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NOTE: You may notice textual errors throughout this document, many of which have been left intact from the original text. Should you want to investigate the integrity of the original report, please refer to the original two printed volumes containing the official report of the proceedings and debates.

Adams
Allen
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christianson
Clark
Coray
Corfman
Crane
Creer
Cunningham
Cushing
Driver
Eichnor
Eldredge
Emery
Engberg
Evans, Weber
Evans, Utah
Farr
Francis
Gibbs
Goodwin
Green
Hammond
Hart
Haynes
Halliday
Heybourne
Hill

Prayer was offered by Elder M. B. Shipp, of the Church of Jesus Christ of Latter-day Saints.

The journal of the twenty-second day's session was read and approved.

Mr. Preston was excused by request.

Mr. Maeser presented a petition, signed by fifty citizens of the fourth ward of Provo, praying for an article on prohibition to be inserted in the Constitution.

Referred to the committee on schedule, future amendments and miscellaneous,

Mr. Partridge presented a petition, signed by John Styler and forty-five other citizens of Provo, asking that an article on prohibition be submitted to the people for a separate vote.

Referred to the committee on schedule, future amendments and miscellaneous.

Mr. EICHNOR. Mr. President, I move that we resolve ourselves into committee of the whole for the consideration of the preamble and declaration of rights.

The motion was agreed to.

The Convention then resolved itself into committee of the whole, with Mr. Thurman in the chair.

COMMITTEE OF THE WHOLE.
                            

The CHAIRMAN. I think there was no substitute offered to section 24, there was an amendment proposed to section 23.

Mr. SQUIRES. I understood Mr. Varian to move to strike out the section. Mr. Van Horne moved to amend that by substituting that which he had offered as an amendment to section 23.

Mr. VARIAN. Mr. Chairman, I submit {346} the question before the committee is the motion to strike out. I apprehend if that is carried, it wouldn't preclude the offering of another matter.

The CHAIRMAN. If you raise that point of order the chair will sustain it.

Mr. Hart moved to amend the section so that it would read as follows:

Private property shall not be taken for private use unless by consent of the owner, except for reservoirs, drains, flumes or ditches, on or across the lands of others, for agriculture, mining, or milling purposes, and in no case shall such property be taken without due compensation.

Mr. PARTRIDGE. Mr. Chairman, I have a substitute, which I wish to present to this section:

Private property shall not be taken for private uses, except for uses, which in their nature may be considered of a public benefit, and in no case shall private property be taken without due compensation shall first have been made.

The CHAIRMAN. I think it is in order to offer the substitute, it may be equivalent in meaning, but the language is different, and it goes to the question of phraseology.

Mr. PARTRIDGE. We had considerable discussion here yesterday in regard to taking property for public uses without just compensation being first made, and I was in favor that it should not be done. Neither am I in favor that private property should be taken for private uses without just compensation having first been made. I concede that it would work a great injury to individuals; I do not wish to go over the ground that was gone over yesterday, gentlemen, upon a similar subject, but I can conceive of instances where it would work a great injury if the right were not conceded to take private property in some way, in some manner, and in case where it might be

construed as a public benefit, although not literally or legally a public use. In case of water ditches, that are calculated to benefit perhaps a good many acres of land, it would result in a public good. At the same time I want to guard the private interests of individuals that they should not be robbed of their property without having compensation first made to them, without their having to await a long process of a law suit, which they are not able, perhaps, to carry on; that is the position I take on it.

Mr. ANDERSON. Mr. Chairman, I would object to the amendment of Mr. Hart for this reason, I think the public would want to use property for other purposes than that mentioned in this connection. Now, suppose the public would want to use property for roads or streets, etc., or any other use, it seems to me that the way this section is now worded that the public would not obtain private property for those uses; therefore, for that reason, I would object to it.

Mr. EICHNOR. Mr. Chairman, I am in favor of the section as it stands, this is the law in the state of Wyoming. It is in the constitution in the state of Washington. Now, Wyoming and Washington have been states since 1889; these dire calamities of which our friend Varian spoke, of building outhouses and {347} chickencoops on the neighbors' premises have not occurred in those states. Those states are well governed. On the other hand, if you wish to change it, then I would be in favor of changing it according to Idaho and Montana. Idaho and Montana declare certain uses as public uses. The bill of rights of Idaho reads:

The necessary use of lands for the construction of reservoirs, or storage basins for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes, or pipes to convey water to the place of use for any useful, beneficial, or necessary purpose, or for drainage, or for the drainage of mines or the working thereof by means of roads, railroads, tramways, gates, tunnels, shafts, hoisting works, dumps, and other necessary means to complete the development, or any other use necessary to complete the development of the material resources of the state, etc.

Mr. EICHNOR. The declaration of rights of Washington provides that private property shall not be taken for private use, except for private ways of necessity and for drainage, flumes, or ditches, on or across the lands of others for agriculture, domestic, or sanitary purposes.

Mr. VARIAN. What does Idaho say?

Mr. EICHNOR. I read Idaho. Wyoming provides that private property shall not be taken for private use, unless by consent of the owner, except for private ways of necessity, and then it goes on in the same language as section 24 here.

Mr. CREER. The present section is an exact copy of Wyoming.

Mr. EICHNOR. Yes, sir. Section 15 of the declaration of rights of the state of Montana provides that the use of all water appropriated now or that may hereafter be appropriated for sale, rental, distribution, or other beneficial use and the right of way over the land of others for all ditches, drains, flumes, canals and aqueducts necessarily used in connection therewith, as well as the sites

for reservoirs and necessary for collecting and storing the same, shall be a public use, and that private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road and the amount of damage to be sustained by the opening thereof shall be first determined by a jury, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefitted. Now, Mr. Chairman, there are two views, they all tend toward the same thing. One is to declare these uses a public use, the other is to embody right in the section a declaration that private property shall not be taken for private use, and then the section goes on and enumerates for what purposes it may be taken for private use. I am in favor of the section just the way it stands, and I think Wyoming and Washington have not been ruined. No one has been injured by having that section in the declaration of rights.

Mr. CREER. Mr. Chairman, there is one condition that has not been referred to, which I desire to draw attention of the committee to, that is why I am in favor of the section as it stands. That is, that private property may be taken for private roads. I find that New York has a provision that private roads may be opened in the manner prescribed by law, but in every case the necessity of the road and the amount of all damage to be sustained by opening thereof, shall be first determined by a jury of freeholders and such an amount named with the expenses of the proceedings shall be paid by the person to be benefitted.

Now, in the near future the probability is that a great many of the canyons will be taken up as private claims under the grants that have been provided by the government, and it will work a great hardship if the private roads could not be established or acquired {348} over that land. If it should necessitate the use of a county or public road, the people would be prohibited from going through these canyons to obtain timber or coal or such property as there is in the mountains, and I think it is absolutely necessary that the provision should remain as it is in this section or as provided by New York and other constitutions; that not only ditches_that are certainly absolutely necessary for drainage and for carrying water over the private lands of others_but for private roads; I would be in favor, however, of the motion of the gentleman from Cache_adopting what he has suggested simply by striking out “for sanitary or domestic purposes,” but for everything else I think the section covers, that should remain in there to conform to the necessities of the present, and of the near future. Therefore, I am in favor of the section as it stands. There can be no question as to the necessity for drainage. In the neighborhood where I come from the irrigation of the upper bench land which will increase materially from what it is at the present time_why, the lower lands are soaked with water and there must be some way of draining those lands. It will be absolutely necessary. Nearly one-sixth of our city has been made almost useless by the soakage from the upper lands, and therefore the necessity is obvious that we must have an opportunity of draining those lands and crossing private lands that may be adjoining. It seems to me, gentlemen, that there is no necessity for transforming this into a public use. It is a distinction, it seems to me that is not necessary. The precedent is established by New York. Allow me to read a little further: “General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof necessary drains, ditches, and dykes upon the lands of others.” They provide that general laws may be passed, therefore, I am in favor of it_ not having to depend upon authorities or precedent, but put it into the fundamental law that these rights may be preserved to the private citizen.

Supposing that the people of Salt Lake went down here to Utah County and raised the dam which is at the line between Salt Lake and Utah County, if this went into effect, they would have a perfect right to do that, and submerge to that extent the adjoining country. They could do it on the ground that they were doing it for a reservoir, and under this they would have a right to do it, and those people could only seek redress in the form of compensation. It is putting the liberties, it is putting the privileges and rights of one class of citizens at the mercy of another class in a private sense; a measure which we should strictly guard. I can see that where in the mining industry there can be a great many obstacles thrown in the way that would work injury unto legitimate enterprises, by persons that were designedly operating for the purpose of extorting money from those that were following a legitimate purpose. It is a very broad field to look over; it is not only the domestic, it is not only the agricultural, but it includes the mining, and it should draw out the thought of the agriculturist, and of the miner, and of the man that favors corporations, and in fact of every branch of industry that is characteristic of the country in which we live. I think that those words should be supplanted with the word “public,” not only in the second, but also in the third, and that it should be arranged so as to provide that this work could go on, when it is for public benefit. I shall favor the amendment that was offered by the gentleman from Cache.

Mr. CHIDESTER. Mr. Chairman, I am in favor of the section as it now stands. I do not believe that any law can be passed in this connection, which, if it was administered arbitrarily, would not

work a disadvantage to some one. Now, while my friend, who has just spoken, is situated as he says in his county, I can point out numerous cases in my own county that would work the opposite, and I believe that in the interests of the poor man the section as it now stands should be his interests. I believe that if I owned a quarter section of land, and my land, for instance, is on the main water ditch or canal, another man below me owns a small farm, we will say, and he is not able to pay for his right of way, right at once; now, I know a number of that kind of cases, and I also know of a similar company that has endeavored to make a road for the benefit of the public, and there was no fund, and the road was a necessity for the greater portion of the settlement, yet, under this as was proposed, they would be debarred from making that road_a road which they must all use, and they could not haul their products out of thier fields until it was made. They would have to wait and raise the means and pay for this before they could use the road. Now, while it worked to his interest the other way, I think that the general good_it would work to better satisfaction to have the section as it now stands.

Mr. VARIAN. I believe that we are playing at cross purposes perhaps. The only vital objection I make here, and those who are in accord with me, is in overlooking the distinction between a private and public use. We do not object if it be the sense of this people to {350} declare mining, milling, and agricultural purposes as public uses, if you want to put that into the Constitution. The objection is that this section declares it a private use, entirely obliterating the distinction between public uses and private uses. Now, let me illustrate that by the suggestion made by Mr. Creer, from Utah County. The very statement of a possible condition that he made indicates that the road there would be for the public benefit. It would be for the benefit of more than one person_a number of people. I doubt very much if the necessity should arise, even under the territorial laws, if a number of people in a community or perhaps a town, should use a canyon road for the purposes of getting out wood or any other purpose, or for the purpose of crossing the range and getting to their ranches, but what that would be a public use and the county or the Territory could open a road. No man could build a fence across it and say “I will defeat the object and purpose of the entire community.” But with this provision in, one single individual, if he wanted to cross the property, and if it were convenient for him to have it established under the constitutional enactment, could do so. So as to ditches, so as to water rights, so as to mining. A large company, owning and developing a large mine, might want to take in a claim of the miner along side of its property. It is clearly a private use that it would be advocating, and under such a section as this, it could do it. I do not see any reasons why one man's property should be any better protected than another.

You have, in your opening declaration of the declaration of rights said, “All men have equal, inherent, inalienable rights, among others to acquire, possess and protect property.” Of course that is subject to the good of the community. If it be necessary to take that property for public use, well and good; declare mining to be a public use, declare agriculture to be a public use, declare milling to be a public use, declare as the constitution of California has declared, all use of water now appropriated or that may hereafter be appropriated for sale, rental, distribution, is hereby declared to be a public use_not a private , use, that is the objectionable feature that we have to this. It is not that it proceeds to speak for agriculture, for mining, for milling, and for reservoirs, drains, flumes, and ditches, but it is because it permits private individuals to advance their interests as against the interests of their fellow-citizens. Now, I have no objection to the

amendment proposed by Mr. Hart, except, I do not think it ought to come in at this place. By implication if adopted it might confine the question of public use to those specifically mentioned in the amendment. What I apprehend is intended is that these particular uses, shall be declared to be public uses anyhow, leaving the subject open to the Legislature as to any other public use that may exist. It is not intended to confine the question to the particular limitations in the amendment as I understand it, is that right?

Mr. HART. Yes.

Mr. VARIAN. Therefore, if that be so, would not it be better to take the substance of the amendment offered by the gentleman from Cache and add it to section 23, which provides that private property shall not be taken or damaged for public use without just compensation first made? If you want another section, provide that private property may be taken for a public use in certain specified cases. Would it not by implication at least raise the question whether or not the Constitution did not forbid taking for any other public use? If you add to section 23 the substance of the amendment offered by the gentleman from Cache with the reservation that it shall not exclude any other public use, as public uses are understood now, at the same time, it would accomplish {351} the purpose intended. For that reason I should oppose the amendment to section 24, without some qualifying or supplemental clause, as I have indicated.

Mr. EICHNOR. Mr. Varian, would not the same result be obtained by declaring it a public use as a private use?

Mr. VARIAN. No.

Mr. EICHNOR. You spoke about a mining company taking a miner's claim; if you declare mining a public use, the company can do it, can't they, the same as if we declare it a private use?

Mr. VARIAN. Is that all?

Mr. EICHNOR. That is all.

Mr. VARIAN. I will explain the distinction that I made and it is well settled. A public use contemplates something for the good of more than one person or one company. If mining shall be declared to be a public use throughout this Territory, it would be because the general development of mines_the general business and occupation, the explorations and excavations for the precious and other metals, from the earth would be declared to be for the benefit of the whole community. So of agriculture, so of the distribution of water and the getting of it from one place through long distances to the point of application of it. All these would be declared by the fundamental law, to be public uses, and the applications of the fundamental law would be upon well settled principles, first by the Legislature, second under the supervision of the courts, guided by the Constitution so that the property of the citizen would receive all the protection that it is possible under governments made by man to afford it, but if you put in private use any individual can say, “I want the private use of necessity here; I want to take my neighbor's mine; I want to run my ditch across my neighbor's field; I want to use his property for my domestic and sanitary

purposes; or I want to use it for my mill, for my drain,” everyting of that kind; do you not see, Mr. Chairman, that we are departing from the broad fundamental principle which would underlie all fundamental governments and that of necessity we are putting a contradiction in this declaration of rights to the first declaration that every man had a right to secure and possess and protect property, equal with his fellows; starting and keeping in his mind all the time that the very foundation of this taking of property is a use of necessity? That necessity is founded upon the good of the entire community, or a great portion of it as distinguished from the good and benefit one man or one individual should receive, and in answer to the gentleman from Summit County, my friend, Mr. Eldredge, in which he said that Mr. Hart had accepted my amendment, I say that the only objection I have to the declaring of agriculture, mining, milling, and such matters as drains, flumes and ditches, public uses is to the place where it comes in; and that it ought to have an addition expressly stating that that is not the only public uses for which the private property may be taken. The chair will appreciate the force of the suggestion without question. If his declaration shall be modified and presented so that it will exclude the Legislature from passing other public uses, why I have no doubt that it will be acceptable. Certainly as far as I am concerned, I see no objection to it. The objection I make to it now is if it comes in just that way, it will be a qualification and modification of section 23 in a way that I don't believe the Convention will maintain.

Mr. EVANS (Weber.) Mr. Chairman, by the courtesy of a member of the committee on preamble and declaration of rights, I secured that part of which they at that time had agreed to report to the Convention. At that time I discovered this article or section we are {352} now considering and conceived a deep seated prejudice against it; but the committee, before the article was printed, modified it in such a way that after a careful consideration of every word and every line in it, I believe the committee has shown great wisdom in reporting that section as they now have it before this committee. I see absolutely no danger in it. It is established by precedent that such uses as are mentioned in the section are proper uses for the advancement of any country or section situated as we are in this. I want to call the committee's attention particularly to some points in the section and undertake in a brief way to dissipate if I may some of the arguments made against it. I would like the committee to understand in the first instance that under this section it is not true and cannot be true under any sort of reasonable construction that any individual can take at will or at his own caprice the property of another individual, should he covet it or desire to take it. There must be first an adjudication of the fact that that use is a necessary use and the court would first determine it. If the court considering a question of this kind, should conceive the idea or if the evidence should develop the fact that one individual through mere caprice or whim for the purpose of designedly injuring his neighbors, wanted one of these rights of way across his neighbor's land, he could not exercise the right at all. The court would simply say, “This right, under the Constitution of the State, guaranteed to the people, does not mean any such thing as that, but it only means when it is necessary, that he should have the right_for what_for agriculture, for mining, for milling, for domestic or sanitary purposes.”

Now, let us take for illustration one or two words in this section for the purpose of giving the committee an idea what it means. We will suppose that one individual has land so situated that cesspools should form upon it_water which becomes stagnant, and which required for the good of the community at large and for the good of the neighbors in the locality that it should be

drained from that land, and suppose it were impossible to drain it from that land without draining it across the land of his neighbor. Then, under this section, that right would be guaranteed. And if a court should find that it was necessary to drain off that land for sanitary purposes the court would give the right to that neighbor to cut a drain across the land of his neighbor, in order to conduce the sanitary conditions. The benefit is not to the individual alone, but incidentally it is a benefit to the public at large, and so it is with respect to mining. Ditches may be dug when necessary for mining or milling purposes along the land of another; and so it is for private rights of way. If it be necessary, mark you, the court would permit one person to have a private way across another's land. Why, gentlemen, this right is already granted, not constitutional, but in a court of equity. If a man's land is so situated that it is impossible to remove from it without going across the land of his neighbor, he can go into a, court of equity and the court will grant that right. But we desire here to make the Constitution so that these things will be easier of access than to have to apply to a court of equity every time some such right should be secured.

Now, my brother Varian states that he has no particular objection to these words, but if they can be declared to be public uses, then the principle which we a reconsidering would not be violated in the same measure that it would be by the passage of this section. I would ask any reasonable minded man to tell me the difference. Suppose we say that agriculture, mining, milling, domestic and sanitary things_

Mr. VARIAN. That is stricken out
{353}
Mr. EVANS (Weber)_are public uses, suppose we say that.

Mr. VARIAN. That is not under discussion.

Mr. EVANS (Weber). I did not know that that was stricken out.

Mr. VARIAN. Yes, in the amendment it is stricken out.

Mr. EVANS ( Weber). I am opposed to all amendments. I am for the section as it stands with some slight amendments, which we shall propose hereafter; I say if these things are declared to be public uses then under the right of eminent domain, they would be taken and we would reach exactly the same result as we reach by this section, because this section only permits these things to be taken for these uses. The section is carefully guarded. I congratulate the committee on preamble and declaration of rights for their wisdom in selecting this section and formulating it in the language which we find it before this committee today. But, gentlemen, there is another thing, we talk about the sacred rights of property and the vested rights of property. Of course they need guarding, they need to be held sacred; but, gentlemen, I would permit a policy to be adopted in this Territory, situated as we are in an arid region, where it is necessary to bring under cultivation and till out land, to dig ditches and build reservoirs, where it is necessary in order to develop the mining resources of this country, to build roads, and to have private ways for ditches; to say that this thing shall be done; it is not infringing upon the private right of the individual at all. We provide for an adequate compensation for the property which is taken and it is given to him and the public is incidentally benefitted. The country is developed by reason of the fact that

these rights may be exercised by the individual for these particular purposes. What is our country without irrigation? What is it without mines? What is it without agriculture? Have we a country fit for anything else? We must do those things which will develop the country and these particular resources. No man would knowingly raise his hand against any action of this Convention which would promote its progress. The only question is one of policy, not one as to what ought to be the legitimate result. But, gentlemen, Colorado, which the gentleman from Salt Lake has handed to me, and which he failed to cite, has provided substantially the same thing as is provided in this section, only in different language. We find all this arid region around us providing for the same thing. We find in a recent constitutional enactment in 1894 in New York, where this very subject was taken up and where these rights were given after two hundred years of experience, not as broadly as we take it up here, because the conditions did not require it, but for drainage purposes, for the digging of ditches, and for private ways, these rights were given to the private individuals to take the property for particular purposes. Gentlemen, have not many of you seen farmers, sometimes, or some men who were not farmers, or some men who were in the mountains prospecting, acting like dogs in a manger? We do not want any dogs in the manger policy in our new State. If a man happens to be so situated upon an elevated piece of ground that a canal can be built that will develop the country, are we to say that that particular piece of ground shall not be taken? I say that it should not be if we did not provide an adequate consideration, but when we do provide it, and when it becomes absolutely necessary in order to develop this country, why not do it? How many of you, my fellow committeemen, who are farmers, have been annoyed with securing a private way to or across your lands; how many of you have seen either in that respect or in the digging of ditches, some man having a mean, penurious disposition, squatting down upon a piece {354} of land and preventing the development of the land, because these rights could not be secured? Is not it frequently the case and people of this Convention know it to be? But, gentlemen, I would say this, before we take private property for private use, even for the purposes named in this section, we ought to say that compensation shall be first made, because in the question of taking private property for private use, there is no urgent necessity for immediate possession; and I say, too, that it ought to be amended, if we reach that point, so that private property shall not be taken or damaged, because it would not be right for a large reservoir to be built upon an individual's land, the seepage from which might destroy a great deal of ground around it, without receiving compensation for such damages. With these two amendments which I expect to propose if this substitute is not voted out, I shall stand by the committee on preamble and declaration of rights.

Mr. HART. Mr. Chairman, it seems to me that section 24, as it is printed, is too broad. I particularly object to the words, “domestic or sanitary.” I think in particular that those words should be stricken out. The gentleman from Salt Lake, Mr. Eichnor, suggested that this section is from Wyoming, and that Wyoming thus far has experienced no inconvenience from this proposition. That argument to my mind has absolutely no weight for the reason that Wyoming is so situated, so sparsely settled that a question of that kind under those words would, in the nature of things, not arise this early after the adoption of the constitution. Now, in regard to the words, “private use or public use.” I admit that there is very great weight to the argument made by the gentleman from Salt Lake, Mr. Varian, when you consider this section in connection with 23. I adopt the suggestion of the gentleman himself in thinking of the question simply by itself, but
in considering it in connection with section 23 I can see that it will possibly lead to the fault that

he suggested_that is, it would be construed that these were the only public uses for which private property could be taken. I have no objection, Mr. Chairman, to declaring that ways of necessity or rather ways for ditches, drains, flumes. etc., for agricultural purposes should be declared public uses. The idea of the Idaho proposition on that subject is a wise one. I have never seem any inconvenience arising under that proposition of the constitution as framed in Idaho, but of course, to meet that objection or to make that provision. It would probably be necessary to revise this whole section. Therefore, in view of the situation, in comparing the two sections, with the consent of the committee, I would withdraw the proposed amendment, changing from private to public. and permit it to stand as it now is, “private.” It has the same effect; I am not particular which way it goes, if we could construct this, making an absolute provision that ways for ditches, flumes, etc., for agriculture, mining, and milling purposes should be declared public uses; I favor it in that shape.

Mr. VARIAN. I would ask the gentleman not to withdraw his amendment. The committee by an addition of a word or two can obviate that objection, as growing out of the context of section 23, and say that you do not mean to exclude other public uses.

Mr. EVANS (Weber). May I ask the gentleman from Cache a question.

Mr. HART. Certainly.

Mr. EVANS (Weber). I understand you to say, you would strike out “for sanitary or domestic purposes?”

Mr. HART. Yes, sir.

Mr. EVANS (Weber). I suppose you desire sewerage into your property; that would be a sanitary purpose?

Mr. HART. That is already covered by your word “drains.” This is amply covered by the former part of {355} the proposition. When you come to insert the words, “domestic or sanitary purposes” in there you let down the bars and make such a broad foundation. You let in any conceivable abuse of the section.

Mr. EVANS (Weber). Don't you think drainage means drainage for lands through which the water percolates?

Mr. HART. It would be a drainage including sanitary.

Mr. EVANS (Weber). If you wanted fresh water to your house for domestic purposes, suppose you could not get it without running a pipe across your neighbor's land, that would not be a ditch, it would not do anybody any harm, it would simply give the right to put the pipe in the ground and cover it up, and then you could have your fresh water for domestic purposes. I think those two provisions are just as essential as any other.

Mr. HART. I was going to suggest, that the gentleman make his speech after I finish mine, not interject it in the shape of questions to my remarks. As I was about to say, I would be willing to provide that ditches, drains, etc., for agricultural purposes, should be declared a public use. I think it is an absolute necessity for our State, that there should be a right of way for ditches or drains, and also for milling and mining purposes, but the section as it stands, leaving the word “private” there, I think is sufficient, without reforming the whole section which I think we will probably have to do in order to declare these public uses, and for the present, without proposing a new section in line with the Idaho and some other states declaring these public uses, I would favor the matter standing as it is so far as the private use part is concerned. The section as it stands is too broad in my opinion, perhaps I have narrowed it too much by striking out the words, “way of necessity.”

Mr. ROBERTS. Would the gentleman permit a question?

Mr. HART. Yes, sir.

Mr. ROBERTS. Would your amendment then merely touch the words,
“domestic and sanitary purposes”_that is the only amendment you then offer?

Mr. HART. Well, I do offer an amendment to line three_“private ways of necessity;” in view of the suggestion of the gentleman from Utah County, Mr. Creer, I don't know but what it would be right to leave in there these private ways of necessity, but however, I am willing to leave the amendment to stand as it is and take a vote on it.

Mr. BUYS. Mr. Chairman, I am in favor of the section as it stands; I am opposed to striking out the words, “domestic or sanitary,” and perhaps the gentleman from Cache, having lived out in the country where we are obliged to have water for domestic purposes, understands it. And again he says, the words “drains” and “flumes” cover the question of sewers. I will call the attention of the gentleman to the fact that it says, “private ways of necessity for reservoirs, flumes, or ditches, etc.” Consequently, drains could not cover that unless it was mentioned. Sanitary and domestic purposes, I think it really necessary. There are many places where wells cannot be had out in the country, and they have got to have water for domestic purposes, and it is just as necessary as agricultural_if agricultural and milling purposes were declared to be public, I certainly think domestic pur poses {356} should be. It is just as necessary as any other, and I am certainly in favor of the section as it now stands, but I would like to see the word “damaged” in there as well as “taken,” because in many instances, property may be damaged as well as taken and I think that ought to be in. With that amendment I would like the section and will vote for the section as it stands.

Mr. RICHARDS. Mr. Chairman, I am opposed to all these amendments. I do not think that this

section is perfect by any means. I think that some amendments should be proposed, but I don't believe that any of the amendments that have been proposed ought to be adopted, because if they are adopted, in my estimation, they will destroy the force and efficacy of this section. Now, I see no danger in it: it is said here and has been reiterated on this floor time and time again that one individual ought to have the right to take the property of another individual. Well, now, we all admit that. That does not require any argument. Nobody is going to dispute that proposition_except in cases of necessity. Now, this presupposes that in every instance where private property is taken for private use, the matter will be brought before a tribunal which has jurisdiction, which will hear both sides of the controversy and which will determine whether or not there is any absolute necessity for this private way or private use, whatever it may be, and some of the uses that are entertained here are in their nature public, although they may not be strictly and legally public. Still, they are in their nature public. The court will determine in every instance as to the necessity for taking of this property or for the use of it for this purpose, and I say that there is sufficient safeguard; I would be in favor of requiring compensation to be first made in cases of this kind, because I think there is a difference between the taking of private property for private use and the taking of private property for public use. I say also that there is no danger in permitting the words, “domestic or sanitary purposes” to remain. In fact, if these words were stricken out, if the gentleman from Cache will examine the section carefully, he will see that by scratching out these words the section would be mutilated and would not mean even what he intends by his amendment. I am not in favor of striking out the words “private ways of necessity,” because circumstances may arise, circumstances have arisen, where it was absolutely necessary that private ways should be granted, and as I say, these matters coming before the court, the right of the parties will be protected. Now, we find these provisions in Washington, Wyoming, Montana and Colorado_our neighbors, but it is said they are young states. That there has been no opportunity to test the question of propriety, and therefore it is to be rejected. If the gentlemen will turn to the constitution of Missouri they will find the same provision there. Missouri has had ample time to determine the propriety and expediency of these matters. In New York we find the same, I am told. I don't remember as to that definitely, but I see no danger in this section. As I say, I am in favor of amending, but not such amendments as are proposed here now, because they would destroy the full force and effect and virtue of this section, in my estimation.

Mr. PARTRIDGE. Mr. Chairman. I desire to say a word or two more on this substitute that I introduced. I am willing to withdraw the substitute, but I wish to explain myself. There seems to be a disposition to strike out or materially amend section 24. In the previous section it provides all that it would provide for if the section were amended_to use the word “public” instead of “private” uses, and I think that by substituting that word that {357} said uses were in their nature public uses_which of course the court would decide, they could then be taken and that would not interfere with the rights of individuals or at least an individual could not take the property of another individual unless it was in the nature of a public benefit. I am willing to withdraw that proposition and leave the section as it is, if that is the mind of the house, providing that they will add at the end of the section after “compensation,” the words, “shall first have been made.”

Mr. THORESON. Will you allow me to ask you a question?

Mr. THORESON. If you withdraw your substitute to that section, will you allow me to introduce a substitute for the section, providing as follows:

The taking of private property for the use of building and maintaining all necessary reservoirs, canals, flumes and drains for agricultural, mining, milling, or domestic and sanitary purposes, is hereby declared to be a public use?

The CHAIRMAN. The question is on the substitute of Mr. Partridge.

The question being taken on the substitute offered by Mr. Partridge, the substitute was rejected.

The question being taken on amendment proposed by Mr. Hart, the amendment was rejected.

The question was then taken on the motion of Mr. Varian to strike out section 24.

The motion was lost.

Mr. EVANS (Weber). Mr. Chairman, I now move to insert at the end of the first line in section 24 the words, “or damaged,” and to add at the end of the section after the word, “compensation,” the words, “first made.”

Mr. CORAY. Mr. Chairman, I would like to make an amendment to that amendment, that the word “ditches” be stricken out, and the word “aqueduct” be substituted. That would cover the objection of some gentlemen of putting pipes in the land.

Mr. RICHARDS. I submit that motion would not be in order.

The CHAIRMAN. There is no second to it.

Mr. NEBEKER. Mr. Chairman, it seems to me that there may be some objection to that section in this_that the damage could not be ascertained before the improvement is made and it might stand in the road of an improvement being made.

Mr. GIBBS. Mr. Chairman, I am in favor of the amendment of Mr. Evans, the first amendment, but I am certainly not in favor of the second amendment to it at the end of the section, “first made.” After the gentlemen have voted on the first proposition, “or damaged” I would like to vote for it, but as it is I cannot vote for it.

Mr. FARR. Mr. Chairman, those are my sentiments exactly.

A division of the question being called for, the question was taken on the motion to amend by inserting the words, “or damaged” and the amendment was agreed to.

Mr. EVANS ( Weber). That is the way I wrote it, but the other provision as to public property says, “first made” and it was to make it harmonious that I changed it. I will accept the suggestion of Mr. Hart.

The amendment was agreed to.

Mr. HOWARD. Mr. Chairman, I would like to offer an amendment to section 24, to add after the word “others” in line 5, the words, “and then only when no other reasonable way is obtainable.”

Mr. RICHARDS. Mr. Chairman, 'I move to insert after the word “flumes,” {358} the words, “sewers, conduits, pipes,” so that it will read, “except for private ways of necessity, and for reservoirs, drains, flumes, conduits, pipes, or ditches.” Now, the object in making that amendment is this, it seems to me that if it is proper to take property for a private use for a drain, it would be for a sewer, or a sewer might or might not be a drain, also if it is proper to take private property for a ditch it would be proper to take private property for a conduit or pipe to convey the water under the surface. The ditch implies that the water should be conveyed on the surface and in order to make the right complete, so that the water may be conveyed either upon the surface or below, I think those two words, “conduit and pipe” should be inserted and in order to make it complete as to sewerage_carrying off sewage for sanitary purposes, I think the word “sewers” should be inserted. I therefore move as an amendment, that the word, “sewers, conduits, pipes,” be inserted.

The amendment was agreed to.

Mr. HART. Mr. Chairman, I move to insert the word, “necessary” after the word “for” and before the word “reservoir” in the third line. It would then qualify everything that follows and provide in accordance with the arguments of the gentleman from Weber that these rights were to be taken only where necessary. It would limit somewhat this particular provision.

Seconded.

Mr. EVANS (Weber). Mr. Chairman, that, of course, is implied in the section. I have no objection whatever, however, to its going in.

Mr. RICHARDS. I think that too, but I think it will do no harm to make It more explicit.

Mr. EVANS (Weber). It will do no harm and I favor that going in that respect.

Mr. ROBERTS. Does that strike out “for private ways of necessity?”

Mr. HART. No, sir; it doesn't strike out anything; it simply adds the one word “necessary.”

Mr. HART. No, “for private ways of necessity and for necessary drains,” etc.

Mr. VAN HORNE. Mr. Chairman, I move to amend by adding after the word “necessary” the words “dumps, tunnels, millsites and.” The object of that I take it, is that almost everything is provided for here as a right to take private property; my own opinion would have been, that it was better to declare those uses that are desired under this right of eminent domain to be public uses, but we have provided now for agricultural, for the irrigation and so far as I can see have left wholly untouched the question of necessary mining, and I think that the amendment proposed would perhaps cover that; for that reason I am in favor of it.

Mr. FARR. Mr. Chairman, I prefer to have each amendment put separately. When there are three or four amendments, we get confused and we do not get anything done.

Mr. VAN HORNE. I will withdraw it until the word “necessary” is inserted.

The amendment was agreed to.

Mr. VAN HORNE. Mr. Chairman, I desire now to offer that amendment, after the word, “necessary,” in line four to insert “dump, mill and tunnel sites and,” before the word “reservoir.”

The amendment was rejected.

Section 25 was then read as follows:

Section 25. The right of every citizen to the fruits of his labor and his freedom to sell the same, shall not be abridged, and shall be protected.

Mr. Coray offered the following as a substitute for section 25:

“The rights of every citizen to the benefits and sales of his labor and the enjoyment of the fruits thereof, shall never be abridged.

me of the Welsh woman who said she was a Democrat because she believed in free trade and high tariff.

Mr. VARIAN. Some Democrats do.

Mr. PIERCE. Mr. Chairman, I am in favor of the motion to strike out the section. I think everything that is accomplished by the section is accomplished by section 1 of the article.

Mr. SQUIRES. Mr. Chairman, I do not understand that any motion has been made to strike out yet.

Mr. PIERCE. Well, then, I am opposed to the substitute. It says in subdivision 2 of section 1, all men have the inalienable right to enjoy and defend their lives, liberty and to acquire, possess, and protect property. It seems to me that sentence is all that is necessary.

Mr. FARR. Mr. Chairman, to obviate further discussion, I move to strike out section 25.

Mr. RALEIGH. I second the motion.

Mr. JAMES. I would like to inquire of the committee that adopted this section what their object was, and I will ask while on my feet if it was not to protect the farmer, when he came into the city, from a tax being put on by corporations that would keep him from peddling in the city.

Mr. RICKS. The section was introduced to meet a contingency that has arisen lately all over this country_

Mr. RALEIGH. If that is the object
of the section, I withdraw my motion_that is, if the question of Mr. James shall be answered in the affirmative, I shall withdraw my second to the motion.

Mr. RICKS. There is a tendency, Mr. Chairman, of organization of labor, when they make demands at certain times upon corporations to increase their salaries, and when those demands are not yielded to, to go on a strike. This clause is made to protect the men who are willing to work for the wages that are offered to them, and I think that is an inalienable right of every man to work for what he pleases and for whom he pleases, and he ought to be protected in that right.

Mr. PIERCE. Is not that declared?

Mr. RALEIGH. If that should be answered in the affirmative I still withdraw my second to the motion.

Mr. ROBERTS. Mr. Chairman, after listening to the remarks of the gentleman from Sevier I should still be opposed to the insertion of the section here, on the ground that the protection to be sought by workingmen who will be willing to work, if not prevented by those on a strike, would be proper matter for the Legislature to deal with, and since we have provided or declared the

right of men to be free, it would be for the Legislature to make such provisions as contemplated by the remarks of the gentleman from Sevier, and it is not at all necessary that they should find their way into the Constition [*note*].
{360}
Mr. CREER. Mr. Chairman, the object of the committee, as I understand it, in inserting the subject matter of this section, was that the laboring man should not be boycotted, that is that he should not be systematically proscribed. Gentlemen on this floor have told the members of the committee_in fact there were members of that committee who stated that the railroads have a systematic way of prohibiting a man that is following that occupation from selling his labor_that is, if he should give umbrage or offense to his employers_he cannot then get employment from any railroad line in the country. They have a systematic way of boycotting the laboring man in this respect, and it was insisted that something of this kind should be put in the bill of rights that he may be protected in the fruits of his labor and the right to sell his labor. That was the object, as I understand it, of putting it in there. I do not know the extent that this aggravation goes to, but that was indicated by members of the committee.

Mr. RICHARDS. I would like to ask the gentleman from Utah a question, that is how this section does or would protect that class of people in their labor, or in the fruits of their labor?

Mr. SMITH. Mr. Chairman, and gentlemen, I am opposed to the section and the substitute; it seems to me it is one of those things, if you put it in the Constitution, that is going to return to plague us. A man can run a little still or he can do anything in the world almost under that provision, and it seems to me that laws in the future would be passed under the Constitution that would give ample liberty to the citizen. This thing we don't know what it is. It is one of those uncertain things, and I am opposed to the whole proposition. And I am in favor of striking it out.

Mr. RYAN. Mr. Chairman, I would be very munch in favor of striking out that section if for no other reason than for the reason stated by the gentleman from Sevier. I don't think the Convention should enter into that subject and it should be left entirely to the Legislature for future provisions.

The question being taken on the motion to strike out, the motion was agreed to.

Section 26 was read as follows:

Section 26. The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.

The same was read as follows:

To guard against transgression of the high powers we have ,delegated to the government of the State of Utah by this Constitution, we declare that everything contained in the bill of rights is excepted out of the general powers of government and shall forever remain inviolate.

Mr. SMITH. Mr. Chairman. I move the section pass as it is.

Mr. EVANS (Weber). Mr. Chairman, I am in favor of Mr. Roberts' substitute for that section. The section as it now stands only has such significance as the law gives it anyway_that the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be other wise. {361} A bill of rights is always mandatory and it is always prohibitory, unless it is otherwise expressed. This section means nothing at all. It means nothing except such significance as the law gives without it. I am inclined also to think that the amendment offered by Mr. Roberts, is one which the bill of rights itself would guard by force without it. But it seems to me it would be better to have in there something of that nature, so that present and future generations in reading it will understand exactly what a bill of rights means, and that is all that it is.

It is simply a declaration of what the bill of rights is. Let your young child study this provision that the provisions of the bill of rights are mandatory or prohibitory, they would not understand anything at all about it. They would gather the idea that those rights were declared by the bill of rights and were the rights which the people undertook to secure and maintain inviolate. I like it very much better. It is used in so many constitutions, too, that I shall support the amendment.

Mr. EICHNOR. Let me ask the gentleman from Weber County a question, or perhaps I should put the question to Mr. Roberts. You do not mean to infer that the bill of rights could not be amended as any other part of the Constitution could be amended?

Mr. EVANS (Weber). Oh, no; certainly not.

Mr. ROBERTS. Certainly not.

Mr. WHITNEY. Mr. Chairman, I am willing to vote for the substitute, and defer to the wisdom of the gentleman who submitted it, provided that the argument is eliminated from it. I see no need of beginning this section with a declaration that it is in order to guard against the transgression of the high powers delegated or declared in this declaration.

Mr. ROBERTS. If he would permit me a further explanation, I would say that in the constitutions of the majority of the states, where such a declaration as that is made, it goes as the last section of the bill of rights.

Mr. WHITNEY. The point I wish to make is this, that it would be sufficient to declare that everything contained in the bill of rights is excepted out of the general powers of government and

shall forever remain inviolate.

Mr. RICHARDS. Mr. Chairman, if this substitute is to prevail, I am in favor of the amendment, if the gentleman from Salt Lake offers it as an amendment. I will ask him if he does?

Mr. WHITNEY. Yes; I will offer it as an amendment.

Mr. RICHARDS. I am in favor of it as an amendment, if the substitute prevails at all, but I am opposed to the substitute. I think this section should pass as it stands, and then if it is desired to add to this article the substitute proposed or the section proposed by the gentleman from Davis, as modified by the gentleman from Salt Lake, I shall vote for it, but it does not seem to me it takes the place of the language that is in this section and that ought to remain there.

The amendment of Mr. Whitney was rejected.

The substitute of Mr. Roberts was rejected.

Section 27 was read.

Mr. WHITNEY. Mr. Chairman, I move that the section be transposed to take the place of section 26. I think it is out of its order.

Mr. EVANS (Weber). That will be for the committee on compilation and arrangement.

Section 28 was read and passed with out amendment.

Section 29 was read as follows:

“Section 29. Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.

Mr. VAN HORNE.    Mr. Chairman, I move to strike out section 29.

Motion seconded.

Mr. WHITNEY. Mr. Chairman, I shall oppose the striking out of the section. This is not the first section in this document which declares a fundamental principle without guaranteeing it. We declare that all men have the inalienable right to enjoy and defend their lives and liberty. We suppose that the Legislature shall provide how they will be secured to them. The declaration of a general principle does not hurt anything. I think it ought to stand as it is.

Mr. RICHARDS. Mr. Chairman, I hope this motion will not prevail to strike this out. Of course this, like some other portions of this article, is simply a declaration of rights and the criticism that was made about not being enforcible or whether it is binding upon the officer or the citizen, or the application that should be made of it, I think ought not to weigh in determining this question. It seems to me that it is there as an admonition from the great sovereign power of this State to every officer and every citizen and every person within the State, that there shall be frequent recurrence to fundamental principles, and to say that it is not enforcible [*note*]in itself, is not an objection to the section, and I hope it will stand.

The motion to strike out was lost.

Mr. MALONEY. Mr. Chairman, section 25 was stricken out. Is it in order to propose a substitute in the place of 25?

The CHAIRMAN. If there is no objection it may be offered.

Mr. Maloney offered the following as a substitute for section 25.

Every citizen of this State shall be free to obtain employment wherever possible, and any person, corporation or agent thereof, maliciously interfering with or hindering in any way any citizen from obtaining or enjoying employment from any other corporation or person shall be deemed guilty of a misdemeanor.

Mr. VARIAN. Mr. Chairman, I move the committee rise.

Mr. WELLS. Mr. Chairman, I do not rise to oppose the motion for the committee to now rise, but I just wish to call the attention of the committee to the fact that section 4 has not been passed upon, so that when we again resolve ourselves into the committee of the whole, the declaration of rights will still be the order upon the calendar.

The CHAIRMAN. The article except the preamble and section 4 has been disposed of.

The CHAIRMAN. I do not understand so. It seems to me that the time must come when debate in committee of the whole will have to cease. Of course, it is open for amendment in the Convention.

Mr. VARIAN. You will remember that a motion was made in the beginning that we proceed to consider this article by sections, and amendments to be offered were to be received by sections; under that state of the case, I should think the chair's idea would be the correct one.

The CHAIRMAN. That is as I understand it. The motion is that the committee rise.

The motion was agreed to.

The committee rose and reported as follows:

The committee of the whole, having had under consideration the preamble and declaration of rights, beg leave to report progress.

The Convention then took a recess until two o'clock p. m.

TUESDAY AFTERNOON, March 26, 1895.

The Convention re-assembled at 2 o'clock p. m., with President Smith in the chair.

Mr. Squires moved that the Convention resolve itself into committee of the whole, which was agreed to.

The Convention then resolved itself into committee of the whole, with Mr. James in the chair, and proceeded to the consideration of section 4 of the preamble and declaration of rights.

COMMITTEE OF THE WHOLE.

Mr. CHIDESTER. Mr. Chairman, I would like to know how many amendments, if any, are before the house on this section.

The CHAIRMAN. There are four amendments, as I understand, before the committee. One by Mr. Eldredge, one by Mr. Maloney, one by Mr. Buys, and one by Mr. Kimball.

The first business in order will be the amendment by Mr. Eldredge.

Mr. SQUIRES. Mr. Chairman, if I understand the status of section 4, it now lies upon the table. I move that section 4 be taken from the table for consideration.

The CHAIRMAN. I suppose, gentlemen, the first matter in order of these amendments will be that of Mr. Kimball, of Weber.

Mr. ELDREDGE. Mr. Chairman, I have a substitute that I wish to offer to take place of and supersede all of those amendments.

The CHAIRMAN. Do you wish to withdraw your amendment?

Mr. ELDREDGE. Yes, sir; the one offered by myself and also the one offered by Mr. Kimball.

Reads:

No public funds or property in this State, whether accruing from taxation or otherwise, shall be appropriated or used for the purpose of founding, maintaining, or aiding, directly or indirectly, any church, religious denomination, religious or anti-religious society.

Mr. ELDREDGE Mr. Chairman, I mean this to begin at the word “no” in the twelfth line and strike out all thereafter.

Mr. KIMBALL (Weber). Mr. Chairman, I am willing to accept Mr. Eldredge's substitute for the first clause of the amendment I offer. It is substantially the same.

The CHAIRMAN. Then you withdraw your amendment?

Mr. KIMBALL (Weber). I withdraw the first clause of the amendment I offered.

The CHAIRMAN. If there is no objection, the first clause of Mr. Kimball's amendment will be withdrawn.

Mr. VAN HORNE. Mr. Chairman, I hope that the amendment will be voted down. I don't think it covers the {364} ground completely. In our speeches here the other day on the same subject, the question was made about leaving out societies other than religious, benevolent societies, fraternal societies, or infidel societies, so that they might receive by vote of the Legislature part of the public funds, and I don't understand that this amendment covers that objection, and it is entirely in line, as it seems to me, with the purpose of the amendment, that we should guard the public funds from going to any society that deals with the question of religion or merely conduct, and guard the public funds from being diverted from their ordinary and proper use. I have an amendment, if the amendment is voted down, that I think covers that and I am ready to propose it. It includes not only the religious organizations and societies, but benevolent and fraternal organizations and societies, and I think that that ought certainly to be included in some way in this provision.

Mr. CANNON. Mr. Chairman, I would like to offer as an amendment to the substitute_

The CHAIRMAN. The amendment is out of order, Mr. Cannon.

Mr. ROBERTS. Mr. Chairman, I, too, shall vote against the substitute, not because I do not want it adopted in this clause of the Constitution, but for the reason offered by Mr. Evans, of Weber. It seems to me, sir, that in this connection the word “secular” merely stands in antithesis to “religious societies.” If the word secular had remained I would be only to glad to vote for this substitute, but as it now stands, I could not vote for it, but shall vote against it, but hope that it can come up in some other form with the change that is suggested.

Mr. ELDREDGE. Before the question is put, I would ask, if I could get consent of the house, to simply propose the adding of two words to the motion. I will simply state what they are, add “anti-religious or fraternal societies.”

Mr. EVANS (Utah). Mr. Chairman, I object to it; I have got mixed up. I wanted to do away with the whole thing and return it to the same committee.

Mr. KIMBALL (Weber). Mr. Chairman, now, I move to strike out all that language of section 4, beginning with the word “no” in line 12 and ending with the word “establishment” in line 16, and insert in lieu thereof the following, “no public funds or property in this State, whether accruing from taxation or otherwise, shall be appropriated or used for the purpose of founding, maintaining, or aiding, directly or indirectly, any church, religious denomination, religious society, or any other institutution [*note*], society or undertaking which is wholly or in part, under sectarian, secular, ecclesiastical control.”

Mr. EVANS (Utah). I second the motion.

Mr. VARIAN. Mr. Chairman, I move as an amendment that the word “secular” be stricken out.

The amendment of Mr. Varian was agreed to.

The question being taken on the amendment of Mr. Kimball, of Weber, It was rejected.
{365}
Mr. BUYS. Mr. Chairman, my motion to amend was to insert the words, “as a qualification” after the word “required,” in the sixth line, so that it would read, “no religious test shall be

required as a qualification for an office of public trust or for any vote at any election.”

The amendment of Mr. Buys was agreed to.

Mr. VAN HORNE. Mr. Chairman, I move to strike out, beginning with the word “no,” in the twelfth line of section 4, and ending with the word “establishment” of the language in the section and inserting, “no public money or property shall be appropriated for or applied to the founding, maintenance, or support of any religious, agnostic, anti-religious, fraternal, or benevolent organization, society, or order, or for the support of any establishment or institution under control of the same.”

Mr. SQUIRES. Mr. Chairman, I move to strike out the word “benevolent;” I do not want all the charitable institutions of the State barred by any proposition of that sort.

The question being taken on the amendment of Mr. Squires, it was rejected.

The amendment of Mr. Van Horne was rejected.

Mr. VARIAN. Mr. Chairman, I move the adoption of the section as it stands. The motion was agreed to.

Mr. EVANS (Weber). Mr. Chairman and gentlemen of the committee, I have a section which I desire to be added to section 25.

Mr. VARIAN. Mr. Chairman, I suggest a point of order, that under the order of the committee, we have gone through every section and the matter has been subject and open to amendment. We have concluded the business of the committee so far as this article is concerned, with the exception of the preamble, and further amendments are not in order in committee of the whole.

The CHAIRMAN. I think the point of order is well made.

Mr. EVANS (Weber). Mr. Chairman, I ask an appeal from the decision of the chair.

Mr. WELLS. Mr. Chairman, the gentleman from Salt Lake, (Mr. Varian), says we have concluded the consideration of the declaration of rights all excepting the preamble. While I recollect that there is a rule which provides that the preamble shall be considered last, I call the attention of the committee to the fact that we read this preamble and passed upon it in the first place.

Mr. VARIAN. The gentleman will pardon me, I understood that to be the case. I did not state that as an absolute fact.

Mr. WELLS. We have absolutely passed upon the preamble.

The CHAIRMAN. That is as the chair understands it.

The motion was agreed to.

Mr. EVANS (Weber). Mr. Chairman, I would like to ask unanimous consent to have these sections which I prepared read. It is absolutely necessary to go into the bill of rights; I want to explain as a matter of personal privilege (and I will be frank when I do it) it was prepared and inserted in the bill of rights by the full committee but some of my democratic friends object to it. They thought there was something wrong about it, and upon careful consideration, I find that they were wrong, and I am willing to say now that they were wrong, and that that ought to go in. It is one of the most important things that can be put into that bill of rights and there ought to be absolutely no division about it.

Mr. VARIAN. Do I understand the gentleman to say that it was reported by the committee?
{366}
Mr. EVANS (Weber). It was at first. Mr. VARIAN. It did not come to the Convention.

Mr. EVANS (Weber). It was agreed to be reported, but it was stricken out out of deference to some of our democratic friends, and I now ask to have it read.

The CHAIRMAN. If there is no objection it will be read.

The same was read as follows:

And every grant of franchise, privilege, or exemption shall remain subject to revocation, alteration, or amendment.

from a quarry to any individual or corporation, if it were granted without any power to revoke, it would become a contract between the individual and the State, and they would hold it as long as they or their successors lived, or during the life of the corporation. Now, we do not want to do that_no Republican does. I congratulate my Republican friends that they put it in there; it is in all the modern Constitutions.

Mr. EICHNOR. Washington included?

Mr. EVANS (Weber). Every one of them, Republican and Democrat. There is nothing political about it at all. It is simply right that we should retain this power to recall these privileges and grants when they are granted by the Legislature. I move its adoption.

Mr. SQUIRES. Mr. Chairman, I understand that the particular article which was stricken out by this committee was not exactly like the article which Mr. Evans has sent up to the clerk's desk. That article was in this language: “No law shall ever be passed granting irrevocably any franchise, privilege, or immunity,” and that article, as I understand it, was stricken out with the understanding that the matter should go to the judiciary committee, with the idea that they should make some report of a similar character on this subject.

Mr. EVANS (Weber). We cannot provide that in there at all. It is no place for it at all.

Mr. SQUIRES. Mr. Chairman, if it was the intention to have the article that was stricken out, presented now, why not have the article that was stricken out presented?
{367}
Mr. EVANS (Weber). I am perfectly willing.

Mr. SQUIRES. I would like to offer the original section as a substitute for the one offered by Mr. Evans.

Mr. EVANS (Weber). I simply changed the word “immunity” to “exemption.” According to the definition they are exactly the same in meaning. Everybody understands what exemption is, and everybody does not understand what immunity means. I accept the substitute. I do not want to
quibble about words. It is exactly the same.

The substitute as amended was adopted.

The CHAIRMAN. The chair observes ex-delegate Rawlins present. He is invited to a seat on the platform. [Applause.]

By request of Mr. Hill. the privilege of the floor was extended to Mr. Merrill, of Montana.

The committee then proceeded to the consideration of the article on education as follows:

EDUCATION AND SCHOOL LANDS.

The amendment was agreed to.

Section 1 was read.

Section 2 was read

Mr. KERR. Mr. Chairman, I move to amend section 2 in line three as follows, by striking out the word “free,” and adding after the word “schools” the words, “in which tuition shall be free, except as hereinafter provided.”

The exception referred to is in section 7, where provision is made that tuition may be charged for admission to the university. It would be better to have this so worded that there can be no doubt as to the meaning. There is no exception to the public schools, the exception being made only as to the charge for admission to the schools.

Mr. VARIAN. Mr. Chairman, I do not agree with the gentleman, that that would obviate his objection. I think it goes farther than is intended. I move to amend by striking out the words, “except as hereinafter provided.”

The CHAIRMAN. I understand you, then, Mr. Varian, you move an amendment to Mr. Kerr's amendment.

Mr. VARIAN. Yes, sir; I see no necessity for his amendment, but if he wants to put “free” after “schools” I have no objection.

Mr. KERR. Mr. Chairman. the objection I have to the amendment offered by the gentleman from Salt Lake is this: Should the appropriation to the university be insufficient, it may be very desirable that the regents shall have the power to charge a tuition fee. For instance, I understand that the appropriation made a year ago to the university was inadequate, but the law was such that only ten dollars could be charged for admission to the several courses of the university. Now, where the attendance is four or five hundred students, a charge of fifteen or twenty dollars a year is of great assistance to the institution, but if the amendment proposed by the gentleman from Salt Lake should prevail, then all the schools of the public school system, including the kindergarten, primary, and grammar grades, and the high schools and the university must be closed, there being no power in the officers of these schools to charge a tuition. That is the objection I would offer to the amendment of the gentleman from Salt Lake.
Mr. VARIAN. Mr. Chairman. my attention being called to section 15, I see no necessity for my amendment, or the gentleman's either. I presume it is the intention of this committee to provide for a free school system, other than the university, but I can confess I cannot see the necessity of it. It is perfectly clear. A uniform system of free public schools, except as hereinafter provided, and the proviso referred to is in {368 - EDUCATION AND SCHOOL LANDS} relation to the

university. That is the understanding, is it?

Mr. MAESER. Mr. Chairman, I hardly agree with Mr. Kerr in striking out the word, “free” before public schools, for the reason which he has already assigned. There is also the provision that such kindergarten schools as may be established by law; they also should come under that reason that Mr. Kerr has spoken of, because they are not absolutely free. That word free that is asked to be stricken out, before “public schools” should come after that_“common schools, which shall consist of primary and grammar grades, in which all children of the State, between the ages of six and twenty-one years may be instructed free.” I should desire that that word free be taken off from before “public schools,” as Mr. Kerr has proposed, and put it down where it should belong, after twenty-one years.” That would make the common schools free. That is those of the primary and grammar grades. There is a difference between public and common schools. Public schools comprises all from the university down to the kindergarten, but common schools are only comprised under the primary and the grammar grades. They ought to be absolutely free, Mr. Chairman,_the primary and grammar. Therefore, I move that that word free be placed down in line 10.

Mr. PIERCE. Mr. Chairman, I am in favor of the article as it stands.

Mr. CREER. Mr. Chairman, I second the motion of Mr. Maeser.

Mr. PIERCE. I am in favor of the article as it stands. It is simply a declaration that we are establishing a system of free schools in the Territory from the lowest grade up to the highest; that is all, and the proviso here, “except as hereinafter provided,” refers to the university. There may be times when the university is in such condition that the regents find it necessary in order to maintain its standing to collect tuition, and perhaps that should be left so that they could do it, but we for one thing. want to declare in our Constitution that the system that we have in this Territory is free schools, and that we maintain the proposition.

The CHAIRMAN. Mr. Varian, did you withdraw your amendment to Mr. Kerr's amendment.

Mr. VARIAN. Well, I will withdraw it.

The CHAIRMAN. Do I understand then that Mr. Maeser moves to amend Mr: Kerr's amendment?

Mr. MAESER. I shall state Mr. Kerr's amendment. The word “free” was to be stricken out before “public schools.” I move to amend that the word “free” should be placed on line 10 as referring only to schools of primary and grammar grades, because as has already been stated the university is not absolutely free; that should be left to the Legislature; it is not a business of the Convention to bind it down. Certain circumstances and conditions may arise in the future, which may make it extremely necessary to not have the university entirely free. In fact propositions are proposed to be made now that the regency will be empowered to charge fees for tuition under certain conditions. That would not make the university absolutely free. Therefore, in order to be consistent, we have to declare that the schools of primary and grammar grades are free and that it

is not left to the discretion of the Legislature, but the rest should be left to the Legislature. Now, this is an open question. Mistakes can be made and will be made by the Legislature, Mr. Chairman, and they may be made also by this Convention, and find their way into the Constitution, but there is that difference between a mistake in a Constitution and a mistake made by a Legislature; that mistakes made by a Legislature can be rectified within two years, while a mistake made in the Constitution is a very great deal more serious. There is a great deal more {369} trouble connected with rectifying them than mistakes in a legislature. Therefore, the provision reported by the committee empowered the university to charge if they thought necessary and conditions should arise where it becomes indispensable_to charge fees for tuition. Now, that would make it not free.

Mr. CREER. I desire to ask the chairman of this committee if it is the purport and intent of this article that from the kindergarten up to the university they shall be sustained and supported from the State school fund? Is not that the purport of the article?

Mr. PIERCE. No, sir; not at all_supported by taxation as provided by law.

Mr. CREER. Is not that then supporting the university from direct taxation?

Mr. PIERCE. Direct taxation, yes, sir; part of it.

Mr. CREER. Kindergarten as well?

Mr. PIERCE. The Legislature may provide for free kindergartens. In certain cities, Mr. Chairman, in answer to the remark made by Mr. Maeser, I will say that if his amendment prevails, you will notice that the system of the schools that we should have, only the kindergarten and the common schools would be free. It leaves the high school in such a shape that tuition may be charged in the high school, and I am opposed to that. You will see by examining the third subdivision of this section that such high schools that may be established by the Legislature or by cities, one or more districts, or one or more counties, as provided by law. Now the Legislature will provide a law very likely so that a high school need not be established in any county until the county is ready to support the high school. But if the county is ready to support the high school, then it is to be free to pupils in the high school. We ought to provide a system of free schools so that education in this Territory in all departments should be free. And my own idea is, that we should be free in the university, but it is possible that times may arise when it should be left to the discretion of the governing board of the university to charge certain tuition and that is what the bill provides for. I believe in letting the section stand as it is. I think that it meets the wants of the Territory just as it is.

Mr. LEWIS. Mr. Chairman, I think that the entire system should be free. No system of schools can claim to be national that is not so established. I take the position that when the state takes a child in the kindergarten and leaves him at the threshold of the high school, its work is incomplete. We believe it the duty of the state to fit and qualify the child for the citizenship in this State. We believe that every child in the State regardless of his financial condition should have equal privileges with others. That there should not be a provision to establish an aristocracy,

and a distinction between the child of the rich man and the child of a poor man, but that the child of a poor man, if he has the desire and ability, can rise above the condition of the common schools, and go on through the high school and university, and that it is not only the duty, but it is the high prerogative of the state to fit and qualify the students for the high position in the state, and that no child should be left in a position that he cannot comply with the demands of the state. Now, my friend from Utah County, by cutting off this system of free schools at the threshold of high schools, leaves the child in his education incomplete, therefore, we say it is the duty of the state to fit and qualify this child for all the demands of the state, carrying him through, commencing with the kindergarten, for I believe in the language of Dr. Harris, United States Commissioner, that through the kindergarten schools, especially in cities of {370} ten thousand inhabitants, educational forces reach the slums of society, and can reach in that way when they can reach them in no other way. And by taking the child to the kindergarten and carrying it through all the grades of the common schools to the high schools and universities it qualifies it for every demand of the state. Therefore, I wish to sustain the proposition as set forth in this section, that the system shall be free_not all by state taxation, but most of it by local taxation of county and district; that wherever a district or a county is amply fitted and qualified to establish a high school that they can, by legislative enactment, provide for that condition and establish their high school, and where the State is qualified to establish a university in all departments, that they have that opportunity to do so, in connection with the State taxation, out of the funds so generously appropriated by the national government. Therefore, I hope the members of this Convention will, when they consider this section, extend the duty of the State to the citizen and the child and see that every child has every opportunity in fitting and qualifying himself for the demands of the State.

Mr. GOODWIN. Mr. Chairman, if there is any one thing in the world that the American people are more unanimous about than any other, it is in favor of the establishment of the public schools. There is nothing the American people are so jealous about having taxes as their public schools. I presume the committee that have had this under consideration, have wandered over the same ground that has been wandered over here, and have crystallized on this section. In connection with the other section providing that tuition when necessary in the university may be charged for, it is absolutely necessary. When we speak of free schools, not one in forty will ever think of the university. Their idea is to take the child of rich and poor all alike_educate them in the same schools, until they get to that point where, if the spirit is in them, they will have a university education anyway, and if they do not they will be fitted to go out and take their chance in the competitions of this world. I hope the time of the committee will not be taken up, and that the amendments will be voted down, and the section adopted as it reads.

Mr. KERR. May I just explain that my motion was not to contemplate any change in the reading of this section at all? This provides that we maintain a uniform system of free public schools, except as hereinafter provided. This section is in reference only
to the university, and hence, I proposed my amendment. My motion does not change the meaning at all.

Mr. MAESER. Mr. Chairman, I have listened with great attention to the remarks of Prof. Lewis and Judge Goodwin, but it does not touch the question at all. The question here is not the merits

and demerits of the free school system. I am in for this. I am a strong advocate of free school systems. That is not the question here at issue. It is only this, whether it shall go into the Constitution or if it should not be left to the Legislature for the time being_that is the schools of the primary and grammar grade are already fixed. I raise no objection to that. The question is only for the high schools just now and the kindergarten. Not that I was objecting to them coming also under the free school system. As soon as we possibly can reach it, by all means let us have them free also. Now, we are entering into statehood. This Territory and the people will have a heavy taxation to stand. Can we afford it? Perhaps we can and perhaps we cannot. I do not know, I am no financier. I leave this to the Legislature to decide. Our first Legislature_whatever they say will be done, and if there is a mistake made {371} that mistake can be rectified, gentlemen, after two years, but if we to-day make a mistake and fix it up and burden the new State of Utah with a heavy expenditure, and heavy taxation necessary to meet it, and it should prove to have been a mistake, it is a very serious difficulty_much more so than if only the Legislature had made it for two years.

Mr. BOWDLE. Mr. Chairman, we discussed this matter very fully when we went over this article. I think it was the sentiment of the committee that if we are going to be economical, we had not better put our economy to too strict a test upon the free school system. I am in favor of economy in this new State. It will be absolutely necessary, but I am not in favor of curtailing one single iota of the free school system. I remember when in a country school of reading somewhere that sentence that you have all heard, that we must educate or we must perish. It is the fact, gentlemen, that we need all our institutions based on the idea of giving to the child an education that will fit him as a citizen. It is the first duty as we declare here that the State should provide ample means for the education of its children. Now, what does this bill provide? This bill provides that they shall be free, but it does not provide absolutely that you are to establish a high school. That is not established here, it is left with the powers that may follow us_with the Legislature to say_the Legislature can say a high school in such cities or in counties or in districts, as may be required shall be established, but whenever this is done, let it be free_let it be free_do not go and make that a kind of a public academy, with tuition charges. That would bar the poor boy and girl out and let the rich boy and the rich girl have the school right at their home. I am not in favor of that; I am in favor of it if it is to be a high school at all, that it shall be a free high school and the territorial powers by the Legislature will not establish that high school until it shall be demanded by the people, and when it is demanded by the people, I am in favor of letting it then be free. I favor this section just as it stands.

Mr. CREER. Mr. Chairman, I desire to say a word or two in behalf of the taxpayer. I am perfectly willing that our aspirations in behalf of the poor man's child should be laid in that direction, if we could afford it, but I am entirely opposed to this article as it stands to-day. I do not think with the increased burdens that will be placed upon us by taking upon us the garb of statehood, that we are prepared to support those higher branches of education by direct taxation as it does seem to me, Mr. Chairman, that if we are able to give to the scholar a good common school education as has been inferred by Professor Maeser, that we are then doing sufficient. Now, only the last year after the territorial tax of three mills and the county tax of two mills, I paid seven and a half mills out of eleven for school purposes, and it seems to me now that commencing with the kindergarten and going through the high school grade, and all those technical branches of

education and that to be supported by direct taxation, is just simply a matter of impossibility. It is placing a burden upon the taxpayer that he cannot carry. I believe, too, that California has just as good institutions in behalf of learning as we may aspire to. In support of this I would read section sixty-one, article nine, of the California constitution: “The public school system shall include primary and grammar schools and such high schools, evening schools, normal schools, and technical schools as may be established by the legislature or by municipal or district authority but the entire revenue derived from the state school fund and the state school tax shall be applied exclusively to the support of primary and grammar schools.” Now, Mr. {372} Chairman, the university had a very liberal donation granted by the general government and it seems to me that if it is desirable to give those higher branches of education that, that together with such preparations as may be made by the Legislature, would be sufficient without laying the foundation that these must be supported by direct taxation. I say that we must consider well the situation, whether we can afford to establish such a doctrine as this. It seems to me that California is sufficient in this direction. It is only placing these embellishments there. Why not go a step further and put the scholar into his office with a professional shingle out that he may be amply qualified to support himself in future life? I am opposed to doing this by direct taxation and I refer to the fact that we have all we can stand as the law is to-day, with regard to educating the youth of our Territory, but, together with the increased burdens that will naturally come upon the new State, it seems to me that we should not leave this in the Constitution, that it may sustain the university and all those technical branches by direct taxation. I believe California is right. That has passed through years of experience when they established this law that I have cited you to, and I am in favor of Professor Maeser's proposition. I think it is sufficient and then let the university be supported by private means.

Mr. IVINS. Mr. Chairman, I have not taken up very much time of the Convention in debate; I do not intend at this time to delay you but a few moments. The fact to which I wish to call your attention is this, that under the amendment proposed by Doctor Maeser, every child in this Territory between the age of six and twenty-one years will have the opportunity of attending school_a common school, just as good a district school as can possibly be provided, and that school will be maintained by taxation which will be general. Now, gentlemen, if we go farther, the question which confronts us is this, will we be able with the increased burdens of statehood that we must of necessity bear, will we be able to extend to every child in the State a higher education, and if that higher education cannot be made general to all of the children of this State, then I should be opposed to its being applied to any particular locality or county. It would be possible under the provisions of this section that higher schools might be established in some of the more populous counties, but it is not to be expected that for a long time in the future, if ever, those higher grades of education could be taught in the outlying counties.

I very much doubt the propriety_I very much doubt, gentlemen, the expediency of our fixing in this Constitution a rule by which we may be required to pay our taxes for the support of schools where the higher branches are to be taught. I should be very wiiling indeed to lend my support to this idea if it can be shown to be tangible. I should oppose anything that would in any way curtail the efficiency of the common school system in this Territory, the system of district schools that is now in vogue, and I do not believe that it is proper for us to put ourselves on record here as being in favor of a school system which will give opportunities to the higher branches to all of the

children of this Territory. We cannot carry such a load. For the present leave it with the Legislature of the State. Adopt the suggestion that is offered by Professor Maeser, and it will make our primary schools effective, and as I have said, give every child between the ages of six and twenty-one years the opportunity of obtaining a good common school education, and after we have done that, it is as Judge Goodwin says, if they are made of the right kind of metal they will get into a higher school and get a higher school education anyhow, {373} with the assistance that we may be able to render them. I am in favor of the amendment proposed by the gentleman from Utah County.

Mr. VAN HORNE. Mr. Chairman, it seems to me that the gentleman either has the wrong view of this case or else that I have. I may be mistaken, but it seems to me that it simply provides that such districts or counties as want a high school may have one as part of the public school education, and in that case will have to pay for it themselves I understand that that is the case.

Mr. IVINS. May I ask the gentleman a question?

Mr. VAN HORNE. Yes, sir.

Mr. IVINS. Under this section it is provided that the Legislature shall provide for the establishment or maintenance of a thorough and uniform system of free public schools, except as herein-after provided. Now, it goes on to say that the public school system shall include all of those different grades that are referred to in that section, so that whenever a time shall come that the Legislature may see fit to establish a high school in any county or city or precinct, that school becomes immediately entitled to its proportion of the funds, and under this section would be made free just as free as the kindergarten. That is the way I interpret it.

Mr. VAN HORNE. I do not understand it as being that way at all. I understand that the Legislature may provide for those schools and provide a way by an open taxation, by which they can be supported and it says, “such high schools may be established by the Legislature first or by the cities next or by one or more districts in the third case or by one or more counties, as provided by law.” The Legislature might say that one or more counties should join and have a high school for those counties, and might provide a way in which taxes should be levied to support that. The other provision with regard to the university_it seems to me that the subsequent sections provide for that. We have a large fund already in hand, or we will have when we become a State, for the support of that university. The question of technical education coming in as a part of the general school system, I think is 'open to objections, unless it is supported by a general fund. But I do not believe and I do not think we ought to say that the high school education is in anywise one in which the State should not take measures to provide for some localities having a high school, and supporting a high school, but I do not see anything in this section that requires it shall come out of the general common school fund. The Legislature may say that if Salt Lake City, or Ogden, or Provo, establishes a high school, that the high school in such cities shall be supported by a local tax to be given for the purpose. I understand the provision to be that common schools, just as Doctor Maeser has suggested_the primary and grammar grades, are the ones to receive the whole benefit growing from the sales of land, etc. That these high schools, when they are established, are to be supported by the localities which establish them, under the

provisions of the Legislature, as to where they shall be established and the method of taxation_the method of levying it, as it is done now, to legislative enactment, and special school tax in the district and on the vote of the electors and property owners of that district. I am in favor of the section as it stands.

Mr. MAESER. Mr. Chairman, I have one more remark to make. I appeal to Mr. Lewis, he is the commissioner of our common schools, and he will bear me out in one statement that I am making as a fact. Now, there are a great many of our district schools now that are not able with the support which they are getting from our taxation to keep up the whole year. Now, in Provo if they have to close up at the end of the third term for want of funds, {374} they cannot keep the schools all the year round. We have not been able thus far under our free school system in Utah Territory, to sustain our district schools with the funds at our disposal_to keep them open during the school year. They may do in Salt Lake City, I do not know, but they have not been able to do so in Provo. The teachers a year ago in Provo offered to teach for nothing if only the trustees would open the schools. They volunteered to teach one whole term for nothing. The trustees and authorities of the city did not except the offer. Now, this is not as it should be. We must secure our common schools, our primary and grammar grades first before all, because that means all the children of our people; it means them all. We have to secure them first and then, if there is any more left, by all means let us have the higher education. My record as a teacher has been for thirty-five years before this people. Nobody can charge that my heart was not devoted to the cause of education from the kindergarten up to the highest grade, but when I see the condition of affairs, I must say, as President Cleveland would say, that it is not a theory but a condition which confronts us.

Mr. PIERCE. Mr. Chairman, it seems to me that the argument of Doctor Maeser can be answered in this way. This bill does not call upon the Legislature to establish any high school in any place until that place demands it. If a county is only able to maintain the common schools, that is all the Legislature will require of them, but if the county grows and there is a demand for higher schools, then it ought to be so that the high schools can be established; and this Constitution is providing that the Legislature may establish those high schools whenever they find the demands of a locality require the schools to be established; and I say that in all the states, so far as my experience goes, there is an established system of free schools, and we do not want to be the State that is behind. If our schools are not in the condition that they ought to be, if our Territory is not in the condition that it ought to be as far as education goes, why, we will come up to that gradually, if we have the proper system behind us, and I think the section should be passed as it is.

Mr. ROBERTS. Will the gentleman permit me a question?

Mr. PIERCE. Yes, sir.

Mr. ROBERTS. Providing that the Legislature concludes to establish a high school in any locality, is that high school to be supported out of the general school fund raised by general taxation?

Mr. ROBERTS. You suppose, but I wish the direct question.

Mr. PIERCE. Yes, sir; the taxation in the district.

Mr. ROBERTS. And not out of the general school fund of the State?
                    
Mr. PIERCE. Never. The idea of that may be a little ambiguous in words, but the Legislature provides a method by which it can be established, giving to the people of a certain locality the right to collect funds of the various property owners and taxpayers to carry on that system when the locality demands it.

Mr. ROBERTS. Mr. Chairman, I was not here at the commencement of this discussion. There seems to be a misunderstanding even between members of this committee, some understanding that high schools shall be established by the Legislature, being paid out of the school fund raised by general taxation, and others believing that such high schools must be established and maintained by a local taxation. I understand that first to be the position of Doctor Maeser. If that be his understanding then, sir, I am in hearty {375} accord with his amendment. If, however, the contention made on the other part that these high schools established by the Legislature in cities or towns in different localities are to be sustained by local taxation, then I could not have any very great objections, at least to voting for those high schools so established and maintained to be free in the district. But I believe that it is the part of wisdom to move slowly in this thing and to be very sure of the ground on which we are standing. I believe, sir, that it is the duty of the State to provide first for the reasonable education_the common school education of all the children of the State. I believe that that is of first importance, and shall be satisfied if the new State can get that far in the matter of providing education for its children, and I am in accord too with the gentlemen who hold that that is about all we can do and do it well. If those who contend that the high schools established by the Legislature are to be sustained out of the general school fund raised by taxation. if they are right in this contention, then I call the attention of the committee to this fact, that if that be conceded, from every section of the Territory there will come petitions and appeals for the establishment of high schools in this locality and that locality and the other locality, until they burden the people with the establishment of high schools that will render the efficiency of the common schools far below that which we wish to make them. I would rather see secured to all the children a good common school education than to undertake to educate a few in the higher branches of education. We know, sir, the tendency of high schools_     

Mr. GOODWIN. May I interrupt you a moment?

Mr. ROBERTS. Certainly.

Mr. GOODWIN. Is not it absolutely true that the money raised by taxation for the school fund will have to be absolutely equally divided among all the children of the State, and that no particular locality can get anything extra?

Mr. LEWIS. May I ask you, how does the law operate to-day? We have a territorial fund that amounts to so much per capita, this year about $3.95, that fund goes to each county. It is distributed per capita through the counties in proportion to the census enumeration. Some of the counties establish their high schools, others do not. Now, in no instance has that fund robbed the people of the common schools for the high schools. The same thing can be done under this law in the new State.

Mr. ROBERTS. Answering the proposition now submitted to me, will say this, I will take it for instance in my own county. Suppose the condition exists that the gentleman has supposed, that in addition to our common schools, we should have also one of these high schools. Then, sir, the amount that is distributed to us per capita would not only have to sustain the common schools, but the high school as well. I am arguing this question upon the supposition that the gentlemen are right who say that these high schools are to be sustained out of the public tax. Now, sir, proceeding with my argument, we know the tendency of educators. It is a proper one, and that is to carry the people just as far as they possibly can in the direction of higher education. I don't complain of that, {376} but men who are engaged in any special profession are very apt to become men of one idea. To them the matter of education becomes paramount. They lose sight of every other consideration, and they would lead us to such heights at the very first bound in the matter of education, that instead of leaping to the pinnacle they hold out to us, we would be more apt to fall in the ditch at the foot of the mount. Now, sir, it is to provide against such contingency as that and to secure first as the basis of our educational system and as the basis of preparing men for good citizenship, to have an efficient and splendid common school system established first, and then let these higher educational institutions come gradually. They are not of so deep necessity to the welfare of the future State as the public school is, and I think it is the part of wisdom to go slowly in this matter and by going slowly to build well.

Mr. KERR. May I ask you a question?

Mr. ROBERTS. Certainly.

Mr. KERR. Is it your desire that there should be a provision in here prohibiting the establishment and maintenance of free high schools in the State?

Mr. ROBERTS. No, sir; that is not my desire.

Mr. KERR. Well, then does section 2 provide otherwise than that the Legislature may establish them? There can be no other interpretation given to the statement here.

Mr. ROBERTS. I am very pleased that the gentleman asked that question for the very reason that

it brings to my mind an item that I intended to refer to and that was this, that it is granted to the Legislature to establish these high schools; then, as I think I pointed out the fact that from all sections of the Territory there will come up a clamor for the establishment of high schools and the demand will be immediate and universal, until our efforts at establishing the best system of education for the people of the State, will be diverted from the common school system which
I think we ought to make efficient.

Mr. CANNON. Mr. Chairman, I think upon this question, the gentleman has made a mountain out of a molehill. In the first place, a distinction is drawn between high schools and public schools. The gentleman in his remarks referred to public schools, clearly making a distinction as against the high school, as if the high school is not a public school. As contemplated in this article, and as it exists in fact, the high school is as much a part of our public school system as is the primary grade, and why should we object to a class or a community establishing high schools if the pupils who reside in that vicinity are fitted for the high school? Would you place a premium upon ignorance and upon stupid