
laws? When the wife and children,
whatever misfortune, whatever re-
verses, might come upon the head of
the family, should have a shelter
and a refuge. I remember and my
friend on the left (Mr. Estabrook)
remembers and was an active mem-
ber at that time, when the consti-
tution framed by the state of Wiscon-
sin was voted down mainly because it
provided that the homestead should
be exempted from the debts of the
family. I remember how one of the
best members on that floor laid
down his commission and went home
saying that that one reason among
others that Wisconsin had. That was
presented originally by a minority,
and today it has the sanction of all
who have the framing of laws;, and
I doubt if today you find one man
who would say it should be stricken
from that constitution or statute
book Mr. Chairman, I know of no
book. Mr. Chairman, I know of no
more striking illustration of what
PROPORTIONAL REPRESENTATION
129
Thursday]
WAKELEY
July 27
may be accomplished by the sim-
ple entering in of this idea into the
legislative bodies of the country
than has been exhibited in the result
of the overthrowing of slavery in the
U. S. In the long struggle every
member here bore his part and I say
I refer to this only as a sign of
what may be thus accomplished.
I speak of it only as an illustration,
and as such I hope it will be receiv-
ed. Many of us remember when a
very small party represented it in the
house and Hale and Seward in the
senate. But we could see how it sud-
denly increased until it culminated in
a national triumph and in the events
of war resulted in its overthrow ulti-
mately. True, Mr. Chairman, that I
was not of the number. I shall per-
haps live as I have lived and die in
the belief that this great national
evil the good time might
have disappeared without the strife
that brought our institutions to the
brink of destruction. Others think
otherwise and regard this as the only
possible way.
Mr. Chairman, thanking the com-
mittee for the patience with which
they have listened to me and making
one other observation before con-
cluding.
For the ideas which I have advanc-
ed I make no claim of originality,
the form of expression only is my
own. They have been advanced far
more eloquently and advocated by
able thinkers and profound reasoners
on government in other countries as
well as this. In England, France
and Switzerland, and by men of re-
markable and comprehensive states-
manship. They have been adopted
and ratified by the people of the
great northwest in Illinois; and sir,
here in Nebraska the people will ap-
prove and ratify them, and sir, I
think we should do so here. I know
that this convention will rise against
all party consideration or local ad-
vantage in laying a fundamental
structure that shall stand when you
and I have passed away. Principles
that will remain when there shall
not be left one stone upon another
of this building we occupy. In this
question party considerations have
no place. Parties pass away but
principles are permanent and immut-
able.
Mr. MAJORS. Mr. Chairman. I
apprehend it is the pleasure of every-
member of this committee to advo-
cate the right when they find it and
we are not here to advocate our pet
views. I have listened with interest
to the argument of the gentleman
from Douglas (Mr. Wakeley) and
must acknowledge it has some force,
yet it appears to me that I can see
some principles in the working of
this minority representation that
might not work right. In present-
ing a case he has arranged numbers
that have worked well in the minori-
ty representation, by arranging the
number of representatives at nine
and number of voters at three thous-
and. I will arrange another set of
figures and see how it will turn out
in that direction. To illustrate we
have four representatives in one dis-
trict to be voted for at the same
time. There are six hundred voters
in the minority and nine hundred in
the majority party. The six hun-
dred by casting their votes for only
180
PROPORTIONAL REPRESENTATION
Thursday]
ESTABROOK
[July 27
two men would give them in the ag-
gregate twelve hundred votes for
earh of the two men. If the ma-
jority would cast their votes for three
men, and suppose they come to an
equal number the result would be
twelve hundred votes each, and in
that case the minority would tie, but
it is hardly to be supposed that the
majority would be prepared for this,
while on the other hand it wo.iid
naturally follow that tho .-ijnority
would resort to this advantage! and
in that case they would secure the
same representation as the nine hun-
dred.
So far as I understand the princi-
ple of our government its representa-
tion is, as clearly stated by the hon-
orable gentleman from Douglas, by
the masses of the people, rather than
to come up, as they did in the prim-
itive form of democracy, submit
their power to their chosen delegates
which they send here. I know that
there the minority have the same
opportunity to be represented as in
the old democracy form of govern-
ment and thev certainlv cannot claim
anything further, they must succumb
to the will of the majority. Then I
can see how this minority representa-
tion might work hardship. I just
submit these views that we may con-
sider together what would be the
result of the minority representation.
I do not hold that it is necessary at
all that we should adopt this system
of voting or this system of repre-
flentatinn in order to have that. I
hold that there are gentlemen iti
every party, where they conceive a
principle be right, have the moral
mAfthbod to stand by that principle
and defend it as has been done in
cases passed into history and has
finally triumphed by pressing the
truth they were in possession of upon
the consideration of the masses. I
do not hold that it is necessary in or-
der to purify legislative bodies that
this system should be inaugurated,
nor to send up representatives from
the minority party at home. Repre-
sentatives are sent from their dis-
tricts to represent the people of this
state, and will be held to account for
their action as representatives by
their constituents at home. I have
reason to believe there are men ca-
pable of wire-working and systemiz-
ing- so as to bring about results dele-
terious to the common people of the
country, they may do it for a time,
but the people will rise up and put
down such unfaithful representatives
and send out honest men from their
body. Under our present form I
think this has been frequently done,
and I think as a people in this state
we will be represented upon the old
basis of representation where the
majority shall rule, probably as cor-
rectly and successfully as we will to
inaugurate this new system..
Mr. ESTABROOK. Mr. Chairman.
I never in all my life have bestowed
as much thought on this subject as I
have tonight. It is an entirely new
theme to me, and knowing that the
matter had been presented in Illi-
nois, I made up my mind to vote for
a like proposition here to submit to
the people. I am not going now to
take a position for or against this
idea, I favor it in one respect, it is
new. I am glad to see my friend so
enthusiastic to bestow that richest of
FROPORTIONAL REPRESENTATION
131
Thursday;
ESTABROOK
[July 27
all boons to the free man, the right
of suffrage, even to the minority.
But sir, let me see a little how this
matter might work. We will sup-
pose that in a particular district the
■democrats have 900 voters and the
republicans 700, that there are three
candidates and each voter has three
votes to cast. Well, the democrats
will be tolerably apt "to cast their
three votes for each of the three can-
didates, that will be 900 each for the
democratic nominees, but the republi-
<;ans come up and know they have
but 700 votes for two giving them
1050 votes each and electing the
two candidates and the majority
"but one. Is not that possible? If
not I would like to hear the argu-
ment to meet it. If we are going to
adopt what we call the minority sys-
tem that shall give to the minority
the right to hold the majority in
their places. I do not believe I
would exactly be in favor of it. Now
then let me throw out this other
thought. Opposed to this scheme in
my own mind stands the theory of
■single districts, each district sending
out to the Legislature one individual
to be voted for by a given constitu-
■ency. That is to say, you have a
single district for Senator, and the
proposition of those who favor this
minority representation that in that
district it is not proposed to apply
to the Senate, it has not a universal
application, and if applied to repre-
sentation can only be applied to the
lower house. While you make a sin-
gle district in the Senate, you have
a district which shall send three to
the lower house and to those who
shall be elected from that representa
tive district apply the minority rule.
Let us see whether by the single dist-
rict system it would not be possible
that a majority should not have rep-
resentation. We will suppose for in-
stance that Sarpy, Cass and Saun-
ders counties are one senatorial dist-
rict, Cass and Saunders are repub-
lican but Sarpy is decidedly demo-
cratic. Now then, you make each
one of those counties a single rep-
resentative district. Cass goes
along about her business, Saunders
does the same, but Sarpy sends our
friend Grenell here to represent
them; does not the minority get the
representatives here? This feature of
single districts commends itself to
my regard. In the first place it is uni-
form in the lower house as in the
upper, in the next place it brings the
representative here? This feature of
face to face. Where you make a dis-
trict a single district you are apt to
make it of such dimensions as that
the particular interests of the dis-
tricts, and all the interests of the
district should be presented in the
person of the individual you send
to represent you in either branch.
While if you have one district and
send three individuals to represent
you, the stronger portion being in
Cass, it strikes me that Cass would
get them all if they sought to do it.
If the single district system can be
adopted, it seems to me every portion
of the state of Nebraska can be so
divided as that one man shall become
the embodiment of the constituency
he represents. So far as that is con-
cerned 1 have to acknowledge that
the single district system recom-
rhends itself to my regard. I only
132
PROPORTIONAL REPRESENTATION
Thursday!
STRICKLAND
[July 27
throw out these remarks now as the
objection occurred to me.
Mr. STRICKLAND. Mr. Chair-
man. I did not intend to say any-
thinR on this subject. I have lis-
tened with a great deal of pleasure to
my friend Judge Wakeley as I always
do, but I failed to hear any convinc-
ing argument that changes my mind
on this subject. The whole drift of
his argument is the representation
of party. A party is in the majority
in this country because it advocates
good men and good measures, or in
the minority because it advocates Im-
proper men and measures. He tells
you that a minority have in times past
away, along down through time, in-
augurated all these great impossibili-
ties. That is not a very proper word
to use but a better one than my
friend used. But did they ever in
England or any where else accom-
plish anything until they became
majorities? How did they become
majorities? Why by impressing them-
selves on the people, and the people
reflect back by electing men to rep-
resent them, and to represent this
truth. If Judge Wakeley's argu-
ment was right and carried its point
by reasoix. it ought to be apportioned,
and let us start a lot more majorities.
He says "How am I represented,
when the man who represents me
is one I am opposed to?" You are
represented by the man whom the
people thought was the better man
than the one you thought should be
returned. He, voting for a bad
man, or a bad principle, is not rep-
resented and should not be. Now, I
apprehend It Is just as necessary, and
always will be, in this country, to
have majorities and minorities, as
it is to have parties — one party a
check upon the other. But his prin-
ciple would leave a legislature all
scattered around indifferent to the
interests of anybody, but a majority
is responsible to the people for all
its acts. He speaks of the minority
exposing the majority. Why is there
anything done in this country, gen-
tlemen, in legislative bodies, by
night? Through the Press, the gen-
tlemen who advocate this question
scatter their documents boldly and
eloquently before the people. It has
been the custom of this country from
the start, from Whig and Tory,
where the great idea of a great prin-
ciple was struck when our forefathers
struck for liberty; they struck in op-
position to a number that was equal
to them in numbers. And they were
right; and notwithstanding that, and
they had used reason and argument,
and had supplicated to the throne of
grace — the king of England, and
they resolved to maintain their rights
from that time; right from the elec-
tion of the very first president; and
during his time, why, you remember
that but one vote in the Continental
Congress, saved Washington's head
to us and his name and fame for ever.
It kept the power and the ascendency
and when a party became rotten and
corrupt, and the intelligent people,
reflecting the mind and wishes of
the majority, desired a change, that
change was accomplished by the ac-
tion of majorities. What becomes of
this new majority, when it becomes
corrupt, fails to do its duty, in
representing the interests of the peo-
ple who put them in the position?
PROPORTIONAL REPRESENTATIO:^
13J
Thursday]
STRICKLAND-MAXWELL
[July 27
Down they go to a minority again. I
think it is just as necessary to have
these changes as that we should
have hot and cold air, and winds to
purify the atmosphere — just as nec-
essary to have majorities and mi-
norities. In the particular case my
friend speaks of, here are 900 against
500 of one way of thinking, and 400
left. Why, how simple! This gets
back to the fundamental law of dem-
ocratic government, my friend argued
so eloquently — the 500 representing
one set of principles, perhaps one
idea, and embody it in the one man,
vote for the one man; what shall the
400 do? Are they not represented?
Why, let them show by argument
and reason, that they are right, and
the 500 are wrong. It is one of the
grandest principles in this govern-
ment that majorities shall rule, gov-
ern, control and legislate. And they
exercise that power and will be held
strictly responsible for the exercise
of it. How little it takes to change
a great state like Pennsylvania! How
New York has shuffled to and fro.
For 25 years the state government
changes as much as once in four
years. Why it is right. Now, my
friend alluded to the labor reform
party which might claim representa-
tion. Why, if he would go into all
the schisms and isms, he would havb
the labor reform, woman's rights, the
; Chinamen, the Hindoo and the In-
I dian represented — one who believes
I in a God and one who don't. Why,
i what an idea for a great man like
i him to argue that every freckle upon
the body politic is to be represented
here. There is no argument in that,
all men electors, are free and equal.
Equal in their rights, equal in repre-
sentation, and at the polls, each is
a sovereign in himself to exercise the
elective franchise and go to the
polls and vote for one man in the ag-
gregate, and his views are represent-
ed.
Now, why this wonderful change
in our state? In our own county, only
two years ago, we sent a fine gentle-
man who was a fine, clever demo-
crat, and he came as the representa-
tive of the majority of the county
while the popular majority is re-
publican. Who are oppressed by
this system, and who are not? If
we send lepresentatives as we did
last winter, and they perform their
duties honorably, and again we send
these men, I pray God we will; and I
trust the coUnty will endorse us.
Why, mix this question up, in this
wise. Look at these gentlemen ap-
pearing here, and when in our coun-
ty it is said there is a majority of 500
in politics against them. They sent
these men here because they wanted
their energy and ability. This ques-
tion of minority representation is as
complicated as a steam engine, and
as little understood by the common
people, but yet, like a steam engine
if a little thing is out of place the
whole thing goes wrong. As my friend
Estabrook would say, he is opposed
to the system because he don't un-
derstand it. Well, I am in the same
fix; but I do understand the old sys-
tem and am satisfied.
Mr. MAXWELL. Mr. Chairman.
I move that the committee now rise,
report progress and ask leave to sit
again.
The motion was agreed to.
134
PK( )P0IIT10N AL REPRESENTATION
Friday]
FIFIELD— ESTABROOK
[July 28
Mr. STEVENSON. Mr. President.
The committee of tlie whole have had
under consideration the report of the
committee on electoral and repre-
sentative reform, report progress,
and ask leave to sit again.
Adjournment.
Mr. WEAVER. I move we now ad-
journ.
Leave of . Absence.
Mr.LEY. I ask leave of absence
until Thursdaj'.
Leave granted.
Adjournment Again.
Mr. GRAY. I move we adjourn un-
til 8 o'clock to morrow morning.
Mr. MANDERSON. I move to
amend by saying 9 o'clock.
The amendment was agreed to.
So the convention (at 9 o'clock
and 45 minutes) adjourned.
TWENTY-NINTH DAY.
Friday, July 28, 1871.
The convention was called to or-
der at nine o'clock by the president.
Prayer.
Prayer was offered by the chaplain
to the convention. Rev. L. B. Fifield,
as follows:
Great, Wise and Holy Lord and
King; many gifts and mercies we
seek in Thee. May this people find
law and light in Thee alone. May
the rule that is here made be so
strong and so just that every one
shall be satisfied and no one suffer.
Here may learning, ambition and all
wealth be consecrated on the altar
of truth to the service of God, now
and ever. Amen.
Reading of the Journal.
The journal of the last day's pro-
ceedings was read and approved.
Oommuiiications and Petitions
Mr. ESTABROOK. Mr. President.
I have a petition.
The following is the petition:
To the Constitutional Convention of
Nebraska.
We, the undersigned, respectfully
ask that the right of suffrage be con-
ferred upon women, upon the same
conditions and to the same extent as
upon men.
Signed, M. Mills, John DeLang
and twenty-four others.
The PRESIDENT. The petition
will be referred to the committee on
rights of suffrage.
Reports of Standing Committee.
Mr. WEAVER. Mr President. I
have a report of the committee on
counties, and ask that it be read by
title.
The PRESIDENT. The report will
be read twice by title and 150 copies
ordered printed. The secretary will
read the report of the standing com-
mittee on rights of suffrage, by title.
The secretary read the report by
title.
The PRESIDENT. The report will
be referred to the committee of the
whole.
Mr. WOOLWORTH. Mr. Presi-
dent. The select committee which
has had under consideration the sub-
ject of a board to take charge of
Public Lands and Buildings are ready
to report this morning. When this
report is received, the Executive Bill
will be ready to be disposed of in the
convention. I desire that this article
PROPORTIONAL REPRESENTATION
136
Friday'
WOOL WORTH- S COFIELD
[July 28
may be considered finally this morn-
ing. It will be utterly impossible for
me to be here next week, probably
any part of it, and I desire before I
go away that the consideration of this
article will be completed. I earnest-
ly hope the Executive article will
come up this morning.
Mr. McCANN. Mr. President. The
consideration of this report has been
put off again and again on account of
gentlemen's absence. I look forward
to the time that I may not be pres-
ent here, if this convention is to con-
tinue until the holidays, and I, too,
would like to have those reports in
which I am personally interested.
Yet I will cheerfully give way for the
taking up of this article, with the
understanding that the report of the
committee on Revenue and Finance
will be taken up next.
The PRESIDENT. The question is
on taking up the Executive article
in convention.
Mr. SCOFIELD. Mr. President.
Before that motion is put I would
like to submit the report from the
select committee to which was refer-
red the subject of Land Commission-
er and Superintendent of Public
Buildings.
The secretary read the report as
follows:
The select committee to which was
referred the subject of land commis-
sioner and superintendent of public
lands and buildings have had the
several propositions referred to th'em
under consideration and recommend
that the Executive article be amend-
ed by inserting in the third line of
the first section, after the words "at-
torney general," the words "commis-
sioner of Public lands and buildings."
That a new section be inserted in
said article to be numbered "20"
(the numbers of the sections follow-
ing being changed) the following:
The commissioner of public lands
and buildings, the secretary of state,
treasurer and attorney general shall
form a board which shall have joint
supervision and control of all the
grounds and lands of the state, the
state prison, asylum and other in-
stitutions thereof, except those for
educational ptirposes and shall per-
form such duties and be stibject to
such rules and regulations as may
be prescribed by law.
That the 2 3rd section of said arti-
cle be amended by adding the words
"The salaries of the commissioners
of public lands and buildings shall
be
G. B. SCOFIELD, Chairman.
By consent of the committee we
stibmit the following report:
"A land commissioner shall be
elected W'ho shall have control and
sale of all lands belonging to the
state as provided by the legislature.
A commissioner of public buildings
shall be elected who shall have con-
trol of all public buildings and
grounds belonging thereto and shall
let all new contracts for new state
buildings, additions, repairs and sup-
plies as shall be prescribed by law.
(Signed) J. N. CASSELL.
W. H. CURTIS.
Mr. WOOLWORTH. Mr. Presi-
dent. I move the convention take up
the executive article.
Mr. MYERS. Mr. President. I
hope the convention will adhere to
its rules and let this come up in the
afternoon in its order.
The PRESIDENT. The question
is on the motion of the gentleman
from Douglas (Mr. Wool worth) to
take up the executive article in con-
vention.
13("»
PRAYER— WOMAN SUFFRAGE
Friday]
CASSELIi-CURTIS-WOOL WORTH-GRAY
[July 28
The motion was not agreed to,
Mr. MAXWELL. Mr. President. I
move the report of the select commit-
tee just read be referred to the com-
mittee of the whole.
The motion was agreed to.
Mr. BALLARD. Mr. President. I
move we go into committee of the
whole on the report of the committee
on state, county and municipal in-
debtedness.
Mr. McCANN. Mr. President. I
now insist on my motion — I move
to amend the motion of the gentle-
man from Washington (Mr. Ballard)
by substituting the report of the
committee on revenue and finance.
Mr. WOOLWORTH. Mr. Presi-
dent. I hope that amendment will
prevail, as the gentleman (Mr. Mc-
Cann) gave way for my motion only.
The PRESIDENT. Gentlemen,
this amendment to the executive bill
has just been referred to the commit-
tee of the whole.
Mr. MYERS. Mr. President. I
move that the committee of the whole
be discharged from the further con-
sideration of this amendment on
the question of the executive.
The motion was agreed to.
Mr. BALLARD. Mr. President. I
•will withdraw my motion.
Mr. ESTABROOK. I think we can
clean up everything in regard to the
executive and school article.
Mr. McCANN. I withdraw my mo-
tion.
Mr. GRAY. Mr. Chairman. I
move that we consider now the re-
port of the executive committee In
connection with the report of the
I special committee.
1 The motion was agreed to.
The secretary read the report as
follows:
The select committee to which was
referred the subject of land commis-
sioner and superintendent of public
buildings have had the several propo-
sitions referred to them beg leave to
report that they have had the same
under consideration and recommend
that the executive article be amend-
ed by inserting in the third line of
the 1st section after the words "attor-
ney general" the words "commission-
er of public lands and buildings."
That a new section be inserted in
said article to be numbered "20" (the
numbers of the section following be-
ing changed) the following:
The commissioner of public lands
and buildings, the secretary of state,
treasurer, and the attorney general,
shall form a board which shall have
general supervision and control of all
the buildings, grounds and lands of
the state ,the state prison, asylum,
and all other institutions thereof, ex-
cept those for educational purposes,
and shall perform such duties and
be subject to such rules and regula-
tions as may be prescribed by law.
That the 2 3rd section of said arti-
cle be amended by adding the words
"the salaries of the commissioners of
public lands and buildings shall be —
G. B. SCOFIBLD, Chairman.
By consent of the committee we
submit the following report:
A land commissioner shall be
elected who shall have control and
sale of all lands belonging to the
state as provided for by the legisla-
ture.
A commisioner of public buildings
shall be elected who shall have con-
trol of all public buildings and
grounds belonging thereto and shall
let all contracts for new state build-
COM. PUBLIC LANDS AND BUILDINGS
137
Friday]
WOOLWORTH
[July 28
ings, additions, repairs and supplies
as shall be prescribed bv law.
(Signed) J. N. CASSELL.
W. H. CURTIS.
Mr. WOOLWORTH. Mr. Chair-
man. Perhaps it is desirable to state
to the convention that these amend-
ments which are proposed by the re-
port of the special committee refer
to the report of the executive com-
mittee. It is proposed in the first
place to amend the first section of
the executive article by inserting, in
the third line, after the word "gene-
ral" the words "commissioner of
public lands and buildings." The
convention will observe that when
this amendment is made, the eighth
line now applicable to the six officers
of the executive department, that
those officers shall perform such du-
ties as may be prescribed by law, will
also be applicable to the commission-
ers of public lands and buildings, as
well as the other executive officers;
and also the twenty-sixth section pro-
viding for bonds, will apply to that
officer as well as to the others. It
is proper to state, sir, that another
proposition Is brought in here pro-
Tiding for two instead of one officer.
That is to say — a commissioner of
public lands and superintendent of
public buildings, to elect two officers
to have charge of these matters in-
stead of one. That is a matter which
I suppose the convention will now
have to determine. In order to bring
the matter before the convention I
move to amend the first section strik-
ing out the word "and" before the
words "attorney general" in the
third line, and inserting after the
■words "attorney general" the words
"and commissioner of public lands
and buildings."
Mr. GRIGGS. Mr. Chairman. It
appears to me as if the duties of state
land commissioner would be all that
one person ought to perform, and
I would like to hear the ideas of the
chairman of the executive committee
upon that question. As I understand
this amendment it only provides for
one commissioner who shall be
commissioner of state lands and also
of public buildings.
Mr. WOOLWORTH. Mr. Chair-
man. So far as I am concerned I
have no particular choice in the mat-
ter. It seemed, when the matter was
before the committee of the whole the
other day, to me, at least, as if the
idea was to create as few officers as
necessary, and the object of making
one instead of two officers was merely
for the purpose of economy. I ap-
prehend sir, that for a year to come
the commissioner of public lands
will have a great deal to do. Let
me state somewhat in detail what his
duties, in my view, should be. And
I took the pains, when home the last
time, to advise upon this subject with
Mr. Davis, who is the commissioner
of lands of the Union Pacific railroad
company, and as such officer has
sold, within the past year, between
one and two million of acres of land.
He was the gentleman who organized
the land department of that com-
pany, and has carried it to a point
of very great perfection. I thought,
of all the gentlemen within my ac-
quaintance, he was the one best fit-
ted to apply to for information up-
on the subject. His idea was that
there should be one man charged
I
138
COM PUBLIC LANDS AND BUILDINGS
Friday)
WOOLWORTH
[July 28.
with this business; and that during
the first year of the occupancy of his
office he would be obliged to labor
very hard. First in gathering up the
land, or in finding out what lands
there are and what lands there ought
to be; and in the next place making
his plats, preparing his books of rec-
counts, and other records for the pu"-
pose of keeping all accounts of the
sales and other distribution of these
lands. To attend to this matter, we
talked over, for the first year would
be a very onerous task. But he
said after that work was once done
a single man would be able to carry
on the business of the office without
being employed but a portion of the
time. This was his idea. So much,
sir, for that office.
Now, as to the duties of an officer
who shall be called a superintendent
of public buildings. What will he
have to do? He will have charge of
all these state public buildings scat-
tered throughout the state. Not to be
sure a personal charge of the ash
pans and the other duties that would
naturally devolve upon a janitor; but
the general care of the buildings. See
to the insurance, and that there was
proper protection from fires and
other such like matters. Also to
the contracts and the work of en-
larging or of erecting the public
buildings. The question is are these
duties incompatible? If they are not
the next is whether they can be dis-
charged by one man. Now, that they
are not incompatible, if a man has
the time; if a man keeping but few
offices is able to fill them; that I ap-
prehend there is no sort of question;
but whether a man, for a year or so.
will be able to attend to all these du-
ties, is indeed, I think, a very doubt-
ful question. But, sir, in the dis-
charge of these duties, which Mr.
Davis told me a land commissioner
would have to do, he would necessari-
ly, whether he were vested with these
two offices or charged with the duties
of one alone, be obliged to have
clerks and draftsmen; draftsmen to
make these plots, clerks to work up
the catalogue, the lists of the differ-
ent kinds of lands, which the state
owns, and get them in order. Then,
beyond that, general attention to the
securities which the state if it has
not in fact, at any rate, ought to have,
and all the sales of the public lands.
In the discharge of these duties, I
say, whether one or two offices be
created, the land commissioner will
be obliged to have some assistance of
a clerical nature.
If the gentleman asks for my own
personal opinion upon this subject
my idea would be to create one office-
— I am not strenuous — and then
leave it to the legislature, under one
of the sections of the executive arti-
cle, the 24th section, to provide for
such temporary agents, agents ap-
pointed for a temporary purpose, to-
discharge any duties that might seem
to be of temporary urgency and ne-
cessity. That is my idea. I have no-
personal wishes in the matter.
Mr. CASSELL. Did I understand
that the gentleman from Gage of-
fered an amendment?
Mr. GRIGGS. I do not.
Mr. CASSELL. I would move tO'
amend by inserting after the word"
"attorney" the words "land commis-
COM. PUBLIC LANDS AND BUILDINGS
139
Friday]
WOOLWORTH-C A S SELL— MYERS
[July 28
sioner and commissioner of public
buildings."
Mr. WOOLWORTH. As the sec-
tion now stands, without amendment
either from the special committee or
the gentleman from Lancaster, there
will be but the governor, lieutenant
governor, secretary of state, auditor
of public accounts, treasurer, super-
intendent of public instruction, and
attorney general, as the officers of
the executive . department; if the
amendment proposed shall obtain,
then there will be, besides these offi-
cers, the office of commissioner of
public lands; if the amendment of
the gentleman from Lancaster should
obtain, there will be, besides the of-
ficers of the executive department as
it now stands, both a commissioner
of public lands and a commissioner of
public buildings.
Mr. MYERS. If this proposes to
create an additional office to that of
land commissioner, I desire a defi-
nite expression of opinion. I call
for the ayes and nays on the adop-
tion of the amendment.
Mr. ESTABROOK. It is under-
stood that these two commissioners
are to constitute a part of the board
of commissioners, or are they, ac-
cording to this amendment, if adopt-
ed, to be separate and independent
officers?
Mr. WOOLWORTH. They would
be independent.
Mr. HASCALL. As I understand
all we do now is create the of-
fice, and in our future action we de-
cide whether he shall act separately
or in connection with other members
of the board.
Mr. CASSELL. Mr. Chairman. 1
had a conversation this morning
with the auditor of the state, and he
says that the duties which devolve
upon the land commissioner will be
as much as he and a clerk or two
can perform; and there is a very
great necessity for a commissioner of
public buildings, and he would have
a great deal of work to perform. The
idea of the gentleman that this is
going to be more expensive to the
state is, in my judgment, very errone-
ous. It is well known by the gentle-
men of this convention, that, at the
present time, there are no less than
from twelve to twenty different in-
dividuals employed, and under pay
from the state to perform just half
the duties, the gentleman from Doug-
las proposes to have a land commis-
sioner. In my opinion, while this
■will create a little expense, the state
will save a good deal more by having
this conducted by one man, and he
under the control of the legislature,
than to pay so many different men.
It has been said that many thousand
dollars might have been saved to
the state in the last two years, if
such a commissioner had been in ex-
istence; and if the affairs had beeu
conducted that way instead of pro-
miscuously, as they have been. The
state ought to create the position.
The grounds around this capitol
need ornamenting. Already over
$2,000 have been expended over them
no-vM, and what does it amount to?
Some gentlemen have said $50 would
have done it and another said it
could have been done for $20. Now,,
why all this expenditure? The reas-
on of it is simply because these mat-
140 COM. rUBLIC LANDS AND BUILDINGS
Fridayl
CA SSELL-TOWLE
[July 28
ters have been conducted too loosely,
and the reason of that is — there has
been no one whose duty it was, es-
pecially, to attend to these matters.
We should appoint some man, with a
salary; and if we did we would save
thousands of dollars to the state.
There are many things about this
building that require attention, the
lightning rods, etc.; and we ought to
have a commissioner to attend to
these matters. I think if there had
been a commissioner appointed dur-
ing the last two years there would
have been enough saved to pay his
salary for the next ten years. My
idea is that this commissioner should
have the power to make contracts for
the public buildings, buy supplies,
coal, etc. The coal, for instance,
should be bought in the summer,
when coal is cheap, freights low.
Several hundred dollars could be
saved in this way each year; but we
find that coal has been bought in
the winter, when it is the highest,
and freights, too, are higher. I think
Mr. President, the duties wil be too
onerous for one man to perform, and
I am in favor of two commissioners.
The PRESIDENT. The question is
upon the amendment offered by the
gentleman from Lancaster.
Mr. TOWLE. Mr. President. I
would like to say a word, if I may be
allowed. ("Leave" "Leave.")
I hope the amendment of the
gentleman from Lancaster will not
prevail, as it is loading down the
constitution. I think a man of first-
<;lass ability can perform all the du-
ties of these offices, with a corps of
good clerks under him. There will
be scarcely any building done by
these officers. I undertake to say
that there will not be much duty for
this commissioner to do in a short
time. Then we find we have an offi-
cer elected with a salary of perhaps
$l,000or$l,800,and nothing for him
to do, except, perhaps to look after
the trees, put up lightning rods, etc.
It is necessary for some man of abili-
ty and character to take hold of our
land affairs. I believe, sir, that the
two can be combined in one and then
there will not be half enough for him
to do, except the first year, which
will be occupied in bringing order
out of chaos.
("Question," "question.")
The secretary read the amend-
ment as follows: "After the wora
"general" insert, "land commissioner
and commissioner of public build-
ings."
The yeas and nays being demand-
ed, the secretary proceeded to call
the roll.
The President announced the re-
sult, — ayes 19, nays 28 — as follows:
AYES.
Ballard,
Cassell,
Curtis,
Estabrook,
Granger,
Griggs,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Abbott,
Boyd,
Campbell,
Eaton,
Gibbs,
Gray,
McCann,
Majors,
Mandersoni,
Maxwell,
Moore,
Newsom,
Parchin,
Philpott,
Reynolds —
19.
NAYS.
Hascall,
Lake,
Ley,
Lyon.
Mason,
Myers,
COM. PUBLIC LANDS AND BUILDINGS
141
Friday]
TOWLE— WOOL WORTH— ROBINSON
[July 28
Neligh, Tisdel,
Price, Towle,
Scofield, Vifquain,
ShafE, Wakeley,
Sprague, Wilson,
Stevenson, Woolworth, — 28.
Thummel,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President. — 5.
Robinson,
So ttie amendment was not agreed
to.
The PRESIDENT. The question
is upon the motion to strike out the
word "land" in the 3rd line, and in-
sert "public buildings".
Mr. WOOLWORTH. Mr. Presi-
dent. The select committee propos-
ed, in the first amendment, one oflBce.
and to have the person filling the of-
fice discharge such duties as shall
be prescribed by law, just the same
as any other state officer. Section
20 follows to the effect that this of-
ficer, together with the secretary of
state, treasurer, and the attorney
general shall form a board which
shall have joint control of the lands
and public buildings of the state, ex-
cept such as relates to education, and
Shall perform such duties as shall be
prescribed by law. That is to say, that
he is a special officer who shall have
special duties to perform.
The secretary read the amendment
offered by the gentleman from Saun-
ders ( Mr. Sprague) as follows:
Strike out from the third line the
words, "public buildings and," and
insert in the third line after the word
"state" the words "who shall also
be a commissioner of public build-
ings."
The PRESIDENT. The question
is on the amendment offered by the
gentleman from Saunders (Mr.
Sprague.)
The convention divided and the
amendment was not agreed to.
Mr. ROBINSON. Mr. President. I
have an amendment which I desire
to offer, it applies to the first, second
and third sections. I have written
out the three sections embodying the
amendment which I will send up.
The secretary read the amendment
as follows:
Sec. 1. The executive department
shall consist of a governor, lieuten-
ant governor, secretary of state, au-
ditor of public accounts, treasurer,
superintendent of public instruction,
attorney general and commissioner
of public lands and buildings, who
shall each hold his office for the term
of two years from the first day of
January next after his election and
until his successor is elected and
qualified. Provided, however, that
the first election of said officers shall
be holden on the — day of 187 —
and the officers then elected shall
each hold his office for the term of
one year and until his successor is
elected and qualified. They shall, ex-
cept the lieutenant governor, reside
at the seat of government during
their term of office and keep the pub-
lic records, books and papers there
and shall perform such duties as may
be prescribed by law.
Sec. 2. The treasurer shall be
ineligible to said office of treasurer
for two years next after the end of
the time for which he was elected.
ELECTION.
Sec. 3. The officers of the execu-
tive department shall after the first
election hereinbefore provided for
be elected at the general election for
members of the house of representa-
tives to be holden in the year 1872,
and every two years thereafter at
such times and places as may be pre-
scribed by law.
142
EXECUTIVE STATE OFFICERS
Friday 1
PHILPOTT— ROBINSON
[July 38
Mr. PHILPOTT. Mr. President. I
•offer an amendment to the amend-
ment. It will leave the first section
as it is except adding the words "as
herein provided," and amend the
third section so as to read "the offi-
cers of the executive department
shall be elected for a term of one
year at the general election for mem-
bers of the house of representatives
to be held in the year 1871, and there-
after the term of office shall be two
years, and said officers shall be elect-
ed at such time and place as may be
prescribed by law."
Mr. ROBINSON. I will state, Mr.
President, I have looked over this
section carefully and I am very cer-
tain my amendment covers just what
I meant it to, and I don't know that
this amendment does. The only
change I intended to make was fix-
ing the time of the election.
Mr. TOWLE. Mr. President. I
think that matter of time should be
left to the committee on schedule.
Mr. ABBOTT. Mr. President. If
the amendment to the amendment
was not seconded, I move to amend
the amendment by striking out the
second section.
The aj'es and nays were demanded.
The secretary called the roll and
the President announced the result.
Ayes, 2 5, nays, 24, as follows:
Abbott,
Boyd,
Cassell,
Estabrook,
Oibbs,
frfanger,
Gray,
Griggs,
YEAS.
Hascall,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Scofield,
Thummel,
Wakeley,
Mr. President. -
-25.
NAYS.
Robinson,
Shaff ,
Sprague,
Stevenson,
Stewart,
Thomas,
Tisdel,
Towle,
Vifquain,
Weaver,
Wilson,
Woolworth, — 24.
Majors,
Maxwell,
Neligh,
Philpott,
Reynolds,
Ballard,
Campbell,
Curtis,
Eaton,
Hinman,
Mason,
Manderson,
Moore,
Myers,
Newsom,
Parchin,
Price,
ABSENT AND NOT VOTNG.
Grenell, Spiece.
Parker,
Mr. PHILPOTT. Mr. President. I
withdraw m amendment for the pur-
pose of considering the amendment
of my colleague (Mr. Robinson.)
Mr. GRAY. Mr. President. I
move to amend the first section of the
amendment by inserting the words
"but when that day shall fall on Sun-
day the term of office shall commence
on the following day."
Mr. ROBINSON. I do not see
what possible objection there can be
to the term of office commencing on
Sunday, there is nothing wicked about
it that I know of. It is not neces-
sary they shall be sworn in on the
day the term commences.
Mr. LAKE. Mr. President. I
agree with the gentleman from Lan-
caster (Mr. Robinson) that it is en-
tirely useless to put in this clause.
There is a provision that all these
officers shall hold their office until
their successors are qualified, and
they would not be qualified if
EXECUTIVE STATE OFFICERS
143
Friday]
GRAY— THOMAS
[July 2H
the year commenced on Sunday until
the following day.
Mr. GRAY. I withdraw the
amendment.
Mr. THOMAS. Mr. President. I
understand the object of this section
is to have the election of our state
officers in the same year as the Presi-
dential election. I hope the amend-
ment will not prevail, for I think it
would be much better that the state
officers should not be elected in that
year.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Lancaster (Mr. Robinson).
The ayes and nays were demanded.
The secretary called the roll, and
the President announced the result,
ayes 25, nays, 22, as follows:
YEAS.
Abbott,
Ballard,
Cassell,
Curtis,
Granger,
Gray,
Griggs,
Hascall,
Kenaston,
Kilburn,
Kirkpatrick,
McCann,
Majors.
Boyd,
Campbell,
Eaton,
Estabrook,
Gibbs.
Hinman,
Lake,
Ley,
Lyon,
Mason,
Maxwell,
Manderson,
Moore,
Myers,
Neligh,
Philpott,
PricQ,
Robinson,
Stewart,
Tisdel,
Thummel,
Weaver,
Wilson, — 25
NATS.
Newsom,
Parchiu,
Robinson,
Shaff
Sprague,
Stevenson,
Thomas,
Towle,
Vifquain,
Wakeley,
Woolwofth,-
-22.
ABSENT OR NOT VOTING.
Grenell, Splece,
Parker. Mr. President.
Scofield.
The PRESIDENT. The secretary
will read section four.
Mr. HINMAN. I rise to a point of
order. I do not know that these sec-
tions have passed as amended.
The PRESIDENT. The gentle-
man is right. The question now is
upon the adoption of the first section,
as amended; and will then recur on
section two and three.
The section was adopted.
The PRESIDENT. The question is
on the adoption of section three.
Mr. HINMAN. I wish to re-in-
state section two, with this addition.
After the word "The" add "officers of
the executive department." and
strike out the words "he was," and
insert "they were."
Mr. NEWSOM. As a substitute, Mr.
Chairman, to the gentleman's motion
I offer the following — "The treasur-
er shall be ineligible for the office of
treasurer for two years after he shall
have served two consecutive terms."
Mr. STEVENSON. I move to
amend by inserting "the balance of
the executive officers."
The President. That would hard-
ly be in order at this moment.
Mr. HINMAN. The object is sim-
ply to destroy the use of the patron-
age of these officers for securing their
re-election. I believe the routine of
office is better, if you cannot change
the features of the state fdr two
years, by at least having another
complexion. These men learn too
much in two years.
144
EXECUTIVE STATE OFFICERS
Friday]
ROBINSON-PHILPOTT
[July 2g
Mr. ROBINSON. If I was not in
favor of any provision of this kind
I should certainly vote for the
amendment. Now the meaning of
the amendment, as I would construe
it, is, that he must serve two terms;
and suppose, in order to make him-
self eligible for the third term, he
should resign? It seems to me the
amendment is deQcient.
Mr. ABBOTT. If the mover of
this resolution will withdraw it, and
offer one making all the executive of-
ficers ineligible, I will vote for it,
but I see no reason for doing it in
the case of one man and not all.
The yeas and nays were demand-
ed.
The secretary called the roll, and
the president announced the result,
yeas, 16; nays, 31, as follows:
YEAS.
Eaton,
Hascall,
Kenaston,
Kirkpatrick,
Lake,
Mason,
Manderson,
Maxwell,
Abbott,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
Estabrook,
Gibbs,
Granger,
Gray,
Griggs,
Hinman,
Kilburn,
Ley.
Lyon,
McCann,
Moore,
Newsom,
Sprague,
Stevenson,
Thomas,
Towle,
Wakeley,
Woolworth,-
-16.
NAYS.
Majors,
Myers,
Neligh,
Parchin,
Philpott,
Price,
Reynolds,
Robinson,
Shaff,
Stewart,
Thummel,
Tisdel,
Vifquain,
Weaver,
Wilson,. — 31.
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President, — 5.
Scofield,
So the substitute was not agreed
to.
The PRESIDENT. The question
now recurs on the proposition of the
gentleman from Lincoln.
Mr. McCANN. I offer a substitute
— "the oflBcers named in this section
shall be ineligible to their respective
offices for two years next ensuing,
after having served two consecutive
terms."
Mr. PHILPOTT. Mr. President. I
am opposed to the motion, for several
reasons
The PRESIDENT. The ayes and
nays are called and no debate is
in order, without general consent.
Mr. BALLARD. Mr. President. I
wish to offer an amendment.
The PRESIDENT. Has he leave?
("No," "no," "Leave, leave.")
Leave not granted.
The PRESIDENT. Pro tempore.
The question is upon the substitute.
"The officers named in this sec-
tion shall be ineligible to their re-
spective office .sfor two years next en-
suing after having served two con-
secutive terms."
The ayes and nays being demand-
ed the secretarv proceeded to call the
roll.
Mr. PHILPOTT. (When his name
was called) Mr. President. I rise to I
explain my vote, I will not vote to |
make a man ineligible to office with- i
out good cause. For that reason, I !
vote no.
The President announced the re-
sult, ayes, 22; nays, 26, as follows:
OFFICERS ELIGIBILITY FOR OFFICE
145
Friday]
MANDERSON— MYERS-HASCALL
[July 28
AYES.
Boyd,
Campbell,
Curtis,
Granger,
Griggs,
Hascall,
Hinman,
Kirkpatrick,
Lake,
McCann,
Mason,
Abbott.
Ballard,
Cassell,
Eaton,
EKtabrook,
Gibbs,
Gray,
Kenaston,
Ley,
Lyon,
Majors,
Manderson,
Myers,
Maxwell,
Moore,
Newsom,
Price,
Sprague,
Stevenson,
Thummel,
Thomas,
Wakeley,
Wilson,.
Woolworth,-
-22.
NAYS.
Neligh,
Parchin.
Philpott,
Reynolds.
Robinson,
Scofield,
Shaff,
Stewart,
Tisdel,
Towle,
Vifquain,
Weaver, — 2C.
ABSENT OR NOT VOTING.
Grenell,
Parker,
Speice,
Mr. President, — 4.
So the amendment was not agreed
to.
The PRESIDENT Pro tempore.
The question now recurs upon the
proposition of the gentleman from
Lincoln (Mr. Hinman.)
The secretary reads:
"All officers of the executive de-
partment shall be ineligible for office
for two years next after the term of
office for which they were elected."
The ayes and nays heing demand-
ed, the secretary proceeded to call
the roll.
I The President announced the re-
j suit, — ayes, 15; nays, 33, — as fol-
j lows:
' 10
AYES.
Shaff,
Sprague,
Stevenson,
Stewart,
Thomas,
Vifquain,
Weaver, — ^15.
NAYS.
-33.
Hinman,
Ley,
Mason,
Moore,
Neligh,
Newsom,
Parchin,
Price,
Abbott, Lyon,
Ballard, McCann,
Boyd, Majors,
Campbell, Manderson,
Cassell, Maxwell,
Curtis, Myers,
Eaton, Philpott,
Estabrook, Reynolds,
Gibbs, Robinson,
Granger, Scofield,
Gray, Thummel,
Griggs, Tisdel,
Hascall, Towle,
Kenaston, Wakeley,
Kilburn, Wilson,
Kirkpatrick, Woolworth,-
Lake,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parkei*, Mr. President, — 4.
So the amendment was not agreed
to.
Mr. MANDERSON. Mr. President.
I move to insert in Sec. 2, the follow-
ing:
"The treasurer shall be ineligible
to the office of treasurer for two
terms next after the two years for
which he was elected."
Mr. MYERS. Mr. President. I
move to amend the section by insert-
ing "The treasurer shall be ineligi-
ble to any office under the sun."
Mr. HASCALL. I move to
amend by adding "or under the
moon," also.
Mr. MANDERSON. Mr. President.
It seems to me this is a very proper
rule to apply to the disbursing of-
ficer of the state. I would not ap-
14t)
ELIGIBILITY OF STATE TREASURER
Friday)
MANDKRSON-ROBINSON-GRIGGS
lJul.v28
ply It to all offlrers. but the man who
handles \hv money of the state
should be frequently relieved. The
disbursinRofficers of the United States
army are frequently relieved, and it
is found to be a wholesome regula-
tion. It is customary to have army
disbursing officers turn over all they
have to account for and make proper
accounting not only to the officer who
relieves them, but to the government.
One officer is sent to relieve another
at some post and he is sent to some
other and it is necessary he should
turn over and account for all the
property and money that has come
into his possession, and it seems to
me is a good rule.
Mr. ROBINSON. Mr. President. I
am opposed to this amendment. It
may render a man ineligible for life;
at any rate ten years may intervene
between the terms that he holds.
Mr. MANDERSON. To relieve it
of that objection I would insert the
■word "consecutive."
Point of Order.
Mr. MYERS. Mr. President. This
is the same question on which the
convention has just passed and
therefore it is not in order.
Mr. KIRKPATRICK. Mr. Presi-
dent. It strikes me sir, that the pro-
position is clearly out of order, but
if it is held in order I hope it will
not be adopted.*
Mr. GRIGGS. Mr. President.
Neither of the gentlemen who have
last spoken upon this subject have
raised the point of order. I now
rise to a point of order. I hold that
the amendment is not in order. I will
read from Cushing's Manual, Section
7, on anipndments.
"If an amendment is proposed by
inserting or adding a paragraph or
words, and the amendment is reject-
ed, it cannot be moved again to in-
sert the same words or a part of
them: but it may be moved to insert
the same words with others, or a part
of the same words with others^ pro-
vided the coherence really make
them different propositions."
Now I understand that the gentle-
man's amendment is just the same
as that offered by the gentleman
from Otoe (Mr. Mason) which the
convention voted down, and under
this rule it is out of order.
Mr. MANDERSON. Mr. President.
I will explain
Mr. MYERS. I call the gentleman
to order.
The PRESIDENT. If the gentle-
man desires to speak to the question
of order, he is in order.
Mr. MANDERSON. I do, Mr. Presi-
dent. This proposition differs from
the one offered by the gentleman
from Otoe (Mr. Mason) in that it
requires that he shall be ineligible
for two terms, the change of words
makes it a different proposition.
The PRESIDENT. The proposi-
tion is in order.
Ineligibility of Treasurer.
The PRESIDENT. The question is
on the adoption of the proposition.
The ayes and nays are demanded, the
secretary will call the roll.
The vote was taken, and the re-
sult was announced — ayes, 27; nays
21 — as follows:
AYES.
Boyd,
Hascall,
Campbell,
Hinman
Curtis,
Lev,
Eaton,
McCann
ELIGIBILITY FOR STATE OFFICE
147
Friday]
BALLARD-STEVENSON— HASCALL
[July 28
Mason,
Manderson,
Maxwell,
Moore,
Newsom,
Price,
Robinson,
Shaff,
Sprague,
Stevenson.
Stewart,
Thummel,
Thomas,
Towle,
Vifquain,
Wakeley,
Weaver,
Wilson,
Woolworth,-
-27.
NAYS.
Abbott, Lake,
Ballard, Lyon,
Cassell, Majors, •
Estabrook, Myers,
Gibbs, Neligh,
Granger, Parchin,
Gray, Philpott,
Griggs, Reynolds,
Kenaston, Scofleld,
Kilburn, Tisdel, — 21.
Kirkpatrick,
ABSENT OR NOT VOTING.
Grenell, Speice,
Parker, Mr. President, — 4.
So the proposition was adopted.
Mr. BALLARD.. Mr. President. I
wish to offer this amendment.
"The treasurer and all other state
officers shall be ineligible to hold of-
fice after they shall have served a
lifetime in such office."
I offer this for the reason that I
want to get on the record.
Mr. STEVENSON. I move that
that twelve inches square of the rec-
ord be devoted to the gentleman from
Washington (Mr. Ballard.)
The PRESIDENT. This is all out
of order. The question is on the
adoption of the section.
The section was adopted.
The secretary read the next sec-
tion as follows:
Sec. 4. The returns of every
election for the above named officers
shall be sealed up and transmitted,
"by the returning officers, to the sec-
retary of state, directed to "The
Speaker of the house of Represen-
tatives, who shall, immediately after
the organization of the house, and
before proceeding to other business,
open and publish the same in the
presence of a majority of each house
of the legislature, who shall, for
that purpose, assemble in the hall of
of the house of representatives. The
person having the highest number
of votes for either of said offices shall
be declared duly elected; but if two
or more have an equal, and the high-
est, number of votes, the legislature
shall, by joint ballot, choose one of
said persons for said office. Contest-
ed elections for all of said offices
shall be determined by both houses
of the legislature, by joint ballot, in
such manner as may be prescribed
by law.
The section was adopted.
The secretary read the next section
as follows: •
Sec. 5. No person shall be eligible
to the office of governor or lieutenant
governor who shall not have attained
the age of twenty-five years, and
been for two years next preceding
his election, a citizen of the United
States and of this state. Neither the
governor, lieutenant governor,
auditor of public accounts, secretary
of state, superintendent of public in-
struction nor attorney general shall
be eligible to any other office during
the period for which he shall have
been elected.
Mr. HASCALL. I move to amend
by inserting "Commissioner of Pub-
lic Lands and Buildings," after the
word "general."
The motion was agreed to.
Mr. MOORE. Mr. President. I
move to strike out the word "twenty-
five" in second line and insert "thir-
ty."
The motion was not agreed to.
148
ELIGIBILITY FOR STATE OFFICE
Friday]
PRICE— WOOLWORTH— ROBINSON
[July 28
Mr. PRICE. Mr. President. It
seems to me the last part of this sec-
tion should be amended, I think it
should bo stricken out.
Mr. WOOLWORTH. Mr. Presi-
dent. I wish to say a few words with
regard to these amendments, and al-
so with regard to the general busi-
ness of making amendments to the
report. We have spent an hour on
the second section. All these mat-
ters were gone over in committee of
the whole and finally the article was
brought to perfection. Of course it
is perfectly right and perfectly pro-
per that matters of principle, matters
involving the question, for instance,
that came up on the first section,
whether the state election should be
brought around so as to come at the
same ^ime as a presidential election*
a very important matter. Of course
it is perfectly proper to propose these
other amendments, what I wish to
say is, these liberal amendments pro-
posed will end just as the second sec-
tion ended, by coming back substan-
tially where we were before. I
merely throw out these suggestions
for the purpose of saving Jime. I
am opposed to the amendment of the
gentleman from Jefferson (Mr.
Price). If a man is elected to a
state office, if he will take all the
pains he will have to take in
order to get elected to a state office, go
to his convention, get nominated, go
through all the expense and trouble
of an election before the people,
and then, after putting the people,
and his party friends to all that ex-
pense and trouble concludes not to
qualify. I think he has shown by that
course of conduct he Is Just the sort
of man who ought to be debarred
from holding public office for that
period of years. I do not propose in
this convention to follow through all
the amendments that may be proposed
one by one, and show their desir-
ability or whether they are not de-
sirable. So far as I thought it pro-
per I did follow these amendments
through, when I thought they ought
to be made I said so; when I thought
they ougiit not to be made I said so.
Mr. ROBINSON. I offer the fol-
lowing substitute for section five:
"Any elector shall be eligible to
any office provided for by this con-
stitution, but neither of the officers
named in this article shall be eligible
to any other office during the period
for which he shall have been
elected."
I move its adoption.
Mr. KIRKPATRICK. Mr. Presi-
dent. There is certainly no conflict
in the substitute offered by the gen-
tleman and anything which has been
adopted by this convention.
Mr. HASCALL. Mr. President. I
see we have not passed upon this
section of eligibility, that having
been adopted in the committee of the
whole and not by the convention. I
withdraw my objection.
The substitute was lost.
Mr. PRICE. I withdraw my
amendment.
The section, as amended, was adop-
ted.
The secretary read the next section
as follows:
Sec. 6. The supreme executive
power shall be vested in the gover-
nor, who shall take care that the laws
be faithfully executed.
POWERS OF GOVERNOR
149
Friday]
ROBINSON— HASCALL
[July 28
The sixth section was adopted.
The secretary read the next section
as follows:
Sec. 7. The governor shall, at
the commencement of each session,
and at the close of his term of office,
give to the legislature information,
l)y message, of the condition of the
state, and shall recommend such
measures as he shall deem expedient.
He shall account to the legislature,
and aecompany his message with a
statement of all monies received
and paid out by him from any funds
subject to his order, with vouchers,
and at the commencement of each
regular session, present estimates of
the amount of money required to be
raised by taxation for all purposes.
Mr. ROBINSON. There was an
amendment made in the second line
of this section in the committee of
the whole, adding the words "and
whenever the legislature may re-
quire."
The seventh section was adopted
as amended.
The secretary read the next section
as follows:
Sec. 8. The governor may, on ex-
traordinary occasions, convene the
legislature by proclamation, stating
therein the purposes for which they
are convened; and the legislature
shall enter upon no business except
that for which thej" were called to-
gether.
The eighth section was adopted.
The secretary read the next section
as follows:
Sec. 9 In case of a disagreement
between the two houses with respect
to the time of adjournment, the gov-
ernor may. on the same being certi-
fied to him by the house first moving
the adjournment, adjourn the legis-
lature to such time as he thinks pro-
per, not beyond the first day of the
next regular session.
Mr. HASCALL. I move to add "but
no general session of the legislature
shall be so adjourned by the governor
until twenty days after the com-
mencement."
The yeas and nays were demand-
ed.
The secretary called the roll, and
the president announced the result,
yeas, 9; nays, 38, — as follows:
YEAS.
Estabrook,
Lyon,
Hascall,
Myers,
Hinman,
Neligh,
Kenaston,
Price, — 9.
Kirkpatrick,
NAYS.
Ballard,
Newsom,
Boyd,
Parchin,
Campbell,
Philpott,
Cassell,
Reynolds,
Curtis,
Robinson,
Eaton,
Scofield,
Gibbs,
Shaff,
Granger,
Sprague,
Gray,
Stevenson,
Griggs,
Stewart,
Kilburn,
Thummel,
Lake,
Thomas,
Ley,
Tisdel,
McCann,
Towle,
Majors,
Vifquain,
Mason,
Wakeley,
Manderson,
Weaver,
Maxwell,
Wilson,
Moore,
Wool worth
-38.
ABSENT AND NOT VOTING.
Abbott, Parker,
Grenell, Speice,
So the amendment was not agreed
to.
Mr. WAKELEY. I move an
amendment to strike out the words:
"The house first moving the adjourn-
ment," and insert "either house."
I do not remember that this matter
was considered in the committee of
150
POWERS OF GOVERNOR
FYidsy]
WAKELEY-HASCALL
[July 28
the whole maturely. It does not oc-
cur to me that there is any good
reason for requiring this certificate
to come from the house first adjourn-
ing. It appears to me right that
either house have the 'right to call
the attention of the governor to it;
and call upon him to adjourn the
house. It seems to me of some 'con-
sequence.
Mr. HASCALL. This power is
broad enough, and the gentleman's
proposition will make it worse. I
shall oppose it.
The amendment was lost.
The ninth section was adopted.
The secretary read the next section
as follows:
Sec. 10. The governor shall nomi-
nate and by and v/ith the advice and
consent of the senate, (a majority of
all the senators elected concurring,
by yeas and nays) appoint all offi-
cers whose ofiices are established by
this constitution, or which may be
created by law, and whose appoint-
ment or election is not otherwise pro-
vided for; and no such officer shall
be appointed or elected by the legis-
lature.
The tenth section was adopted.
The secretary read the next section
as follows:
Sec. 11. In case of a vacancy, dur-
ing the recess of the senate, in any
office which is not elective, the gov-
ernor shall make a temporary ap-
pointment until the next meeting of
the senate, when he shall nominate
some person to fill such office; and
any person so nominated who is con-
firmed by the senate (a majority of
all the senators elected concurring,
by yeas and nays) shall hold his of-
fice during the remainder of the
ti^rni. and until his successor shall be
appointed and qualified. No person,
after being rejected by the senate.
shall be again nominated for the
same office at the same session, un-
less at the request of the senate, or
be appointed to the same office dur-
ing the recess of the legislature.
The eleventh section was adopted.
The secretary read the next section
as follows:
Sec. 12. The governor shall have
power to remove any ofilcer whom he
may appoint, in case of incompe-
tency, neglect of dutyi, or malfeasance
in office; and he may declare his of-
fice vacant, and fill the same as here-
in provided in other cases of vacancy.
The twelfth section was adopted.
The secretary read the next section
as follows:
Sec. 13. The governor shall have
the power to guant reprieves, commu-
tations and pardons after conviction,
for all offences except treason and im-
peachment, upon such conditions and
with restrictions and limitations, as
he may think proper, subject to such
regulations as may be provided by
law. relative to the manner of ap-
plying for pardons. Upon conviction
for treason, he shall have power to
suspend the execution of the sen-
tence, until the case shall be report-
ed to the legislature at its next
meeting, when the legislature may
either pardon or commute the sen-
tence, direct the execution of the
sentence, or grant a further reprieve.
He shall annually communicate to
the legislature each case of reprieve,
commutation or pardon granted, stat-
ing the name of the convict, the
crime of which he was convicted, the
sentence and its date, and the date
of the reprieve, commutation or par-
don. In cases of conviction, upon
impeachment, the legislature may re-
mit so much of the sentence as shall
disqualify the convicted person from
holding office.
ed.
The thirteenth section was adopt-
GO VERNOR—LIEUT.-GO PERNOR
151
Friday]
July 28
The secretary read the next section
as follows:
Sec. 14. The governor shall be
the commander-in-chief of the mili-
tary and naval forces of the state
(except when they shall be called in-
to the service of the United States)
and may call out the same to execute
the laws, suppress insurrection, and
repel invasion.
The fourteenth section was adopt-
ed.
The secretary read the next section
as follows:
Sec. 15. The executive ofTicers
named in this article, and the judges
of the supreme and district
courts shall be liable to impeachment
for any misdemeanor in office.
The fifteenth section was adopted.
The secretary read the next section
as follows:
Sec. 16. Every bill passed by the
general assembly shall, before it be-
comes a law, be presented to the gov-
ernor. If he appi'ove, he shall sign
it, and thereupon it shall become a
law; but if he do not approve, he
shall return it, with his objections,
to the house in which it shall have
originated, which house shall enter
the objections at large upon its jour-
nal, and proceed to re-consider the
bill. If, then, two-thirds of the mem-
bers elected agree to pass the same,
it shall be sent, together with the
objections, to the other house, by
which it shall likewise be re-consid-
ered: and if approved by two-thirds
of the members elected to that house,
it shall become a law notwithstand-
ing the objections of the governor.
But in all such cases, the vote of each
house shall be determined by yeas
and nays, to be entered on the jour-
nal. Any bill which shall not be re-
turned by the governor within five
days (Sunday excepted) after it shall
have been presented to him, shall be-
come a law in like manner as if he
had signed it, unless the legislature
shall by their adjournment, prevent
its return; in which case it shall be
filed, with objections, in the office of
the secretary of state, within five
days after such adjournment, or be-
come a law.
Section sixteen was adopted.
The secretary read the next section
as follows:
Sec. 17. In case of the deathv
conviction or impeachment to the
senate and notice thereof to the ac-
cused, failure to qualify, resignation,
absence from the state, or other dis-
ability of the governor, the powers,
duties and emoluments of the office
for the residue of the term, or until
the disability shall be removed, shall
devolve upon the lieutenant-gover-
nor.
Section seventeen was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 18. The lieutenant-governor
shall be president of the senate, and
shall vote only when the senate is
equally divided. The senate shall
choose a president pro tempore, to
preside in case of the absence or im-
peachment of the lieutenant gover-
nor, or when he shall hold the office
of governor.
Section eighteen was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 19. If there be no lieuten-
ant-governor, or if the lieutenant-
governor, shall for any of the caus-
es specified in Sec. 17 of this article,
become incapable of performing
the duties of the office the presi-
dent of the senate shall act
as governor until the vacancy is
filled, or the disability removed; and
if the president of the senate, for any
of the above named causes, shall be-
come incapable of performing the du-
ties of governor, the same shall de-
volve upon the speaker of the house
of representatives.
I
152
DUTIES OF STATE OFFICERS
Friday]
WOOL WORTH— KIRKPATRICK
[July 28
Section nineteen was adopted.
Mr. WOOLWORTH. Mr. Presi-
dent. In pursuance of the report of
the special committee, which was
adopted this morning, I move to in-
sert a section at this point to be num-
ber 20.
The secretary read the section, as
follows:
Sec. 20. The commissioner of pub-
lic lands and buildings, the secretary
of state, treasurer and the attorney
general, shall form a board which
shall have general supervision and
control of all the buildings, grounds,
and lands of the state; the states
prison, asylum and all other institu-
tions thereof, except those for educa-
tional purposes, and shall perform
such duties and be subject to such
rules and regulations as may be pre-
scribed by law.
Mr. KIRKPATRICK. Mr. Presi-
dent. I would like to ask if there
is no provision for pay for these of-
ficers? If not, I think it would be
well to insert it.
Mr. WOOLWORTH. Nol, sir, it is
not necessary to do so. The salaries
of the state officers are provided in
the constitution.
The PRESIDENT. The question is
upon the adoption of the proposition
of the gentleman from Douglas (Mr.
Wool worth.)
The section was adopted.
The secretary read the next section
as follows:
Sec. 21. If the office of auditor
of public accounts, treasurer, secre-
tary of state, attorney general or
superintendent of public instruction
shnll be vacated by death, resignation
or otherwise, it shall be the duty of
the governor to fill the same by ap-
pointment, and the appointee shall
hold his office until his successor shall
be elected and qualified in such man-
ner as may be prescribed by law.
An account shall be kept by the of-
ficers of the executive department,
and of all the public institutions of
the state, of all moneys received or
disbursed by them, severally, from
all sources, and for every service per-
formed, and a semi-annual report
thereof be made to the governor, un-
der oath; and any officer who makes
a false report shall be guilty of per-
jury, and punished accordingly.
Mr. WOOLWORTH. Mr. Presi-
,dent. I move to amend by inserting,
after the words "attorney general,"
the words "commissioner of public
buildings."
The amendment was agreed to.
The PRESIDENT. The question
is upon the adoption of the section
as amended.
Section twenty-one was adopted.
The secretary read the next section
as follows:
Sec. 2 2. The officers of the exe-
cutive department, and of all the pub-
lic institutions of the state, shall at
least 10 days preceding each regular
session of the legislature, severally
report to the governor, who shall
transmit such reports to the legisla-
ture, together with the reports of the
judges of the supreme court of de-
fects in the constitution and laws;
and the governor or either house of
the legislature may at any time re-
quire information, in writing, under
oath, from the officers of the execu-
tive department, and all officers and
managers of state institutions, upon
any subject relating to the condition,
management and expenses of their
respective offices.
The twenty-second section was
adopted.
The secretary read the next section
as follows:
SALARIES OF STATE OFFICERS
153
Friday^
WEAVER-HASCALL
[July 28
Sec. 2 3. There shall be a seal of
state, which shall be called the
"Great seal of the state of Nebras-
ka," which shall be kept by the sec-
retary of state, and used by him,
ofRcially, as directed by law.
Section twenty-three was adopted.
The secretary read the next section
-as follows:
Sec. 24. The officers named in this
section shall receive for their services
a salary, and they shall not, after
the expiration of the terms of those
in office at the adoption of this con-
stitution, receive to their own use
any fees, costs, perquisites of office
or other compensation. And all fees
that may hereafter be payable by
law for any service performed by any
officer provided for in this article of
the constitution, shall be paid in ad-
vance into the state treasury.
The salary of the governor shall be
$4,000. The salary of the secretary
of state, of the auditor of public ac-
counts and of superintendent of pub-
lic instruction shall each be $2,000.
The salary of treasurer and at-
torney general shall each be $2,500.
The lieutenant-governor shall receive
twice the compensation of a senator
Provided, that at the expiration of
five years from the adoption of the
constitution and every five years
thereafter, the legislature may, by
general law, re-adjust the said sala-
ries, but the salaries of the officers
named in this section shall not be in-
creased or diminished during their
official terms.
Mr. WEAVER. Mr. President. I
move to strike out the words "4,000"
and insert "3,000."
Mr. HASCALL. I move to strike
out "4,000" and insert "3,500."
The PRESIDENT. The question
is upon the motion to strike out
"4,000" and insert "3,500."
The PRESIDENT. The question
is upon the motion to strike out
"4,000."
The ayes and nays being demanded
the secretary proceeded to call the
roll.
The President announced the re-
sult — ayes, 36; nays, 13 — as fol-
lows:
Ballard,
Campbell,
Curtis,
Eaton.
Gibbs,
Gray,
Griggs,
Hascall.
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Maxwell,
Moore,
AYES.
Myers,
Neligh,
Newsom,
Parchin,
Philpott,
Price,
Reynolds.
Robinson,
Shaffi,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Towle,
Wakeley,
Weaver, — 36.
NAYS.
Manderson,
Scofleld.
Vifquain,
Wilson.
Woolworth,
Mr. President — 13.
Abbott,
Boyd,
Cassell,
Estabrook,
Granger,
Hinman,
Mason,
ABSENT AND NOT VOTING.
Grenell. Speice.
Parker,
'So the motion to strike out was
agreed to.
Adjournment.
Mr. WILSON. Mr. President. I
move to adjourn now.
Mr. HASCALL. Mr. President,
call for a division of the question.
I The convention , divided and the
' motion to adjourn was not agreed to.
154
SALARY OF (40VERNOR
Friday]
PHILPO TT-KILBURN
[July 28
Salaries.
Mr. PHILPOTT. Mr. President. I
move to amend by striking out
"$3,500" and inserting "$3,000."
The PRESIDENT. The question
will be on the largest sum first.
Gentlemen, the question is on insert-
ing $3,500.
The ayes and nays are demanded
— secretary call the roll.
The vote was taken and the result
was announced — ayes, 23; nays, 2 4
— as follows.
AYES.
.A.bbott, Mason,
Ballard, Manderson,
Boyd, Moore,
Curtis, Robinson,
Gibbs,' Scofield,
Granger, Thummel,
Grigg's, ' Tisdel,
Hascall, Towle,
Hinman, Vifquain,
MoCann, Wilson,
Majors, Woolworth, — 23,
NAYS.
Neligh,
Campbell,
Cassell ,
Eaton.
Estabrook,
Gray,
Kenaston,
Kilburn,
Kirkpatrick,
Lake,
Lyon,
Maxwell,
Myers,
Parchin,
Philpott,
Price,
Reynolds,
Shaff,
Sprague,
Stevenson,
Stewart,
Thomas,
Wakeley,
Weaver,- — 24.
ABSENT AND NOT VOTING.
Grenell,
Newsom,
Parker,
Speice,
Mr. President. — 5.
So the amendment was not agreed
to.
The PRESIDENT,
on inserting $3,000.
The ayes and nays are demanded'
— secretary, call the roll.
The vote was taken and the result
was announced — ayes, 24; nays, 23
— as follows:
AYES.
The question is
Ballard,
Curtis,
Gibbs,
Griggs,
Hascall,
Lake,
Lyon,
Majors,
MoorG*
Myers
Parchin,
Philpott,
Abbott,
Boyd,
Campbell,
Cassell,
Eaton.
Estabrook,
Granger,
Gray,
Hinman,
Kenaston,
Kirkpatrick,
Ley,
Mr
Reynolds,
Robinson,
Shaft,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Tisdel,
Wakeley,
Weaver,
, President,-
-24.
NAYS.
McCann,
Mason,
Manderson,
Maxwell,
Neligh,
Price,
Scofield,
Towle,
Vifquain,
Wilson,
Woolworth^ — 23.
AND NOT VOTING.
Parker,
Speice, — 5.
ABSENT
Grenell.
Kilburn,
Newsom,
Mr. KILBURN. Mr. President
desire to vote on this question.
The PRESIDENT,
the room?
Were you in-.
Mr. KILBURN. No, sir.
The PRESIDENT. You cannot
vote unless by unanimous consent.
(I object.)
Adjournment Again.
Mr. LEY. I move we adjourn.
SALARIES OF STATE OFFICERS
155
Friday]
BOYD— MAJORS— McC ANN
[Juiy 28
The motion was agreed to. So the
convention (at twelve o'clock and
thirty-five minutes) adjourned.
Afternoon Session.
The convention met at two o'clock
and was called to order by the presi-
dent.
The PRESIDENT. The question
occurs, gentlemen, upon the adoption
of section twenty four.
Mr. BOYD. Mr. President. I
have an amendment I wish to offer,
in reference to fixing the salary of
the commissioner of public lands and
buildings. Insert after the word
"senator," in the tenth line, as fol-
lows: "The salary of the commis-
sioner of public lands and buildings
shall be $2,500."
Mr. ROBINSON. I would suggest
it would be well to insert that along
with the auditor, treasurer, and at-
torney general, so as to avoid repe-
tition.
Mr. BOYD. I accept the amend-
ment.
Mr. MAXWELL. I wish to make
a motion before we pass further — to
strike out "$3,000" and insert
"$2,500" for the salary of governor.
The PRESIDENT. I am clearly of
opinion that the proper way to
do that would be to reconsider.
Mr. ROBINSON. There is a mo-
tion pending before the house.
Mr. MAJORS. I move to amend
the motion and say that "the salaries
of the secretary of state, auditor
and superintendent of public instruc-
tion, shall each be $2,500."
Mr. McCANN. How are those of
us who are in favor of low salaries to
get at that? This convention, I take
it, sir, has unmistakably expressed
an opinion today in favor of low
salaries. They have, as plainly as can
be expressed, said that the salary of
governor of the state of Nebraska,
shall be $3,000, and, from the na-
ture of the motion made by the gen-
tleman from Cass, a few moments
since, I take it there is a disposition
to reduce the governor's salary. Now,
would it not be well, Mr. Chairman,
for the purpose of saving time, ta
reduce all these salaries in a batch?
If the salary of the secretary of state,
auditor and treasurer be $2',500, the
governor's salary should be more
than that; and I hope the amend-
ment of my friend from Nemaha
(Mr. Majors) will not prevail. I
propose, at the proper time, to make
a motion to reduce all these salaries
to a sum far less than recommend-
ed in the section.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Nemaha (Mr. Majors.)
The yeas and nays were demanded.
Mr. BOYD. Mr. President. Before
the vote is taken I wish to say that
my amendment does not change the
salary of any officer. It only pro-
vides for a salary for the commission-
er of public lands. Mr. Majors'^
amendment proposes to increase the
salary of the secretary of state, au-
ditor, and superintendent of public
instruction.
Mr. MAJORS. My object, Mr.
President, is to make the salaries of
the secretary of state, auditor, and
superintendent of public instruction
equal where there is no more labor
156
SALARIES OF STATE OFFICERS
Friday]
MAXWELL— MAJORS
[July 28
attached. I believe in paying a uni-
form price for the same amount of
labor. I hope gentlemen will look
upon this question from a business
point of view, and give it that con-
sideration it merits at their hands.
Mr. MAXWELL. I trust we will
■make some distinction. The attorney
general is not prevented from prac-
ticing in the courts, and the position
of attorney general is often a good
recommendation to the man occupy-
ing the position, if he is industrious
■enough to endeavor to work up a
practice. I am in favor of paying
respectable salaries, but I want it
fixed now. The legislatures have a
tendency to give larger salaries.
Now, this, in a new state, where the
people are only just commencing,
many settlers having come in lately
— within the last six months. Half
of the people in this state are living
in temporary habitations, mud
houses, and log huts, and have all
they can do to get along. It is pro-
posed to pay salaries which already
amount to $100,000, for state of-
ficers. In addition to that expense
there is that of the penitentiary, the
insane asylum, and other expenses,
that would swell up to an aggregate
of $160,000, or a little over three
mills on the dollar. Now who could
be prevented from accepting these
positions if we pay rea&oiiabla sala-
ries? I do not think any one will re-
fuse the positions. If money was the
entire object, many of the members
of this convention would not attend
here today. Many of our number
here can earn from $20 to $2 5 per
day. I have never known a legislator
to refuse to serve because of the low
salary given. There is a provision
already adopted providing for the
increase of salaries; and if the peo-
ple see these salaries are too low
they can increase them. If you get
the salaries up too high you cannot
get them down. We are coming to
specie payment fast, and the living
in the next ten years will, in all pro-
bability, be much lower than for the
past ten years.
Now, why should we at this time,
when money is so exceedingly close
that many business men are hard
pressed to meet their engagements
give such high salaries? I am opposed
to the proposition.
Mr. MAJORS. Mr. President. We
fixed the salary of the attorney gene-
ral the other day. I am not seeking
to advance that salary at all, but as
the salary of the treasurer and attor-
ney general is set down here for
$2,500 each. I cannot see why other
officers, whose duties are as much, if
not more, should not receive as much.
I was going to remark, Mr. President
that the gentleman from Cass (Mr.
Maxwell), in his extreme love for
economy and low salaries, has refer-
red to gentlemen on this floor serv-
ing the state as members of this con-
vention, at a much lower remunera-
tion per day, than they could make
at home. I think there is no analogy
between the two cases. We are now
about to establish the salaries of men
who are going to enter upon duties
for the state. It seems to me that
when - we give them salaries we
should give them such as they are
justly entitled to. It is generally
considered that a man has the oppor-
tunity of sitting as a member of
SALARIES OF STATE OFFICERS
157
Friday]
MCCANN— MAJORS— C A SSRLL
[July 38
a constitutional convention, perhaps
only once in a life time, and the hon-
ors conferred are to be taken into
consideration, somewhat; but we are
now fixing the salaries of men who
are to support their families upon
their pay. I desire that they should
have a competence to live upon, and
if it requires $2,500 a year to support
himself and family here, I don't
think we should require our officers
to come here and work for less. I
think that $2,500 is not too high.
Mr. McCANN. Mr. President, i
would like to ask the gentleman from
Nemaha, (Mr. Majors), for whose
opinion I have great respect, one
question.
Mr. MAJORS. Go on, sir.
Mr. McCANN. I believe the gen-
tleman (Mr. Majors) voted this
corning to reduce the salary of the
governor to $3,000, did you not?
Mr. MAJORS. I voted to strike
out $4,000. Then I voted for $3,500,
then for $3000. I voted for the high-
est figure each time.
Mr. McCANN. My question is this.
If the governor is required to move
his family here; support the position
of governor; entertain not only his
friends, but the friends of the state
also, and can live upon $3,000, can-
not the other state officers, of whom
these things are not expected — who
have none of the public duties which
we require of our governor — live up-
on less than $3,000? I think that
should be taken into consideration.
Mr. CASSELL. Mr. President.
While I agree with the gentleman
from Nemaha (Mr. Majors) that it
requires more to live upon here, than
in any other place, perhaps, in the
state, still I say that the position
which the officer holds should be
taken into consideration. It is re-
quired that the governor should
spend $3,000 or $4,000 per year in
order to accommodate those who
come here as guests of the state, hut
I do not think it is necessary that the
other officers should have such a
salary. Now the superintendent of
public instruction is, or should be, a
professional teacher, and this should
be taken into consideration when
you fix his salary. I don't think
there is a teacher in this state who
receives over $1,200 or $1,500 to-
day, and if he comes here at a salary
of $2,000 he does much better than
he is now doing. It is generally con-
sidered, I think, that the duties of
the position, are not so hard as those
i t)f a teacher in some public institu-
tion. While I have been in favor of
as high salaries, or perhaps higher
than any other gentleman upon this
floor, I may say I am not in favor of
a high salary here. I doubt if
there are half a dozen attorneys on
this floor whose net proceeds are
more than$2000 per year, and the
leading lawyers of the state are here.
I think there are few lawyers whose
net proceeds amount to More than
$2000 or $2500 per annum. Now if
this be the case, taking into consid-
eration the fact that the governor's
salary has been reduced so low, I
think that we should not pay these
ofPicers so much. I am decidedly op-
posed to paying these officers $2,500
each.
Mr. ROBINSON. Mr. President.
Like the gentleman from Nemaha
158
SALARIES OF STATE OFFICERS
Friday ]
ROBINSON-KIRKPATRICK
[July 28
(Mr. Majors) I voted to strike out
the "$4,000" and voted for "$3,500"
and when I found we could not get
that, I voted for "$3,000." Now I
think that $3,000 under the present
circumstances, is a very good salary,
it is a fair salary, at least. In the
committee, these salaries were voted
in rotation. Some of the members of
the committee fixed the salaries of
the state officers generally, at $2,000,
hut when they came to the treasurer,
thought we ought to fix his salary at
32,500, although there was no very
good reason given for this discrep-
ancy. I think that $2,500 for these
officers and $3,000 for the governor
is a very fair figure.
Mr. KIRKPATRICK. Mr. Presi-
dent. The gentleman from Lancas-
ter (Mr.. Robinson) said there was
no very good reason given by the
committee why there was a discrep-
ancy between the salary of the treas-
urer, and that of the other officers.
I believe, sir, that the auditoi-
should receive the same pay as the
treasurer, and therefore, I think that
the treasurer ought not to receive a
larger compensation than the audi-
tor, but, sir, I am opposed to increas-
ing the salary of any of these officers
but in favor of reducing them down
to $2,000. I do think, sir, there
ought to be a distinction made be-
tween the office requiring mere cleri-
cal work from that of the executive,
or judicial.
The PRESIDENT. The question
is on the amendment of the gentle-
man from Nemaha (Mr. Majors).
The ayes and nays are demanded
— secretary call the roll.
The vote was taken and the result
announced — ayes, 11, nays, 35 — as
follows.
AYES.
Manderson,
Moore,
Robinson,
Tisdel.
Towle, — 11.
NAYS.
Neligh.
Parchin,
Philpott,
Price,
Reynolds,
Scofield,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Thomas,
Vifquain,
Wakeley,
Weaver,
Vv^ilson,
Wool worth, -
Campbell,
Eaton,
Estabrook,
Granger,
Lake,
Majors,
Abbott.
Ballard,
Boyd,
Cassell,
Curtis,
Gibbs,
Gray,
Griggs,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Ley,
Lyon,
McCann,
Maxwell, Woolworth,^ — 35.
Myers,
ABSENT AND NOT VOTING.
Grenell. Parker,
Mason, Speicej
Newsom, Mr. President, — 6.
Mr. PHILPOTT. Mr. President. I
have an amendment I wish to offer
now.
The secretary read the amendment
as follows:
The salaries of the secretary of
state, of the auditor of public ac-
counts, of superintendent of public
instruction, of treasurer, commis-
sioner of lands and public buildings
and attorney general shall be $2,000.
The lieutenant-governor shall receive
twice the compensation of a senator.
Mr. PHILPOTT. Mr. President. My
object is to reduce some of the sala-
ries. I have a great desire for my
OATH OF OFFICE
159
J'ridaj-]
STEVENSON— PHIL POTT
[July 28
part that this constitution should be
carried by the people, and inasmuch
as we are about to provide that these
salaries may be raised by the legisla-
ture, I do think we should fix the
amount to pay.
Mr. STEVENSOX. Mr. President.
I have been in favor of the salaries
just as the committee reported them,
and I am now in favor of them. 1
am not in favor of reducing the sal-
ary of the attorney general below
what the committee reported it, $2,-
000.
Mr. PHILPOTT. I will amend,
with the consent of the convention,
so as to make the salary of the at-
torney general at $2,000.
Mr. BOYD. Mr. President. I move
the previous question.
The PRESIDENT. Ten gentleman
up — Gentlemen, the question is
shall the main question be now put?
The motion was agreed to.
The PRESIDENT. The question is
on the amendment offered by the gen-
tleman from Lancaster (Mr. Phil-
pott.).
The ayes and nays are demanded
-^secretary call the roll.
The vote was taken and the result
was announced, ayes, 35; nays, 11 —
as follows:
AYES.
Kilburn,
Boyd,
Cassell,
Curtis,
Eaton.
Estabrook,
Ciiblis.
Cirigss,
Hascail,
Hiumai!,
ivenasLon,
Kirkpatrick,
Lake,
Ley,
Lyon,
McCann,
Majors,
Maxwell,
Moore,
Myers,
Thomas,
Tisdel
Towle,
Wakeley,
Weaver,
Wilson,
Woohvorth — 35
NAYS.
Robinson,
Scofield,
Stewart,
Thummel,
Vifquain, — 11.
Neligh,
Parchin,
Philpott,
Price,
Revnolds,
Shaff,
Sprague.
Stevenson,
Abbott,
Ballard,
Campbell.
Granger,
Gray,
Manderson,
ABSENT AND NOT VOTING.
Grenell, Parker,
Mason, Speice,
Newsom, Mr. President. — G.
So the amendment was agreed to.
Mr. BOYD. Mr. President. I
withdraw my amendment.
Mr. MAXWELL. Mr. President. I
move the adoption of the section as
amended.
The motion was agreed to.
The President read the next sec-
tion, as follows:
Definition and Oath of Office.
Sec. 25. An office is a public po-
sition created by the constitution or
law. continuing during the pleasure
of the appointing power, or for a
fixed time, with a successor elected
or appointed. An employment is an
agency, for a temporary purpose,
which ceases when that purpose is
accomplished.
Section twenty-five was adopted.
The president read the next sec-
tion as follows:
Sec. 2G. All civil officers except
members of the legislature and such
inferior officers as may be by law
exempted shall before they enter on
the duties of their respective offices
take and subscribe the following oath
or affirmation.
IGO
OFFICIAL OATH AND BOND
Friday]
GRIGGS -ROBINSON
[July 28
I do solemnly swear (or affirm as
the case may be) that I will support
the constitution of the United States
and I he stp.te of Nebraska, and that
I will faithfully and impartially dis-
charge the duties of the office of —
according to the best of my
ability and th:\t I have not directly
or indirectly paid or contributed
anything or made any promise in
the nature of a bribe to directly or
indirectly influence any vote at the
election at which I was chosen to fill
said office and have not accepted nor
will I accept nor receive directly or
indirectly any money or other valu-
able thing from any corporation or
person for any official act.
Any officer refusing to take the
oath herein proscribed shall forfeit
his office and after conviction of hav-
ing sworn falsely to or violating his
oath shall forfeit his said office and
shall be disqualified from holding
any office of trust or profit in the
state.
No other oath, declaration or test
shall be required as a qualification.
Mr. GRIGGS. Mr. President. I
move to strike out after the word
"ability" in the oath down to the
word "no" in the ninth line of the
section.
The ayes and nays were demand-
ed.
The secretary called the roll and
the president announced the result;
yeas, 12; nays, 32, as follows:
Abbott,
Estabrook,
Gibbs,
Griggs,
Lake,
Myers,
Ballard,
Boyd,
Campbell,
Cassell,
Curtis,
AYES.
Neligh,
Reynolds,
Stevenson,
Stewart,
'^hummel,
Wakeley, — 12.
NAYS.
Eaton,
Granger,
Gray,
Hascall,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
Ley,
Lyon,
McCann,
Majors.
Manderson,
Maxwell,
Moore,
Philpott,
Robinson,
Scofield,
Shaff,
Sprague,
Thomas,
Tisdel,
Towle ,
Vifquain,
Weaver,
Wilson,
Woolworth-
-32.
ABSENT AND NOT VOTING.
Grenell. Parker,
Mason, Price,
Newsom, Speice,
Parchin, Mr. President, — 8.
The PRESIDENT. The ques-
tion is upon the adoption of the sec-
tion.
Section twenty-six was adopted.
The President read the next sec-
tion, as follows:
Bonds.
Sec. 27. The officers mentioned
in this article shall give bond in
double the amount of money which
may come into their hands, with
such provisions as to sureties, and
the approval thereof, and for the in-
crease of the penalty of such bonds',
as may be prescribed by law.
Section twenty-seven was adopted.
Mr. ROBINSON. Mr. President. I
move to amend section one, filling
the blank by inserting "the first
Tuesday in September."
Mr. HASCALL. Mr. President. I
offer an amendment to tte proposi-
tion just offered by the gentleman
from Lancaster. I move to insert
"the Tuesday succeeding the first
Monday in November next."
Mr. ROBINSON. I will accept
that amendment.
Mr. WAKELEY. I have no idea
what the amendment applies to. I
CKEATION OF NEW STATE OFFICES
161
Friday]
VVOOI.WORTH-HINMAN
[July 28
do not see anything i^ the printed
article to whicti it can apply.
The PRESIDENT. It applies to
the day of the year on which the elec-
tion should be held. This merely
fills a blank.
The amendment was agreed to.
Mr. WOOLWORTH. Mr. Presi-
dent. I wish to move an amendment
to the article, section twenty-eight —
"No other state offices shall be cre-
ated." I do not think I will say that
this is necessary. I think when the
first section of the article says that
the executive department of the
state shall consist of certain officers
it excludes altogether the power on
the part of the legislature or any
other department of the government,
to create any other executive offices.
But I present the amendment be-
cause our present constitution con-
tains a similar provision to our first
section, and notwithstanding that a
number of state executive offices
have been created, and to prevent
the mischief under which we have
suffered heretofore, I move that
this section be incorporated into the
article as section twenty-eight, and I
ask the ayes and nays on that mo-
tion.
Mr. ROBINSON. I move to strike
out the word "offices," and insert
"office."
Mr. WOOLWORTH. I accept the
amendment.
Mr. STEWART. I move that the
article be ordered engrossed for a
third reading.
Mr. MAXWELL. Mr. President. I
move the bill be now engrossed for
a third time.
II
The motion was agreed to.
Judiciary Article.
Mr. HINMAN. Mr. President. I
move that we now proceed to the
consideration of the judiciary arti-
cle.
The motion was agreed to.
The secretary read the next sec-
tion, as follows:
Sec. 1. The judicial powers of
this state shall be vested in one su-
preme court, district courts, county
courts, justices of the peace, police
magistrates, and in such other courts
inferior to the district courts as may
be created by law for cities and in-
corporated towns.
The first section was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 2. The supreme court shall
consist of three judges, a majority
of whom shall be necessary fo form a
quorum, or pronounce a decision. It
shall have original jurisdiction in
cases relating to the revenue, man-
damus, quo warranto and habeas cor-
pus, and such appellate jurisdiction
as may be provided by law.
The PRESIDENT. Gentlemen of
the convention, the gentleman from
Otoe (Mr. McCann) will take the
chair for a minute or two.
Mr. ROBINSON. Mr. President. I
move to amend section two.
Mr. WAKELEY. Mr. President. I
wish to offer an amendment to this
section.
1 The secretary read the amendment
fas follows:
"Insert after the word "revenue"
the words "cases in which the state
shall be a party."
Mr. LAKE. Mr. President. I am
opposed to the amendment. The con-
162
JURISDICTION OF SUFREME COURT
Friday]
LAKE-WAKELEY
[July 28
stitution of Wisconsin, which con-
tains a provision that the state may-
be sued, and that the legislature may
provide in what courts it may be
sued, contains a restrictive clause in
its judiciary article, which ours does
not. I will read:
"The supreme court, except incases
otherwise provided in this constitu-
tion, shall have appellate jurisdiction
only, which shall be coextensive with
the state; but in no case removed to
the supreme court, shall a trial by
jury be allowed. The supreme court
shall have a general superintendence
control over all inferior courts; it
shall have power to issue writs of
habeas corpus, mandamus, injunc-
tions quo warranto, certiorari, and
other original and remedial writs,
and to hear and determine the same."
Now this clause, Mr. President, is
quite restrictive in its provisions; but
I take it, the whole constitution must
be taken together and if there is any
section or clause which controls that
case or its signification, it ought to
be .taken into consideration. Then,
again, we find in the same constitu-
tion, the following:
"The legislature shall direct by
law in what manner and in what
courts suits may be brought against
the state."
That gives general authority to
the legislature. Now we have pro-
vided in our article, as it came from
the hands of the committee of the
whole that the legislature shall di-
rect, by law, in what manner suits
shall be brought against the state,
and we have a law conferring that
authority upon the supreme court, as
provided for in this section. It
seems to me it is filling up our article
with useless words. In our section,
we find that the legislature is left
with full authority to determine whai
court shall have full jurisdiction
where the state may be made to ap-
pear. Take this section with the
section which was adopted in com-
mittee of the whole, which saj-s that
the legislature shall provide in what
■courts the state may be sued, and it
is complete.
Mr. WAKELEY. Mr. President. I
agree with my colleague that the
whole constitution must be consid-
ered together, and that we allow the
state legislature to provide that the
state may be sued in the supreme
court, but I hope he does not wish it
to be taken as his opinion as a lawyer
that the legislature will have pow-
er to confer any jurisdiction upon
the stipreme court which is not cov-
ered by some express provision of the
constitution.
Mr. LAKE. I meant to say this to
be my opinion; that, taking the sec-
tion now under consideration, and
the one which came from the commit-
tee of the whole providing that the
legislature may declare in what
cotirts the state may become a party,
it is giving the legislature power to
declare which court shall have juris-
diction in these cases.
Mr. WAKELEY. Mr. President.
With the opinion of my colleague, as
now expressed, I entirely concur; but
I rise to say that in putting this lan-
guage in the constitution, we are but
following the language of the United
States constitution, which reads:
"In all cases, affecting ambassa-
dors, other public ministers, and con-
suls, and those in which a state shall
be a party, the stipreme court shall
have original jtirisdiction."
ELECTION OF SUPREME COURT
163
Friday
ROBINSON- WOOL WORTH-THOMAS
[July 38
It seems to me that there is no
impropriety in inserting the provis-
ion in this section, and that in adopt-
ing here the language of the United
State constitution, we are not load-
ing down our own constitution. If
We mean that the state shall be
sued in the supreme court , it does
no harm to say so here.
Mr. ROBINSON. Mr. President. I
think it is not to be disputed that
unless we confer upon the supreme
court originally the jurisdiction in
these cases it does not have it. Now
the only question is whether in the
provision of the legislative article we
confer upon the legislature the pow-
er to make this: "The legislature
may say in what courts these cases
'may be brought." Now. sir, I fear
that will be construed with reference
only to the second section.
The PRESIDENT PRO TEM. The
question is on the amendment of the
gentleman from Lancaster (Mr. Rob-
inson) .
The convention divided and the
amendment was agreed to.
The PRESIDENT PRO TEM. The
question is on the adoption of the
section as amended.
The section was adopted.
The secretary read the next sec-
tion, as follows:
Sec. 3. At least two terms of the
supreme court shall be held in each
year, at the seat of government.
The PRESIDENT PRO TEM. The
question Is on the adoption of the
section as read.
The third section was adopted.
The secretary read the next sec-
tion as follows:
Sec. 4. The judges of the supreme
court shall be elected by the electors
of the state at large, and their term
of office shall be for six years, except
at the first election, as hereinafter
provided.
Mr. PHILPOTT. Mr. President. I
have an amendment for that section
to send up.
Mr. WOOLWORTH. Mr. Presi-
dent. While the gentleman is pre-
paring his amendment I would like
to ask the chairman of the judiciary
committee (Mr. Lake) if he thinks
the language of this section is suffi-
ciently full? It reads, "their term
of office shall be six years, except at
the first election, as hereinafter pro-
vided." What does the word "ex-
cept" refer to?
Mr. LAKE. To the term of office.
It is the language used in the Ohio
constitution, I believe.
Mr. THOMAS. I will state Mr.
President, that that portion of the
Bection is not from the Ohio constitu-
tion. The intention of the commit-
:tee was that those elected at the first
election should not hold their office
for six years.
Mr. MANDERSON. Here it is
Mr. President as in the Ohio consti-
tution.
Sec. 11. The judges of the su-
preme court shall, immediately after
the first election under this constitu-
tion be classified by lot: so that one
shall hold for the term of one year,
one for two years, one for three
years, one for four years, and one for
five years: and at all subsequent elec-
tions the term of each of said judges
shall be for five years.
Mr. PHILPOTT. Mr. President. If
the gentlemen will allow me I have
my amendment prepared. It is to go
164
SUPREME COURT DISTRICTS
Friday]
WOOLWORTH-GRIGGS-TOWLE
[July 28
in as a section of the article as a
substitute for section four which I
move to strike out.
The secretary read the substitute,
as follows:
The legislature shall divide the
state into three districts from which
there shall be elected one member
of the supreme court, except at the
first election thereof when they shall
be elected by the electors of the
state at large; and their terms of of-
fice shall be six years, except at the
first election their terms of office
shall be as hereinafter provided.
The PRESIDENT pro. tem. The
question is on the substitute just
read.
The substitute was not adopted.
Mr. WOOLWORTH. Mr. Presi-
dent. I propose an amendment; be-
tween the words "office" and "shall"
to insert the following words "ex-
cept of those chosen at the first elec-
tion as hereinafter provided," and
to strike out the words "except at the
first election, as hereinafter provid-
ed," so that it will read "the judges
of the supreme court shall be elected
by the electors of the state at large,
and their term of office, except of
those chosen at the first election, as
hereinafter provided; shall be six
years."
The PRESIDENT pro. tem. The
question is on the amendment offer-
ed by the gentleman from Douglas
( Mr. Woolworth ) .
The convention divided and the
amendment was agreed to.
The PRESIDENT pro. tem. The
question is on the adoption of sec-
tion four as amended.
Mr. GRIGGS'. Mr. President. I
move to strike out all in the first
line to the word "and," and insert
the following:
"The state shall be divided into
three grand divisions to be denomi-
nated, southern, central and north-
ern, and one judge of the suprenxe
court shall be elected from each of
said districts"
Point of Order.
Mr. TOWLE. Mr. President. I
rise to a point of order. This is
the same amendment substantially"
offered by the gentleman from Lan-
caster (Mr. Philpott) which has
been voted down by the convention
and is not in order.
Mr. GRIGGS. Mr. President. I
do not believe they are the same.
I will read the proposition offered"
by the gentleman from Lancaster
and then the one offered by me.
"The legislature shall divide the
state into three districts from which
there shall be elected one member
each of the supreme court, except at
the first election thereto, when they
shall be elected by the electors of the
state at large, and their terms of
office shall be six years, except at the
first election their terms of office
shall be as hereinafter provided."
The amendment offered by me
reads. "The state shall be divided
into three grand divisions to be
denominated southern, central and
northern, and one judge of the su-
preme court shall be elected from
each of said districts."
Mr. GRIGGS. Mr. President. The
reason I make this motion at this
time is because I believe that in the
SUPREME COURT DISTRICTS
165
Friday]
MOORE— PHILPOTT
[July 2«
supreme court every part of the
state should be represented. I be-
lieve, if we divide the state into three
grand divisions as is the case in Illi-
nois, that we will have as good
judges as to elect them from the
state at large. I believe it will suit
the people of the state better. I be-
lieve the people of the southern
part of the state are entitled to be
represented in that supreme court.
It is true it is not a political oflBce,
l)ut if these three judges are elected
Irom the state at large there will be
rings formed in such a way that we
will not succeed in getting the best
men we have for those positions, and
I am satisfied that all parts of the
state will be better satisfied. I hope
the motion will prevail. I call for
the ayes and nays that the people
may know who are their friends and
who are not in this matter.
The secretary called the roll and
the President announced the result
yeas, 24; nays, 22, — as follows:
Ballard,
Curtis,
Gibbs,
Griggs,
Hinman,
Kenaston,
Kilburn,
Kirkpatrick,
McCann,
Moore,
Myers,
Philpott,
Abbott,
Boyd,
Campbell,
Cassell,
Eaton,
Estabrook,
Granger,
YEAS.
Price,
Reynolds,
Robinson,
Shaff,
Sprague,
Stevenson,
Stewart,
Thummel,
Tisdel,
Vifquain,
Weaver,
Wilson.-
NAYS.
Gray,
Hascall.
Lake,
Ley,
Lvon,
Majors,
Mason,
24.
Manderson, Thomas,
Neligh, Towle,
Parchin, Wakeley,
Scofield, Woolvvorth. — 22.
ABSENT OR NOT VOTING.
Grenell, Parker,
Maxwell, Speice,
Newsom. Mr. President.
Mr. MOORE. Mr. President. I
move a reconsideration of that vote.
I did not properly understand the
amendment made by the gentleman
from Gage (Mr. Griggs). When I
voted I thought I understood it but
did not, and upon further reflection
I am satisfied that the people of this
state should choose the men to repre-
sent them upon the supreme bench
from any part of the state where they
can find a man suitable for the pur-
pose. This thing of confining it to
sections or sectional lines there can
be no possible reason for. I do not
wish to ascribe any impure motives
to any gentleman present. I do not
believe they have any. I think the
best men of this state should be se-
lected, no matter where they may be
found. The questions that will come
before this supreme court are ques-
tions which affect the whole people
alike. There will not be any local
questions for decision in this court
affecting one part of the state more
than another, therefore I do not
wish any sectional boundaries to be
made. ' I wish us to select our judg-
es wherever we can find the best tal-
ent, and not confine them to sepa-
rate portions of the state and be
forced to take up men that we other-
wise would not choose.
Mr. PHILPOTT. I hope the mo-
tion will prevail for several reasons.
The people believe that while a man
166
SUPREME COURT DISTRICTS
Friday]
HASCALL-MYERS-MASON
[July 28
pretends to be honest and faithful in
the discharge of his duties, notwith-
standing tliat he may be influenced
by local consideration, by reason of
living in a certain section he may
be induced to act in the interest of
that section more than any other. A
human heart being pretty full, and
any man is liable to do this. The
executive, legislative and judicial
department. I want the judicial de-
partment to be so arranged that it
may be selected from different parts
of the state, not that all the judges
and governors should be elected
from one part of the state. I think
we should have fair and impartial
decisions, and if the judges were all
selected from one section influences
might be brought to bear on them
which would prevent a fair discharge
of their duties; and for that reason
I am in favor of the amendment.
Mr. HASCALL. We do not want
a local judge. We want a judge for
the whole state, and the judges
should be elected from different lo-
calities. The whole state is interest-
ed and ought to have a voice
Mr. MYERS. I rise to a point of
order. The motion pending is to re-
consider, and does the chair consider
that a debatable question?
The PRESIDENT (pro tern.) A
motion to re-consider is not debat-
able.
Mr. MASON. I trust the gentle-
man will have leave to proceed, or
sir, I do not believe
Mr. MYERS. I rise to a point of
order, with all due deference to the
honorable gentleman.
Mr. MASON. I want to see your
authority.
Mr. MYERS. It is in the rules.
Mr. MASON. Then I move that
the gentleman have permission to
proceed. I hate to see the provision
marred by such a monstrous thing
that the chief justice shall be compel-
led to live in the district from which
he is elected.' It is degrading to the
interests of the state to presume that
these sectional influences are to
permeate the minds of those who are
called upon to settle the great ques-
tions of property and right. Why,
sir, if the Marchalls of this state live
in Douglas county, I would take
them away from there, and the day
is not far distant, doubtless, when
they will be congregated around the
library at the Capitol, and is a state
to be deprived of their learning and
influence because they live at the
captial, or is the day coming when
we can forget, for a single moment,
the little county in which we live
and take in the whole state, and the
whole interests? It seems to me this
amendment was still born. I do be-
lieve, sir it is a most dangerous in-
novation that has been presented or
proposed to this judiciary article.
Consider, sir, for a single moment,
the object of this amendment to this
court of dernier resort. It is not
for local parties, or to represent any
certain interest, not as a representa-
tive body in anything, but as a mere
oracle of the law, to interpret that
which is made. Why, how unseemly
it is to compare this tribunal, which
represents every interest in the law
making department of the govern-
ment; to compare that tribunal
SUPREME COURT DISTRICTS
167
Friday]
MASON— HASC ALL— ROBINSON
[July 28
which alone declares what that is
which has been written, to that tri-
bunal which shall take note of every
local interest and every local commu-
nity in the whole state! There is a
reason for adopting a thing like
this in an old state, but, sir, even the
old states grew sick of this danger-
ous innovation. Look at New York,
with her eight supreme courts of
judicature at one time, and, sir, as
many conflicting decisions in the su-
preme courts as there were tribu-
nals; and it was with great difiicul-
ty that the law was ever settled;
and those eight tribunals all local
in their character. Now, sir, we
have but one supreme court. We lift
it over and above all locality and
prejudice, and all influences that can
intimidate or prejudice or bias; and
it is shut out from view. The idea
of the possibility of locality influ-
encing the decisions of a judge! I
would be false to myself, to my con-
victions of right; false, sir, to the
high duty I owe to this state; false,
sir, to the duty I owe to my children,
were I to stand here and see this
amendment prevail in silence. I
hope no such dangerous innovation
will prevail, and that the amendment
may be defeated.
Mr. HASCALL. Mr. President. I
believe I had the floor, and only took
my seat in obedience to the rule
which says that a member when out
of order must take his seat. The
rules entitled me to the floor.
The PRESIDENT (pro tem.) You
are right.
Mr. HASCALL. This rule would
prohibit judges, after they have
been elected, having a residence at
the capital, and then being eligible
for re-election, because this rule re-
quires them to live in their district
to be eligible and if they come to
live at the capital they would be
ineligible.
Mr. ROBINSON. I do not know
that I am in favor of the section as it
now stands. My own views are that
it should require judges to be elect-
ed by the electors of their several
districts, for I am certainly in favor
of dividing the state into three ju-
dicial districts, and to require the
judges to be brought from each
one of them. We are accused of
making dirty aspersions when we
presume that the supreme court
would consider local interests. But
I say they are guided by them, and
every man is actuated by the preju-
dices imbibed from his sectional dis-
trict. Now, I want to utilize this,
Perhaps the people, in nominating
their judges would in order to make
them available as candidates, bring
them from different portion of the
state. I believe if they are brought
from different portions of the state
they will not be actuated by these
prejudices. I do not believe they
are above their prejudices, even if
they wore the long robe and the
powdered locks of old, and notwith-
standing their dignity.
Mr. WAKELEY. Mr. President. I
can hardly think it is necessary that
any member of the convention should
add anything to the very forcible
considerations which have been pre-
sented by the distinguished gentle-
men from Otoe (Judge Mason.) I
felt some amusement when the vote
upon this proposition was announc-
168
SUPREME OOCTRT DISTRICTS
Friday]
WAKELEY
[July 2»
ed. I had supposed it was offered,
as propositions sometimes are, in or-
der that the mover and some who
believe with him, might have the
pmvilege of recording on the journal
of this body their opinions and sen-
timents in regard to important ques-
tions. But I do not, for a moment
believe that it would be the pro-
nounced sense of this constitutional
convention that the people, left to
their untrammeled judgment, their
unbiased choice in selecting the judg-
es who are to sit in the highest tri-
bunals of this state could not be
trusted to elect men who would go
upon the judgment seat unbiased,
uninfluenced by any consideration of
a local, of a partisan or a personal
nature. And, sir, if you cannot trust
the people of this state to select their
judges anywhere within the limits
of the state for fear they will prosti-
tute their positions to any personal,
partisan purpose, then, sir, for God's
sake strike out this provision in
your judicial article, abolish your
separate supreme court, which we
were sent here to establish and or-
ganize; go back to the system under
which we have lived* where you have
selected judges from three different
districts, and sir, when gentlemen
stand up on this floor and say that
men elected from particular locali-
tes in this state will be influenced
by this consideration, they do but
insult the judiciary of our state,
which for four years have come from
different portions of the state. Can
any gentleman stand up here and
say that our judges have, for one
moment, remembered the particular
section of the state in which he lived.
or in what county his wife and chil-
dren were sheltered, when en-
gaged in his ofl!icial duties? I
say, sir, it is an insult in advance to
all men who may occupy a position
upon that bench. Why, sir, the man
who takes his position upon the
bench, to administer justice and al-
low himself to be influenced by such
considerations and be prejudiced in
his decisions, that man should va-
cate his position and go home. Why,
sir, is this proposition made? You
say that because men live in particu-
lar localities their judgment may
be swayed by favoritism. Suppose
sir, that some question would arise
where the question of North and
South Platte may arise. Suppose the
legislature should say that all north
of the Platte river should consti-
tute one grand division and all south
of the Platte should constitute an-
other division. Would they not have
it in their power to prevent the peo-
ple selecting more than one judge
from that side of the river. But, sir,
the time when that unfortunate di-
vision shall trouble the people of
the state is fast passing away. I see
no reason for the proposition — I see
very great reason for opposing it sir,
when you elect men for long terms
of office, is there anything they can
do which will better fit them to per-
form the duties of their office than to
come here with their families, with
their household goods and settle
among the people residing here; here
where they can go into your state li-
brary, which, in a short time will be
a far better library than any private
library found in the state. Shall you
say that if one judge shall come here
SUPREME COURT DISTRICTS
169
Friday]
PHILPOTT-HASC ALL— GRIGGS
[ Ju'y 2^
to live and the other two do not?
Sir, I do think that when so anoma-
lous a proposition as this is broached,
a man should give some special reas-
on for supporting it. I suppose that
the people of this state are going to-
place upon the supreme bench of the
state, judges who will be honest
men and uninfluenced by local preju-
dices.
Mr. PHILPOTT. Mr President. I
can say this; that whatever I think,
I can say upon this floor, although I
don't wish to cast any reflections of
any kind upon the judges of this
state, yet I do say that judges can
fall; their acts have been impeached.
Judges are but human. It is well
known that, high though our pres-
ent judges may be in character,
learning and ability, they came neai
being impeached by our legislature.
I don't know, sir, whether the gen-
tlemen of our state were right or
wrong. I am decidedly in favor of
bringing the judges together from
different parts of the state, believing
that thereby we will be likely to
have a better administration of jus-
tice, than if they were brought from
the same 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 convert your
courts into petty legislatures for the
doing of the work that legitimately
belongs to the representatives of the
people? There are few special laws
on our statute books that I would
be willing to repeal, and if repealed
very great injury to our varied In-
terests would result. General laws
are the rule, special laws the excep-
tion; were there no exceptions neces-
sary in their scope and nature, there
would be no necessity for the rule.
We must unloose the bonds that may
fetter trade, manufactures, agricul-
ture, or aid them, often time by in-
dispensable special laws. There are
really few general laws in operation.
Your constitution contains them, and
is your legislature more perfect than
your organic law? This state became
a state by a special law. I do not
believe, Mr. Chairman, there is a
special law upon your books here
that has worked injuriously to the
whole people. If there is, I have fail-
ed to see it. There may be excep-
tions. But the general scope and
tenor of these laWs is to untie the
hands of the people. For this pur-
pose is the legislature convened at
any time. It is true there ought to
be general laws upon general sub-
jects. I agree to the principle as
applied to such subjects. When you
go further, you establish a tyranny of
restrictions, and when we become
hide-bound, selfish, bound hand and
foot by the fetters of wajit of power
to perform an especial duty, we fall
short of enjoying that ' freedom
ANNUAL OR BIENNIAL SESSIONS
335
Wednesday]
GRIGGS— MASON
[Autrust 2
which has ever been our happiness
and boast. Therefore it is that I am
in favor of such legislation as of
right belongs to the law-making pow-
er of a free state.
Mr. GRIGGS. I am in favor of
the section 
