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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.

Roll call showed a quorum present.

Prayer was offered by Delegate Raleigh of Salt Lake.

Journal of the fifty-third day's session was read and approved.

Communication from N. W. Clayton, manager of the Salt Lake and Los Angeles Ry. Co., inviting the members of the Convention to an excursion to Saltair Beach, was read.

Mr. Ricks moved the invitation be accepted with thanks, and 2 p. m. Sunday next be the hour fixed for the excursion.

Mr. Heybourne moved as an amendment that the hour of 4 p. m. to-morrow (Saturday) be the time fixed for the excursion.

Mr. Evans, of Utah, moved as an amendment to the amendment that action on the invitation be deferred until the end of the session.

Carried.

The committee on public buildings and state institutions reported as follows:

Convention Hall,

Salt Lake City, April 26, 1895,

Mr. PRESIDENT:

Your committee on public buildings and state institutions report that they have had under consideration the various propositions referred to them, and submit to you for incorporation in the Constitution the accompanying article.

We return herewith files No. 24, 53, 84, 89, 102 and 127.

ELIAS MORRIS,

Chairman.

The Convention then proceeded to the third reading of the article entitled mines and mining.

Mr. EVANS (Utah). Mr. President, I would really like to be enlightened upon how that question got before this Convention. My recollection is that in the committee of the whole that matter was

killed. There was no report. It was not agreed that any report of that article was to be made in any way, shape, or form, as I remember it, and I should really like to know how that came before this Convention.

The PRESIDENT. It could not be killed in the committee. It was brought back to the house to be killed. The committee recommended that it be killed. In the effort to kill it, somebody brought in a substitute and that is now before the house.

Mr. EVANS (Utah). It would certainly have to be reported back here. As I remember it, it was not done. No action of that kind was taken and it is still in the committee of the whole if anywhere.

Mr. RICKS. Mr. President, as I understand it, the committee of the whole recommended that the article be stricken out_that is, not adopted, and I made a motion that the report of the committee of the whole be adopted, but it was voted down and that as a substitute brought the whole article up.

Mr. HART. Mr. President, there was no question but what the article came properly before the Convention. The committee of the whole, if you remember, struck out the three sections, but did not strike out the title.

Mr. EVANS (Utah). Isn't it a fact that the whole article was stricken out and wasn't that the motion that was made? Would not that include the title?

Mr. HART. I don't think it would.
Mr. EICHNOR. I arise to a point of order. I think this is wholly out of order. If Mr. Evans desires light, let him come over and find out.

Mr. HART. Mr. President, I think there is certainly a misunderstanding. As the secretary read last night, he read two of the sections that were stricken out, then came the motion to substitute or insert section three, a section from the Idaho constitution, and as the clerk read it last evening, just before the vote was to be called on the final passage of the article, he had sections 1 and 2 in there. Now, Mr. Chairman, it is very clear that this matter is properly before the Convention on third reading, but it is equally clear that sections 1 and 2 are not in here. There was a motion made by Mr. Ricks or some one else to adopt the report of the committee, but without that, those two sections would not be before this house, unless some one moved to insert them.

Mr. BUTTON. Mr. President, the first two sections were read and so was the third one, and when the third section was read, Mr. Kerr offered a substitute for section 3.

The PRESIDENT. I think the matter is legitimately before the house.

Mr. HART. I call for a ruling of the chair as to whether sections 1 and 2 are now before the house.

Mr. HART. I call your attention to the fact that heretofore we have always taken up an article just as it was amended by the committee, and if the section was stricken out that section was not read here, and it was not considered that was before the Convention on third reading_unless some one moved to insert on third reading.

Mr. BUTTON. When those reports were taken up by the Convention, did {1528} not they always adopt the report of the committee?

Mr. HART. That is what I say.

Mr. BUTTON. Did they adopt the report of the committee in this instance?

Mr. HART. No; the paragraph was stricken out in committee of the whole. That paragraph is out unless it is moved to insert it on third reading.

The PRESIDENT. The ruling of the chair is that the article is properly before the house.

Mr. EVANS (Utah). Mr. President, I arise to a point of order. I submit to you, sir, that section 3 in substance has been before this Convention in the bill of rights.

Mr. SNOW. I arise to a point of order. The chair has decided this question. If he wants to appeal from it he may do it.

Mr. EVANS (Utah). Mr. President, I accepted that decision, and I make a point of order on the article itself. I am surprised at the gentleman from Washington.

Mr. HART. I would like to suggest to the gentleman that that objection should have been made at the time Mr. Kearns presented it. It is now too late. We have voted upon that. The only way to get this before the house now is on a motion for a reconsideration of that article that we placed in there, offered by Mr. Kearns.

Mr. EVANS (Utah). Is it a fact that we have passed upon section 3?

Mr. HART. Yes, sir; we voted section 3 in.

Mr. EVANS (Utah). Well, I must confess that I missed that from head to foot. I was here last night.

Mr. HART. Mr. President, the minutes of the last day show that I am right about this matter.

Mr. EVANS (Utah). Mr. President, if we can dispose of it in this way, I think it is the shortest

way out. Here is a rule. Because you have blundered over that, I want to ask the gentleman from Cache if he is prepared to say_there is no provision saying when that shall be done. It simply says it shall not be entertained.

Mr. EICHNOR. I arise to a point of order. I hold that this colloquy is out of order.

The PRESIDENT. The point of order is well taken. The whole of it is out of order.

Mr. RICKS. Mr. President, I want to know if the article on mines and mining is open for amendment?

The PRESIDENT. Yes, sir; the whole article is before the house. You can do as you please with it.

Mr. RICKS. Mr. President, I move an amendment in line 5 of section 3, to strike out the words, “useful, beneficial or.”

Mr. KEARNS. Mr. President, I accept the amendment.

Mr. EVANS (Utah). Mr. President, I move to strike the whole thing out_section 3.

Mr. ANDERSON. Mr. President, I would like to ask for information, if sections 1 and 2 have been adopted? Did the president rule upon that?

The PRESIDENT. The whole of it, of course, is open to amendment.

Mr. ANDERSON. Mr. President, I sincerely trust that this motion of Mr. Evans will not prevail. I think it is necessary that this should be in the Constitution for the development of the resources of our State. This section protects all classes of citizens alike; protects the irrigator, the agriculturist, the farmer, and those engaged in mining. It will be necessary for the people that they have roads to go into the canyon after timber, after wood, after lumber, or after building rock, and these roads will pass over the lands of others. As the State increases in population all of these lauds will be taken, and it will be necessary for the public use that they should have these roads_    
Mr. HART. Mr. President, I arise to a point of order. The motion of the gentleman from Utah County, to strike {1529} out this section, is out of order, for the reason that we voted this in last evening. The only way that he can bring that matter up is on a motion to reconsider the vote of last evening.

Mr. EVANS (Utah). It has been amended this morning.

Mr. THURMAN. I will ask if it has not been amended this morning and changed entirely?

The PRESIDENT. It has been amended and changed this morning.

Mr. THURMAN. Yes, that has been done; it is too late, as you said awhile ago' to raise the question.

Mr. HART. Mr. President, even if a few words have been stricken out, you cannot strike out the rest of it. If you have stricken out a few words of it you can raise the objection to striking out the rest of it.

Mr. ANDERSON. Mr. President, it is also necessary for the development of the desert lands of our State that canals be taken out from our streams and rivers, and in order to take these canals out, it would be necessary to cross the lands of others. This is a public use and I think it should be so declared and also for the manufacturing interests of our State. I think that in the future our cities and towns and our homes will be lit up by electricity and heated by electricity, and this power will be gotten from the mountain streams, and in order to develop these canals will have to be taken out. This, I contend is a public use. And also for the purpose of drainage. The health of the whole town might be at stake. Large canals may have to be constructed in order to drain a town or the farming lands of the community. This is a public use, and I think that we should insert it in the Constitution. And in regard to mining, we find that mining claims are located often in inaccessible points in the mountains, and it is necessary that they go upon the lands of others for tunnel sites and dumps and tramways, etc., in order to develop the mineral resources of the State. I think that this is very important, and it affects every citizen. Therefore, I hope that this will not be stricken out.

Mr. BUTTON. Mr. President, I move the previous question.

Mr. CHRISTIANSEN. I wish to offer an amendment.

Mr. SNOW. I arise to a point of order. The previous question has been called for.

The PRESIDENT. Before we put the previous question, it strikes the chair that this section second_there was a question raised in regard to it last evening, that there is something there that may work improperly. I wish the Convention would look at it before we proceed.

Mr. JAMES. Mr. President, I hope the Convention will not order the previous question until this matter has had a chance to be debated.

Mr. THURMAN. Mr. President, now, I will admit that you cannot debate this, but I would like to make one explanation. I arise to a personal privilege. This matter, Mr. President, yesterday afternoon came up in a very peculiar way. After having been killed in committee of the whole, after the house was well nigh empty of its benches, a great many members had gone out, it came up here and was rushed through, and we asked that the matter might go over until this morning in order that an explanation might be made. Now, this morning the previous question is moved to shut off debate. I want to say to you, gentlemen, it takes fifty-four to pass this article, and you are not going to do it unless you have a fair, full discussion.

Mr. RYAN. Mr. President, I would {1530} like to ask the father of this third article_

Mr. LAMBERT. I arise to a point of order.

The motion for the previous question was rejected.

Mr. JAMES. Now, Mr. President, I wish to make a few remarks upon this section, and I wish to say before proceeding to make any remarks that this is one of the most extraordinary proceedings that has ever occurred in this Convention, since we have convened.

Mr. CREER. Mr. President, I arise to a point of order. Is he speaking on any motion?

Mr. JAMES. Yes, sir; I am speaking on the motion before the house before any amendment is offered. I claim the protection of the chair.

The PRESIDENT. What is it you are speaking on?

Mr. JAMES. I am speaking on the amendment before the house, offered by Mr, Ricks, or I do not know who.

Mr. RICKS.. I arise to a point of order, The amendment was accepted and it is not before the house.

Mr. JAMES. Then, I am speaking on the entire business.

Mr. EVANS (Utah). Mr. President, I submit to you that I made a motion to strike out.

Mr. HART. Did the chair rule that that motion to strike out is in order?

The PRESIDENT. Yes; I did. Mr. James will proceed with his argument.

Mr. JAMES. As I was about to say, this is the most remarkable proceeding that has come before this Convention since it has convened. And I am astonished, Mr. President_I cannot understand this proceeding. I cannot comprehend why on yesterday evening a proposition of this nature was sprung upon us, or attempted to be forced through, and this morning attempted to be put into our Constitution, without ever being heard from by a member upon this floor. Now, you know, Mr. Chairman, that in the beginning of the discussion of this question I was strongly in favor of extending to the mines and other industries of this Territory rights that I thought should be granted them for the purpose of their development, but I knew I was treading upon dangerous ground, when I even conceded in this Convention that this Convention had the right to declare the right of way over a man's ground for private purposes, but I believed that it was the best thing that we could do for the benefit of this mining industry, and this matter was voted down. It was disposed of by this Convention, and now here comes a sweeping proposition before this

Convention, that if it goes into the Consitution [*note*], in place of benefitting the industry will become one of the greatest obstacles and hindrances to it that it is possible for men to put upon the statute books of this State. Now, I assert that no man that understands his business as a miner, that has followed the business as I have followed it, will say the contrary of what I have repeated before this Convention. And, Mr. President, if you want to bring nine-tenths of the vested property holders in mines in this Territory to vote against this Constitution, you pass your act as you have attempted to put into It our Constitution and you will get it done. Now, mark my word. I know what I am talking about. I have prospected this intermountain country from the British Possessions to Mexico on the south. I have been at the business for the last thirty years. I have observed it in all its ramifications, and I know what the miner wants, and I know what he does not want, and I will tell you, Mr. President, no miner wants, after his years of toil in the hot suns and in the snows, and in the storms, and in the exposure that he goes through, to secure the piece of mining property_he does not want any set of men to come upon his ground and declare that erecting hoisting works for private purposes, to work some {1531} other man's mine, is a public use. Now, think of the proposition_coming onto a man's ground and erecting hoisting works for private uses and declaring it for public purposes.

Mr. KEARNS. May I ask the gentleman a question right there?

Mr. JAMES. Yes, sir.

Mr. KEARNS. I understand that this says, “hereby declared to be a public use and subject to the regulation and control of the State.” Is the future Legislature going to send a man onto your claim to put a shaft down?

Mr. JAMES. The future Legislature should have no business through this Constitution to be permitted to perform such an act.

Mr. KEARNS. You are afraid the future Legislature might not be as intelligent as this house.

Mr. JAMES. I am not afraid of the people anywhere. I have confidence in them, but I am afraid of this Constitution, if it proposed to do such things as it is proposed to do in this act.

Mr. CRANE. May I draw the gentleman's attention to one section of the preamble and bill of rights? If you notice in section. 23, it says that private property shall not be taken or damaged for private use, unless by consent of the owner.

Mr. ROBERTS. I think that was stricken out.

Mr. JAMES. Mr. President, now, about ten or twelve years ago, within twenty miles of this town, there was a mining claim that has paid out in this town since that period, for over one hundred thousand days' work, that would have been subjected to closing absolutely under this provision, and that labor that has been paid for, never one dollar of it would have been expended. Now, that is a matter that comes directly under my observation. Here is a mine located, it is worked at one end of the claim. The workers of that mine do not know where the ore is going, but near the other

end of the claim, or partially towards the other end of the claim, up on the mountain side, come some fellows, and locate a worthless claim, and commence to dump down. At that time the surface ground that was owned by the right of patent from the government, that was then of no value, except surface purposes, that had been granted by the government, and five dollars an acre paid for it. Now, supposing those men that spent twelve thousand dollars there, trying to get into the mine, had called a jury under some legislation, and condemned that surface ground and paid for it, what would a jury have said it was worth? Why, they couldn't have said it was worth more than a few dollars_maybe five or ten dollars, or twenty dollars an acre. It would not have amounted to anything. They could not conscientiously say anything more, but by and by when the owners of that property developed their property, until they found it was necessary for them to erect hoisting works right where that dump came, what would they have done? This surface ground, which in the wisdom of the government of the United States had been given to the miner, for the purpose of enabling him to develop his claim, was owned by somebody else, and had been taken away from him, and he found it impossible to go ahead there and open his mine. Now, that is the condition, and that is just what this proposition proposes. It is proposed to put the thing into a shape so that through some accident the surface ground of a miner may be taken away from him at a time when there is no particular value to it, and by and by, when the ore extends under that ground, and it is necessary for him to go upon that ground and upon his mine and work it, it is owned by some other institution that has nothing of value, that cannot come in there and utilize it, and he is shut out, and he has got to pay those men back again after securing that land from the government {1532} of the United States. Now, that is the provision that it is intended to compel us to accept in our Constitution. And I say to you, it is a most vicious thing, in my mind, that has come to my attention since this Convention has convened, and I hope that this Convention will see to it that no such thing is put into our Constitution. I hope that they will do what is right, give a right of way of roads or anything of that kind, for the working of mines, and do not allow dumps or hoisting works. Why, Mr. President, how long will it be until there will be a right of way through your shaft for public purposes_a right of way through your tunnel for public purposes? Why, you are opening the door here to the most dangerous proposition that was ever heard of in the world, and I cannot believe that this Convention will be so indiscreet as to adopt a proposition of that kind.

Mr. BOWDLE. Mr. President, I want to say just a few words. I do not want to go over what was discussed days ago on the question of eminent domain, and all that kind of thing, but this is a very queer article in some regards. It starts out with the necessary use of lands for construction of reservoirs and storage basins. Now, necessary to whom? It does not say to the public. Under that section, any man could claim that there was a necessity for him going across, over, or through any other person's land, and if he could make it appear to a jury that that was true, it would go right through. It raises the question here, do you own your land or does some other man own it? Under that section there is no guaranty to property in this Territory. We have now a guaranty of private property to the private individual, and it can only be taken for public use
something that will benefit the people, but in that section there is no such thing. Any one man can claim that he has the right to go across his neighbor's land. Gentlemen, I take it that this Convention is not a wealthy body of men, and I want to say to you that if you count the wealthy people who will suffer_it will be the poor people under this section who will suffer, and don't you forget it. The wealthy man is always able to take care of himself, and the wealthy corporation

is always able to take care of itself, and to get just what it wants, and it usually does. If they do not do it in one way they do it in another way. And it is the poor fellow that needs the protection, and it is for the poor man that I would urge my objections against this section. I do not care whether he is a miner or agriculturalist. Suppose you have a claim down here, be it a mining claim or be it a land claim, I. do not care which it is. Some man wants to go across there. He claims that it is necessary for him to go across there. You say that it is not any necessary use, you don't want your place cut through that way by him. Your only relief against that individual man is a lawsuit; no difference how poor you are, the only relief you have got is a lawsuit. That is all, you have got to do it. And if he is a wealthy man or a wealthy corporation, he don't care for a lawsuit_not a particle, when he can carry his point and compel you to give that that you don't want to give. You don't have to give it, that is true. There is a provision here that you are to be paid for it, but I submit to you, gentlemen, that is not sufficient.

The question is, do you want to be compelled to sell out, at some other man's price, your own property? That is the question. If you are willing to give this privilege to compel every man in this Territory to sell his property at some other man's price, then put this in there and you have got them. That is what it means. You have not anything to do with saying what the price is, and probably you have had enough to do with juries to know they are not {1533} to be entirely trusted in those regards. You may want that as a whole. It may have a peculiar value to you. You would not sell it under ordinary circumstances for an ordinary price. They say to you, “This man can go across that way.” A neighbor on the other side says, “We want a way across there.” It is necessary for him. He has a little patch of land over on the other side, he wants to get water to. This law gives him the privilege of going the other way. There is absolutely no limit to it, the way you have it here_positively no limit. Now, I tell you what is the trouble with the gentleman. Some of us have known individual cases where some stingy fellow has sat down and has said that where it was absolutely necessary, some other man should not go across his property for public benefit, and he has caused a great deal of trouble, and we have concluded that this would remedy that. It may remedy that, but it brings the other evil that I have just been speaking about, and I tell you that whenever you invade the right of private use, you take away a very sacred right, a right that is guaranteed to every man in this broad land. Now, gentlemen, I am opposed to it, upon those principles, and shall vote against it, and vote against the article on its final passage, if that is put in, because I cannot conceive of any real reason why that article should go in there and thus put property of every individual in this Territory up as against the property of his neighbor.

Mr. EICHNOR. I would like to ask Mr. Bowdle a question. The last line or two of section 3 provides that these uses are hereby declared to be public and subject to the regulation and control of the State.

Mr. BOWDLE. I do not think It means anything.

Mr. EICHNOR. Mr. Bowdle, who is the real owner of the property of the State?

Mr. BOWDLE. I say that the Legislature is not_answering your question in the negative.

Mr. BOWDLE. The individuals own. it, and the state cannot lay its hands upon that private property solely and except for public use.

Mr. CANNON. Did you ever come across a principle in law that an individual simply has the title to the land and the real owner of the land is the State?

Mr. BOWDLE. I do not think that that has anything to do with this question. That is an old theory, I admit, but I do not believe that it has one thing to do with this. Where are you putting the title, Mr. Eichnor?

Mr. EICHNOR. I am asking the question of you and you fail to answer.

Mr. BUTTON. I would like to ask Mr. Bowdle a question.

Mr. BOWDLE. I would like to answer Mr. Eichnor. I say that the people own the property and not the state, and there is no principle of law in this. world that lays down that the state owns it.

Mr. THURMAN. May I ask you a question?

Mr. BOWDLE. Yes, sir.

Mr. THURMAN. If the state owns the property, as suggested by my friend Eichnor, is there any need of this article in here at all?

Mr. BOWDLE. Absolutely none, and it would be a perfect absurdity.

Mr. BUTTON. I want to ask Mr. Bowdle_he says that the last three lines of this section do not amount to anything.

Mr. BOWDLE. No; I said legislative control.

Mr. BUTTON. I understood you to say that it did not amount to anything.
Mr. BOWDLE. I say I do not think {1534} it does amount to anything in this. It would take me an hour to answer you what it means and what it amounts to. It amounts to robbing one man for the benefit of another man. That is what it amounts to.

Mr. KIMBALL (Weber). Mr. President, on this third section of the mining article I have a little something to say, and as my friend from Beaver told us (Mr. Anderson), I am in favor of that article. I am in favor of it for this reason, that God Almighty when He created this world, created Utah with the rest of the world, as my friend suggested_San Juan among the rest. It will not be doubted or questioned that irrigation is a principal factor in developing the Territory or State of

Utah. There cannot be any question about that, and while it is true that most of the water rights in Utah are vested, at the same time agriculture is one of the principal factors in the development of this State, and must be for all time to come, and it is necessary in order to develop the agriculture that we have our ditches that we have, irrigating canals, and we want those, and so far as this Constitutional Convention has gone now, there is no provision for it, and the third section, as read by the secretary, provides for that. In my opinion it is necessary that this Convention adopt that article, so that leaving mining out of the question altogether_for the benefit of agriculture it is necessary that we adopt that article so that we can have the right of eminent domain so far as water ditches are concerned. It is equally necessary to develop our mines that we have the right of eminent domain so far as water ditches and drainage and dumpage is concerned.

Mr. JAMES. May I ask the gentleman a question? Having proceeded to develop our mines and our agricultural resources in this Territory_have not we been doing it for the last twenty or thirty years?

Mr. KIMBALL (Weber). Yes, that is true, but we are changing our condition now from a Territory to a State.

Mr. JAMES. Did not we do it under a statute of the Territory and under a statute of the United States?

Mr. KIMBALL (Weber). We did, and it is very indefinite, and all that depended upon the decision of judges entirely. There was no statutory regulation of it. It depended upon the decision of judges, and it depends now if you don't adopt this article. While the law remains the same, it depends upon the individual judgment of the men that we elect to the bench, and I say put it into the Constitution, so that the judges cannot evade it in any way, so that when the question comes up, therein the constitutional article that we have got the right to exercise the right of eminent domain for the purpose of agriculture, for the purpose of mining, and for sanitary purposes. That is what we want.

Mr. THURMAN. Do you consider mining a public purpose?

Mr. KIMBALL (Weber). In this Territory, yes, sir; I do consider it a public purpose.

Mr. THURMAN. Do you consider agriculture a public purpose?

Mr. KIMBALL (Weber). I do in this Territory.

Mr. THURMAN. You consider all of these so?

Mr. KIMBALL (Weber). I consider every industry mentioned in that third section as read by the secretary a public purpose. We are in an anomalous condition.

Mr. THURMAN. Then, let me call your attention to section 23, which provides for taking property for public purposes.

Mr. THURMAN. I agree with you that they are and that the courts will so hold. Now, I will ask you another question. Is there anything in this section that is before the Convention that is a private use?

Mr. KIMBALL (Weber). No, sir; I do not think so.

Mr. THURMAN. Then, why declare it to be a public use if it is already a public use?

Mr. KIMBALL (Weber). I will tell you why. There is a division of opinion among the judges east of the Rocky Mountains and west of the Rocky Mountains as to what is a public use, and I say now, to settle that whole question, we want to put in our Constitution what is a public use.

Mr. THURMAN. Suppose there should be something here that is strictly a private use_can we make it a public use by simply declaring it so?

Mr. KIMBALL ( Weber). Not by that section, no, sir; I do not think the section that we have under consideration contemplates the making of a purely private use a public use, but we are shut off here by the mountains. We are an agricultural community, and we are a mining community, and if you take the decisions of the states east of the Rocky Mountains, where there is no irrigation ditch, there is no mining ditch, there is nothing that we can do that would not be a private use, as construed by the decisions of the courts east of the Rocky Mountains. We are following the decisions of those courts. Now, what we want to do is_we are here situated so that we are obliged to have an education. We are obliged to have mining, and we want to declare those things public uses. That is my point exactly.

Mr. THATCHER. I am not an attorney, gentlemen of the Convention, but the doctrine announced by my friend from Salt Lake is quite a new doctrine to me. Until he had made the statement that the people had no property, but that it was all in the State, and that all the people had was the title thereto_it had occurred to me heretofore that title, for instance, the United States patent, was irrefragable evidence of ownership. I desire to call the attention of the Convention to this fact that this whole mining business was condemned by this Convention, nothing having been left, as I understand it, except its title, but by peculiar methods we find this thing presented to this honorable body for re-discussion. It may be that we are able to give a definition of what is for a public purpose, and when we do we restrict the Legislature to that definition. You will remember, gentlemen, that the irrigation bill was mainly killed because those who presented the bill advocated the control of the water right by the State.

Now, gentlemen, I have some property in this Territory, which under such a condition or under the last two lines of section 3, which is now before the house with a motion to strike out_I am

perfectly willing to give that property to any gentleman on this floor_my houses and lands, and barns, and horses. The only condition that I would require is this, pay the taxes on that property, keep it in good repair, keep my carriages and buggies and harness just as good as they are now, feed my horses and keep them fed, just leave the control with me, and that is all I ask. When you want to use the horses I will be there to tell you that I have the control of them. If I don't manage better in the future than I have in the past, why then I will think myself no financier. That is just what these two lines do_the very thing that we fought against and killed by almost unanimous vote on this floor. But we find it introduced here again. Many {1536} private matters declared to be a public, and those matters placed under the control of the State. I object to it and shall vote for that reason against that section. I shall vote for striking it out, feeling, however, that if attorneys well versed in the law can draw a section, after mature deliberation, that will give the proper definition of what is for a public purpose in order to keep it out of the courts, the expense of litigation that must follow, well and good, but the first two sections I am opposed to_this appointment of a new officer to go to coal mines, who is taken charge of by the manager of that mine, taken into every part of it, where there is no danger, he goes back and reports that all is right, and in three days afterwards there is a fearful explosion and a dozen or fifty or a hundred lives lost. I am opposed to this section and to the bill as it stands, and shall vote for striking out section 3 on that proposition.

Mr. BUTTON. I would like to ask the gentleman a question. He spoke about creating a new office. Have they already got a coal inspector or a mine inspector?

Mr. THATCHER. Yes, sir; a thing we ought to do away with.

Mr. BUTTON. It would not be a new office then?

Mr. THATCHER. It would be a new office of the State, I take it.

Mr. KIMBALL (Weber). I would like to ask Mr. Thatcher a question. Is not irrigation one of the prime necessities of the Territory?

Mr. THATCHER. I think so, and equally so in mining. I am just as favorable to the provisions of mines as I am to agriculture.

Mr. KIMBALL (Weber). What objection have you, then, to declaring those public uses?

Mr. THATCHER. I would have no objection if that section defined what I would conceive to be a public use, but when you build on other people's property hoisting works and dumps and things of that kind, without reference to

Mr. KIMBALL (Weber). Under that section you cannot do it, without a jury or some other legal tribunal.

Mr. THATCHER. If that is so, let the court pass upon the whole question.

The PRESIDENT. The chairman of the committeee on mines and mining.

Mr. ROBERTS. Mr. Kearns. I thought I had heard some attempts to find out who the father of this child was, but I could not locate the matter. From my knowledge of the character of the gentleman I should never have thought that he would have hesitated to have proclaimed his progeny, but, sir, I would really like to know when this Convention is to consider a question settled. Now, sir, there are several things in this Constitution that I would like to agitate, but the Convention has been against me and against some of the propositions that I favor, and I have accepted the action of this Convention.

Now, sir, I remember that this subject was up for discussion when the very first article presented in this Constitution was brought upon the floor of this Convention, and after several days of debate and earnest effort to come to an understanding in regard to what would be proper, just, right, and prudent, we settled the question, and we settled it, sir, upon contrary principles to what are laid down here in this third section. When the taking of private property for private uses and the taking of private property for public uses was under discussion, the decision of this Convention in effect was that those matters should be left to the Legislature and to the courts of this country. Then, sir, this question was brought up again on this article of mines and mining and we went over it, sir, again in the committee of the whole, and again we {1537} rendered a verdict against such a thing as this third section is, and after the entire article was stricken out by the action of the committee of the whole, then we are again confronted with the self-same proposition. Now, sir, it seems to me, that men ought to learn to take defeat of their proposition when majorities are against them, and I think it is a foolish waste of time to bring up again and again and again the same old proposition. Sir, I look upon this section as crude_extremely crude, and as containing things that are mischievous in their nature. The gentleman from Salt Lake, Mr. Bowdle, discussed this question, saying what could be done with private property if some individual should say that it was necessary. Why, sir, it may not only be claimed_he need not claim that it is necessary. It shall be sufficient for the accomplishment of his purpose under this language if he can only say that it is for some useful purpose.

Mr. KIMBALL (Weber). Does not the court have to pass upon the question of necessity or use before it can go to a jury?

Mr. ROBERTS. Then, sir, if it does, why not permit the court in the first place to define the useful and the public purpose at the same time?

Mr. KIMBALL (Weber). For the very reason that the majority of the decisions are that this is not a public use. We are here peculiarly situated. We want to declare what is a public use. If you go east of the Rocky Mountains, the things we declare here are a publice use are not a public use there.

Mr. ROBERTS. I was not aware that the words “useful and beneficial” were stricken out, but, sir, I take it that we shall all be equally safe, the miner, and the agriculturist, and the manufacturer, if

this question is left to the Legislature and to the courts, and if there is any meaning in the last phrases of this section, that is where it hinges. At any rate is it to be declared to be a public use and subject to the regulation and control of the State?

Why not leave it in the control of the Legislature in the first place? And then here is another sweeping proposition that I cannot understand the reason for, and that is to make use of these necessary lands for the various purposes named, not only for the purposes declared here, which I am of opinion mean a private rather than a public use, in some instances, but to the complete development of the State. I would like to ask the gentleman who drew the article what he means by that? He will have an opportunity of speaking and I shall watch his speech very closely to hear his definition of that purpose. And, sir, I protest against this continual bringing up upon the floor of this house a snake that has been killed time and time again, and I think that we ought to stand by the decisions that we have now twice rendered upon this subject.

Mr. CREER. Why was it that you continually brought up the female suffrage question after it had been voted against?

Mr. ROBERTS. Mr. President, in inanswer to that_there was an opportunity here yesterday to bring back the article on rights of suffrage the whole of it. I wish to call the gentleman's attention to the fact that I voted against bringing it back here and throwing it open for discussion, and I wish to say further on that proposition that that question was not brought back, only as it appeared in the committee of the whole, and then in the Convention, but this question has been decided in the committee of the whole. When the article or bill of rights was discussed in committee of the whole it was killed then. It was brought upon the floor of the Convention and killed then. It was brought again in committee of the whole, on the article of mines and mining, and was. killed then, {1538} and then it was sprung upon us as a. surprise yesterday afternoon. When the article on irrigation also_

Mr. KIMBALL (Weber). May I ask you a question? Wasn't it understood when it was killed in the bill of rights that it could be brought up subsequently in this Convention in an appropriate article?

Mr. ROBERTS. I have no such understanding.

Mr. KIMBALL (Weber). I so understood it.

Mr. SNOW. Mr. President, I think the discrimination that this body will be able to exercise will convince them that the insinuation of Mr. Roberts in relation to foolish waste of time is not well taken. I want to remind the gentleman that this section, as reported by Kearns, has taken the usual parliamentary routine, and that it has come legally and in order before this body, and it has not been a foolish waste of time, except upon those who would like to see it adopted. They have not taken any undue advantage, neither have they brought it before this Convention at any other time than when it could come regularly and legally before it, and according to parliamentary rules and order. I would like to ask the gentleman of what use mines or agriculture will be without these rights of way? Whether they will be of any use whatever, whether it be public, or whether it be

private use? Now, you take an arid region, and if we do not have the right to condemn lands for storage basins, for reservoirs, or for canals, and ditches and flumes, the land will be of no use to us whatever. It will neither be a private use nor a public use. This is substantially the law to-day. There is a territorial statute that confers substantially the rights of this section upon all the agricultural lands and settlers, and I submit that in all arid regions these rights are absolutely necessary to the maintenance and perpetuation of agricultural life, and I can see no way when it is left to the control of the State of any poor man being imposed upon, but I can see where poor men who wish to congregate themselves together and unite their labor and capital would be unable to condemn the land of some corporation or some rich man without they had this defined as a public use. They could not build a reservoir; they could not construct canals to their lands, because of a standing in the way of those who held this land, and they might be, as it were, a dog in the manger contending for prices that these men could not meet and could not obtain. I am not in favor of this going through without just compensation being first made, but I think it is an eminent domain_that land could be condemned. It is entirely different in relation to water. We can get plenty of land, but we cannot get water. I think the circumstances are entirely different, of those who refer to striking out the water article for this purpose. I think their point is not well taken for these reasons. We have lived under this statute which has been recognized all over the Territory for many years, and I see no reason why we should not perpetuate it.

Mr. IVINS. Mr. Chairman, I want to call attention of this body to the fact that this question has never been before this Convention until this morning, notwithstanding the remarks of other gentlemen to the contrary. In the bill of rights there was nothing said in regard to the declaring of certain property or certain things to be public uses. And that was one of the objections, that private property shall not be taken or damaged for public use, without just compensation. That was section 23, as it was originally reported. Then, that private property shall not be taken for private use, unless by consent of the owner, except for private ways of necessity and for reservoirs, etc. The very objection that was raised to this was that that was private property taken {1539} for private use, and that those uses were not declared to be public. That was one of the objections raised to it.

Mr. ROBERTS. I will ask the gentleman from Washington if he does not remember that the gentleman from Salt Lake brought in or submitted a substitute which made a declaration of public purpose only, and that was discussed and discussed?

Mr. EICHNOR. That was Mr. Van Horne.

Mr. IVINS. Yes, but it was not exactly in the same terms that this is, from my recollection. Now, let us go on a little further. It has been said that this question was settled when the report of the committee on mines and mining was introduced here; that is not the case. The section reported from the committee on mines and mining provided that the necessary use of lands for rights of way, for tunnels, flumes, etc., was declared a public use, and the objection was raised here that agriculture was not included in this, and consequently members refused to vote for it, because they said it was a discrimination between mining interests and the agricultural interests, so that in order to meet this objection the chairman of the committee on mines and mining introduced the section which is now before us, which provides that not only for mining, but for agricultural

purposes, these shall be declared public uses. And I contend that in its present form it has never been before this committee for consideration, therefore, this ground is not well taken. Now, the gentleman says the article is crude. That may be the fact, but if it is crude, let us perfect it, and not leave it in the indefinite condition that it is. I apprehend, gentlemen, that a greater injury_a greater hardship will be wrought upon the poor farmers of this Territory, unless this section is adopted, than can be possibly wrought if it shall be. There are objections to it, certainly, grave objections, to leaving this question without some declaration. There are railroad corporations now in this Territory that control vast areas of land, with unlimited means behind them, to contest the right that might be claimed by any body of farmers to construct a canal across their lands, and such matters confront us now in the northern part of this Territory, where canals are contemplated and railroad companies absolutely refuse to grant the right of way to the poor men who are seeking to construct them. Now, I shall vote for the passage of section 3, just as it is, unless some member can amend it and make it better. I am willing to assume a part of the responsibility for it, in connection with the chairman of the committee on mines and mining, of which I am also a member, and I do not think there will be any hesitancy at all upon his part in assuming the fatherhood of this child.

Mr. VAN HORNE. Mr. Ivins, do you remember the fact of an amendment to section 23 of the bill of rights that public use should include reservoirs, flumes, tunnel and mill site, and dumps, upon, and rights of way over and across the lands of others for railroads, roads, tramways, water ways, and drains, which was amended by the gentleman from Salt Lake (Mr. Richards) to include pipes, conduits, etc., for mining, milling, domestic, agricultural, and municipal purposes?

Mr. IVINS. Yes, I remember that something of that kind was_    

Mr. VAN HORNE. More carefully worded I think than this, and that was voted down by the Convention?

Mr. IVINS. I remember that something of that kind was introduced, but I submit, notwithstanding the fact that that amendment might have been voted down, it might have been very materially different to the one that is now before the house, from the fact that the insertion of a few lines would have changed the status of the whole question. {1540} Now, I am free to admit that when this question was first under discussion I was very much inclined to the opinion that such a section should not be inserted in the Constitution; but the more I thought of it, the more I reflected in regard to conditions that exist in the sections of country from which I come, where I know that canals and reservoirs are now under course of construction, and I know that in order to utilize that water upon vast areas of desert land, it will be necessary to pass over the lands of others. I have concluded that some such provision as this is necessary, and I believe that we will make a greater mistake if we omit it than if we insert it.

Mr. HOWARD. Mr. President, I am in favor of this section being passed, and I recollect, as Mr. Van Horne mentioned, about the amendments introduced by him. I know that I voted against them at the time, but they were not in the shape that this present section is. This section was introduced here last evening, as a substitute for the one introduced by the committee; it provides “and subject to the regulations and control of the State.” That does not mean that the State shall

take the control of everything in the State and furnish the means to carry it out with. It does not mean that the State shall furnish the means to develop mines or to develop the farming industry, or anything of that kind, but it means that the Legislature shall control it in this way, that they might provide means whereby these rights of way may be obtained. The Legislature may provide under this section that the price, be what it may asked by the individual, shall be paid for this right of way, or it may provide that the property may be condemned by condemnation proceedings and a valuation placed upon it. It may provide that that valuation and that price shall be paid before the property shall be taken. And the Legislature may also provide in regard to what is a necessary use. This says a necessary use of lands. It is left to the Legislature to provide what that necessary use is. Now, we have in the Enabling Act_Congress has given to the State of Utah, several million acres of land, and it is to be presumed that two or three millions of that will be agricultural land. There is no man on this floor that will get up here and say that we have water at the present time for watering one million acres of land that is not appropriated, without it is some_probably Green River on the east, which I don't know of a place now where there is that much land that water could be taken to, but for the sake of the agricultural college, for the university, for the sake of our public schools, for the sake of these various institutions, for which Congress has given this land, I say that this section is necessary, because what use is that land to the State without it can be developed? What use is it to the poor man to take up and farm on the desert without he has the right to construct a ditch or a canal and get the water to it, or to build a reservoir. where he can store the water before he takes his canal? I claim, Mr. President, that the adoption of this section will increase the value of the public lands of this State in a great measure, and be a means to furnish and to guarantee to the poor man or to others that may want to take up this land, the right to take canals or ditches to it to develop it. I believe that the section ought to pass, and leave it to the Legislature in what way it shall be disposed of.

Mr. VAN HORNE. Mr. President, I thought that this Convention would make a very great error if they passed this section worded as it is at the present time. I am in favor of a general declaration, carefully worded, of public use, including necessary extended works for the purpose of irrigation, development, and mining, but I want to call the attention of the Convention to some of {1541} what I consider the weak points in this article under consideration now. The first part of the section is, “the necessary use of lands for the construction of reservoirs or storage basins.” I think it entirely proper to designate that as a public use, because a reservoir or storage basin we know from the nature of things is not the particular use of an individual, but the use of a more or less extended operation of the community_of the public at large. So far the article is all right; following on down, “or for rights of way for the construction of canals, ditches, flumes, or pipes to convey water to the places of use for any necessary purpose,” is all right. They should have those rights of way, because it does not interfere with the title to the land, nor to the general use. It is simply a way of conveying something useful to the public across the private property of another and only gives them an easement_a right of way for that purpose across that land, and is not taking the private property of the individual. Notice, however, gentlemen, now how the section reads, “or for drainage.” Not saying that it is necessary drainage. It does not say that it must be necessary, nor that this shall be a public use, but if it is convenient for some one, or desirable or it is their whim that they drain a certain portion of land, then they can do this. There conies in a semi-colon “or for the drainage of mines.” Simply a matter of convenience or necessity, whether a man might want to put up a pump to drain his mine or not. You say by this

article whether it is for the drainage of mines, whether it is simply convenient or not, he can condemn the land of others in order to get across it with drainage pumps. Further on, “or the working of the mines.” I know that it is necessary_I know that it must be necessary before he can do that, but the working of mines generally is a public use, so that if it is more convenient to work them in one way than in another, he can say that the way that is most convenient to him, or that he considers most desirable, is a public use and that consequently he is entitled to condemn the land for that use. It goes on, “by means of roads, railroads etc.,” declaring them as necessary means of development, and then to show that it does declare them as necessary in the way that the man who owns the property and works it may judge best and most desirable for him, and says, “or other necessary means.” These are necessary and any others that the court may construe may be necessary also. Now, gentlemen, see how far it goes. They are necessary uses, what for? Not for the reasonable development of these mines, which would be held to be a use by which the mines could be worked and the fruits thereof enjoyed, by the man or company owning them, but are other necessary means to their complete development. What does it mean? Did you ever hear anything so broad? It means that if by adding any of these rights_taking any of these rights away from the individual, you can make a more complete development of this in that way, than you could in the other_a more desirable one to the man who owns the mine, and you can condemn the land of another man for the purpose of so doing.

Mr. KEARNS. This section says, “the necessary.” Now, you can go on and argue fundamental principles of it all day. The State has the control of it, has it not?

Mr. VAN HORNE. What portion are you calling attention to?

Mr. KEARNS. The first three words in the last two lines.

Mr. VAN HORNE. I was calling at-tion [*note*], not to the opposition to the general declaration of a public use. I was calling attention to the fact that this article in my opinion is artificially drawn_that it goes further than any man on this floor intends such an {1542} article to go, and the way it is constructed_separating that first paragraph from the ones that come afterward, it leaves it open to construction that would be just simply ruinous of the rights of private property in this Territory. I am not opposed to the proposition, as I said before. I introduced the section on public use after consideration with eminent legal gentlemen in this town, for insertion into the bill of rights. It was drawn carefully and hours were spent upon it by men who are known to the community and bar here, and to the courts, as men of eminent ability. I believe that there should be a declaration of public use that will give our courts_will impose upon our courts the necessary duty of saying when certain things come up for a condemnation on the ground that it is a public use, that mining and irrigation are public uses, and where the necessity can be shown to carry them out, that the courts should give to the men desiring the right to exercise eminent domain over the property of others_

Mr. IVINS. I would like to ask the gentleman a question. The gentleman says that he is in sympathy with the general idea of this provision, but that some parts of it are dangerous. I want to ask him if he cannot suggest an amendment?

Mr. RICKS. Mr. President, I move that this article go over until tomorrow to allow the gentlemen to agree upon some proposition to be presented to the Convention.

Mr. ROBERTS. Let us settle it now.

The PRESIDENT. The question before the house is on the striking out.

Mr. MORRIS. Air. President, I consider that to strike out this section 3 or to kill it_it means to kill enterprises and industries of every kind in the new State. That is just my opinion in a few words, but it may not be perhaps exactly right from the wording. Some might take advantage of it to the in jury of his fellows, but I think that an amendment of a few words, it can be made a benefactor to a new State, and we cannot afford, gentlemen, to throw any obstruction whatever against the interests of mining and agriculture, for we all depend on it, and I favor to place this section 3 in the Constitution that it may stay there as long as the power is given to the Legislature to regulate and govern and to control these matters.

Mr. THURMAN. Mr. President and gentlemen of the Convention, I am in favor of the motion to strike out. If I could offer any amendment that would accomplish what gentlemen in good faith seem to want to accomplish, I would gladly do it, but I am unable to do it, and it seems that the gentlemen of this Convention are unable to do it. Now, I want to read two or three lines of this proposed substitute and ask every gentleman upon this floor if he desires any such control to be given to the State. If we will read the first line or a part of it and omit all of the specifications down to the general provision at the close, it brings into plain glaring light what this Convention is now asked to do. “The necessary use of lands * * * * to any use necessary to the complete development of the material resources of the State.” The meaning of that, gentlemen, is simply this, it does not mean mines and mining alone. It is not agriculture, but under this section you cannot imagine any industry in which one single man can engage, if it is for the complete development of the resources of the State, but what eminent domain here is proposed to be exercised in his behalf. A complete development of the resources of the State, gentlemen, means right to strike one lick towards the completion of it, and in order for a private citizen who has a little herd or flock of ewes up in the mountain, a dozen or so, and he wants to develop a {1543} little spring of water_of course that is necessary to a complete development of the resources of the State, that he should have the right to do that_and in order to do that, it is necessary that he should have the right to subject the land of every individual in the State, so far as necessary to that complete use. And so it is with any industry that you can conceive of or imagine, gentlemen. I tell you there has never been a proposition brought before this Convention that is as vicious as the proposition we are now considering, and if I stood alone, gentlemen, I would vote to strike it out. And when we ask gentlemen on this floor, “Do you think mining is a public use? Why, yes. Do you think agriculture is a public use? Why, yes.” So do I think so, and I say, being a public use, we have provided for it so that there can be no escape. If I ask, “Gentlemen, do you want to subject private property to a private use? 011, no.” Then, if you want to subject it only to the public use, why not rely on section 2 of the bill of rights as, nearly every state of the Union has done? I tell you, gentlemen, you want to subject private property to private use, and it is not in

the power of this Convention to say that the property of one man shall be taken from his pocket and put into the pocket of another. You cannot do it, gentlemen. The courts will say that your Constitution is unconstitutional. It is unquestionable.

Mr. KEARNS. Have not all the states got this provision?

Mr. THURMAN. Idaho has it, and Idaho has had other provisions, gentlemen. Idaho is not a model for me to follow its legislation.

Mr. KEARNS. Any more of them got it?

Mr. THURMAN. Its legislation is unconstitutional and has been, and every member on this floor knows it. I do not look to that quarter for light upon the question of what is proper legislation, and if Idaho did it and if it followed some other state that illyconsidered the question, what has that got to do with us here? I will tell you, gentlemen, if this Convention were to say to-day that one man might put his hands into the pocket of another and take his money out and put into his own_if we should declare that, next year when New Mexico comes to adopt a Constitution, and wants the provision, it would cite the Utah Constitution as an example. That is where we lead to. Gentlemen, let us stand on what we have done three or four times in this Convention. Let us strike this out like men, and say that it must be hands off when you come to touch the sacred rights of private property, unless it be for a public use. Now, coming to that question, one moment and I will conclude. I say that mining is a public use. I say that agriculture is a public use, and the courts of Utah will hold it to be a public use, so far as it is a public use; but when you depart from the public use and bring it down simply to a private use, you have no more right to do that than you have to go and take a horse of your neighbor, simply because it is doing nothing and you can use it to develop completely the resources of the State. That is what the State could do under this provision. Gentlemen, I might just as well be frank with you. I tell you, you cannot adopt any provision by which you can declare that a private use is a public use. You cannot do it. The courts in the end will decide that question.

Mr. HART. Will the gentleman permit a question? Supposing a farmer, the owner of a tract of land, say 164 acres, to get water on the land has got to take a ditch across the land of his neighbor, he has either got to take the ditch across the land of the neighbor or build an expensive levee, almost equal to the value of his land. His neighbor refuses to permit him to take a ditch across that land, although {1544} just compensation is offered for it. Does the gentleman understand that under our present law the owner of that 160 acres of land could compel his neighbor to permit a ditch across that land, or would he have to either abandon his land or construct the expensive levee?

Mr. THURMAN. I do not know; the courts would decide that question, and if the court decided that it was purely a private use, I say let him abandon his land. If you cannot get property without taking you neighbor's property from him, you are not entitled to it. That is the ground I stand on.

Mr. HART. Suppose another case. By taking five acres of your neighbor's land you build a storage basin and reservoir, which will irrigate a few acres of land. Your neighbor refuses to

permit you to have that live acres of land, although you are willing to pay double and treble the value of the five acres. Would it be to the interests of the State to abandon the use of all the land that might be utilized by constructing that reservoir, or would it be to the interests of the State to require that individual to give up his land?

Mr. THURMAN. I think the courts would hold it to be a public use, but the courts ought to decide it. That is the ground I stand on. It is not for this Convention here to decide that question.

Mr. KEARNS. Is it not a fact_you are a lawyer, Mr. Thurman_that the courts of California, Pennsylvania, West Virginia, hold that it is not a public use?

Mr. THURMAN. Well, I am not familiar with all the decisions. I know that it has been held each way, but I take the position again, that after all we have got to be bound by the courts. Your declaration here is not worth the paper it is written on. You cannot take the private property of an individual and give it to another private individual, and you cannot say that whereas it is only a private use now, by the simple ipse dixit of this Convention we are going to make it a public use, in order to get around the question. You cannot do it.

Mr. VAN HORNE. Is not it a fact, that by declaring a public use, we put upon our courts the burden where there was a conflict in authority of deciding that under our law, that public use held by some to be public, and by others to be private_to hold under our law that it was public?

Mr. THURMAN. I will tell you what I think about that, Mr. Van Horne. I think that the courts of the Territory would be governed by the great consensus of public opinion as to what was the public use. We cannot get around that. Courts ought not to be governed by public opinion, but on a question of this kind, they would take judicial notice of what the people generally believed to be of material interest for the public use. That is what I think about that, but I do not think it would have any weight any further than being merely directory.

Mr. JAMES. Is not there a distinction between the proposition put to you by Mr. Hart, where something is for a public use for the whole people, and the provisions of this section. Is not this first law in the interests of the private individual?

Mr. THURMAN. I think so; I cannot see it in any other way. If it was not so, then we would be willing to rest on section 23.

Mr. ANDERSON. I would like to ask Mr. Thurman a question. If all these matters are left to the courts, what is the use of our having a Constitution at all?

Mr. THURMAN. The matters we have got involved in this question are left to the court; I do not say that every matter is left to the court; this is, decidedly.

Mr. GIBBS. Is it not a fact that there are thousands of acres of land so situated in Utah at the present time that {1545} we have to take our ditches across private property in order to enable us to water our lands?

Mr. FARR. Mr. Chairman, I have listened with a good deal of interest, part of the time, and part of the time I have been mortified and chagrined and have all sorts of feelings to realize that this assemblage_body of men had plenty of time and all the time there is approaching to spend. Why, I have sat contented. I have tried to be contented at least, although I was aware that there were a great many that had business at home, that wanted to get through to attend to it, but it does not seem to me this Convention, the way they argue and talk, expect that our future Legislatures were going to get any men that had sense or ability, but that all the ability is centered right here. Well, now, I want to say to you, I have not the least doubt but what some of the men here will be in the future Legislature, so we must not despair that we have got all the ability here. We have got plenty of law on all these subjects that we have been talking about to-day. All these things have been contradicted satisfactorily by the courts, and why cannot we leave this matter to the Legislature? Why should we spend so much time? We might spend here day after day, and when we get through, be further apart than we are now. Why cannot we leave this matter to the Legislature to manage? As I said before, there is plenty of law now already enacted to manage all these cases, and after we have made all the laws we can, if we could get to work and establish this section, and the courts would have it all to settle there; it has got to come there, because there won't be any person that will feel it his right to settle upon it. It has got to go to the courts, and we have got an abundance of law that if there is not_let the next Legislature make the laws. Why should we spend our time here and legislate for things that the future Legislature can provide for just as much as we can?

Mr. CHIDESTER. Mr. Chairman, I move the previous question.

The previous question was ordered.

The roll being called on the motion to strike out section 3, the result was as follows:

AYES_46.
Allen
Barnes
Bowdle
Boyer
Brandley
Cannon
Chidester
Coray
Cunningham
Engberg

NOES_39.
Adams    
Anderson    
Kimball, Weber
Lambert
{1546 - MINES AND MINING - PROHIBITION}
Button
Clark
Corfman

ABSENT_19.
Buys
Call
Christiansen
Eldredge
Evans, Weber
Goodwin
Hughes
Kiesel
Low, Cache
Miller
Morris

PAIRED_2.
Mackintosh    
Sharp.

The president declared the motion carried and section 3 struck out.

Mr. HART. Mr. Chairman, I move that sections 1 and 2 be stricken out, and the title.

The motion was agreed to.

The PRESIDENT. The next business is the schedule and future amendments.

Mr. ANDERSON. Mr. President, I would like to offer the following sections: “The Legislature shall provide_“

Mr. SQUIRES. I arise to a point of order. We have now stricken out not only every section, but the title to the article.

The PRESIDENT. There is nothing left. It is gone.

Mr. HART. Mr. President, I move that the report of the committee of the whole on the subject reported by the committee on schedule, future amendments, and miscellaneous, be adopted.

Mr. IVINS. Mr. President, as an amendment to that motion, I move you that the report of the minority of the committee on schedule, future amendments, and miscellaneous, upon the question of prohibition, be adopted.

Mr. SQUIRES. Mr. President, I submit that that is hardly in order. It is the reverse of the other proposition. If we do not adopt this other report, we will have to adopt the minority report.

Mr. IVINS. Mr. President, I wish to say, I do not care to go into any debate upon this question, but I would like to show that the motion was made in that way, and I call for the roll call.

The motion of Mr. Ivins was rejected.

Mr. HART. Mr. President, examining the report of the committee of the whole, I find that the minutes do not make it clear as to what action was taken in the committee of the whole upon this

matter. Therefore, I modify my motion that the majority report of the committee on schedule, future amendments, and miscellaneous, be adopted. That will make it clear then what we are voting on.

The roll being called on the motion of Mr. Hart, the result was as follows:

AYES_65.
Adams
Allen
Anderson
Barnes
Button
Cannon
Chidester
Christiansen
Clark
Corfman
Creer
Cushing
Driver
Eichnor
Larsen, C. P.
Lemmon
Lewis
Lowe, Wm.
Lowe, Peter
Lund
Maeser
Maloney
Maughan
McFarland
Moritz
Murdock, Wasatch
Murdock, Summit
Nebeker
{1547 - CORPORATIONS}
Emery
Evans, Utah
Farr
Francis
Gibbs
Green
Hammond
Hart
Haynes

NOES_19.
Bowdle
Boyer
Brandley
Coray
Cunningham
Engberg
Halliday
Heybourne
Ivins
Jolley
Larsen, L.
Murdock, Beaver
Partridge
Peterson, Sanpete
Raleigh

ABSENT_22.
Buys    
Call    
Crane    
Eldredge    
Evans, Weber    
Goodwin    
Hughes    
Kiesel    
Lambert    
Low, Cache    
Mackintosh    
Miller
Morris
Pierce
Preston
Richards
Ricks
Robinson, Kane
Spencer
Stover
Strevell
Varian.

The president declared the majority report adopted.

The Convention then resolved itself into committee of the whole, with Mr. Ivins in the chair, and proceeded to the consideration of the article entitled “Corporations other than municipal.”

Section 11 was read.

Mr. SNOW. Mr. Chairman, I am opposed to the substitute for this section. One reason is I do not think the authors of it will attain the object for which it was offered. I see considerable harm in it. It provides, if I understand it correctly, that every corporation that is organized shall pursue one line of business only, and if they undertake any other kind of business they would of necessity be obliged to incorporate again for that special business. Now, I am aware that in a great proportion of this Territory, particularly in the southern portion, there are a great many co-operative stores, whom this would effectually destroy. In Iron County and in Beaver County, and in nearly every city, there are co-operative stores, they have a store, saw mill, lumber mill, shoe factory, tannery, roller mill, and woollen mill, or something of this kind consolidated and combined, and if this

section were to obtain and be put in the Constitution, it would effectually kill their co-operative measures and would be a source of inconvenience and great financial loss to these people that are engaged in this kind of industries. We expect and hope at some future day in our own county to establish such industries in such a manner. Now, if to obviate this we are under the necessity of incorporating separately, it will be at great expense, and I submit, Mr. Chairman, that if the advocates of this substitute are right when they say that the same board of directors could act, they virtually nullify what they wish to obtain. If the same board of directors can act in these various corporations, the same capital will be invested. The same persons will control it, and have it under their control, and all that will be gained by it will be separate corporations with increased expenses. I submit that we cannot legislate against capital in this way. That to prevent legitimate investment, they will get around it in some way. And I submit and contend {1548} that if we endeavor to do it, in this way, we will ruin more than we will build up, and we will do more harm than we will good. I am opposed to this section for these reasons, and I think there are no good reasons why it should be incorporated.

Mr. HOWARD. Mr. Chairman, I am opposed to the substitute offered by the gentleman from Davis, and one of my main reasons is this, our laws now provide, and I presume will continue to do so, that private property shall not be held for the debts and liabilities of corporations. If that is so, and this substitute was to be passed, four or five or six men, as the case might be, get together and conclude to go into certain classes of business of three or four different kinds, and they would incorporate under those several heads, the same men would incorporate three or four or five different incorporations, and all they would have to do to make money would be to borrow a lot of money for one particular corporation that they were interested in and they might invest money in the others to advance their interests. This particular corporation that they borrow the money for the use of would break up and go out of business, and whenever those parties they borrowed the money from would look to the assets, it is not there, and the private property that belongs to them in their corporations could not be taken. I don't believe it would be right to place our corporations in any such a condition as that, and I am opposed to it.

Mr. JAMES. Mr. Chairman, I want to say a few words regarding the amendment of Mr. Roberts. I will say to Mr. Roberts that I appreciate his motives, that I know that he is endeavoring to protect the people, he is working in that direction; but I do not believe he appreciates or realizes the impossibility of his amendment to cover that which he is endeavoring to do. On the other hand, I believe that it will produce just the contrary to what his efforts are intended for. Now, his amendment says that one corporation shall be engaged in one business solely, Now, what is the result? I want to call the gentleman's attention to what has occurred in our intermountain country under his provision, and of course It would occur under this just the same. Take for instance the milling and mining proposition of the Comstock. There the mines are under an incorporation. The milling is under a separate incorporation. The mining incorporation is controlled by the same men that control the milling corporation. Now, what is the result? They sell the stock in the mines to the public down to just a bare majority, so that they can remain in control of these mines. That stock goes out among the people. The stock in the milling corporation is not sold at all. That is all locked up. Now, what do they do? They go to work and they make a contract with themselves, between the two companies, and charge the men for milling the ore all there is in it. They take the whole of it, and now the result is the company that is controlling the mine through

their having two incorporations robs the stockholders in the mining corporation. Now, that is what my friend wants to obviate, I know, and it is what every man on this floor wants to obviate, but the movement he makes gives us no advantage at all over that condition of things. Take the Co-op. as an illustration. We will say for instance they wanted to do the same thing as these gentlemen do over on the Comstock. Now, they have the manufacture of boots and shoes and the manufacture of overalls and shirts, and they have a general merchandise. Now, supposing they have three incorporations, the managers of these three incorporations say, this is a pretty good scheme, we will hold the stock of the general merchandise, we will let the stock of the boot and shoe and the {1549} stocks of the others go out among the people, keeping barely control so that we will manage these things. They turn around and they sell material to make the same boots, overalls, etc., and charge such a price for these articles that there is nothing left in profits to any one of the three corporations, excepting the merchandise one. Now, don't you see that there is an imposition upon the public and you cannot cover it by the amendment offered by the gentleman from Davis? And I say, Mr. Chairman, that if I thought this amendment would in any way protect the public, that it would amount to anything more than an inconvenience, why, I would vote for it, but I am firmly convinced that it would only add inconvenience in the way of extra incorporations and extra meetings, and an extra expense and nothing at all accomplished.

Mr. SQUIRES. Mr. Chairman, I spoke upon this amendment when it was before the committee of the whole, night before last, and at that time I intended to call attention to something in the second section of this article, because I wanted an opinion from some of these legal gentlemen here as to its force in connection with this proposed amendment. I want to know before I vote upon this what force those words, “provisions of this Constitution,” may have upon this proposed amendment.

Mr. THURMAN. I understand that it means provisions of the Constitution relating to incorporations.

Mr. SQUIRES. Well, that would be this particular amendment among others?

Mr. THURMAN. Yes; anything we adopt.

Mr. SQUIRES. Would it then require that all the corporations now in existence would have to accept this provision and shall confine itself to one single line of business, no matter how it is. now incorporated, and how it is conducting its business? Now, it seems to me, that is an important question to consider in connection with this proposed amendment, and until that is cleared up I should certainly vote against the proposition as submitted by the gentleman from Davis.

Mr. BOWDLE. I think I asked that question the other evening. I had my own opinion about it, and it was answered by some one. I do not recollect. whether it was Mr. Varian or the chairman of the committee.

Mr. SQUIRES. Mr. Varian had gone home. He could not very well have answered it.

Mr. SQUIRES. Then I submit that we should have two different methods of doing corporate work in this State. One company would be allowed to transact three or four different kinds of business. Another company would be restricted to a single line of business. One corporation could deal in the sheep industry and in connection therewith could buy and sell wool. One company could engage in mining and milling and another company would be restricted simply to mining, and if they wanted to put up a mill on their property to mill their own ores, they must be at the trouble and expense of another incorporation. {1550} I believe it would be making an unfair distinction between the business interests of the coming State, and for that reason, if for no other, I should vote against it, and I do not believe in the principle of the proposition anyway.

Mr. KIMBALL (Salt Lake). Mr. Squires, do you not believe that the original section would have the same effect?

Mr. SQUIRES. I do not, because under the original provision any business which is named in the charter can be conducted, but no other business. A company incorporates for two or three different kinds of business. They can transact all of that business under their charter, but it must be specified in their charter.

Mr. MALONEY. Mr. Chairman, I do not think it needs the opinion of a lawyer to inform this Convention that no vested rights are interfered with or attempted to be interfered with, by the substitute proposed by the gentleman from Davis. All corporations now in existence can go on and transact their business authorized under their charter precisely as though this amendment had never been incorporated, in the event it is incorporated. Now, I want to say to you, gentlemen, that the object of this is to prevent, in the future, corporations doing these things. I want to say to the Convention that the Z. C. M. I. will not be interfered with; they can go on and do their general mercantile business, and do their manufacturing business, because the substitute offered by the gentleman from Davis does not apply to them. Corporations formed for mining and milling can go on and do their mining and milling as though this article had not been adopted. I will tell you what it does interfere with. Take, for instance, the Pullman charter; they incorporated there for the purpose of building Pullman cars; instead of confining themselves to their legitimate business, they founded and built a city; they establish waterworks, gasworks, and went into the real estate business generally.

Mr. SQUIRES. Would not they be prohibited from doing that under this section as presented by the committee?

Mr. JOLLEY. Mr. Chairman, I am not aware where the gentleman from Weber got his change of heart, being he is one of the sub-committee. I will state that I am not in favor of the substitute. I was up in the committee room and in the sub-committee on this article, and we talked the matter over_this single theme arrangement, and we felt as though it would curtail capital, that there were many institutions that have been established in this Territory for many years in the past that it would cripple, and that they were so small, yet they have branches that would not pay them to incorporate into two or more corporations. This matter was talked up, and I will state here, Mr. Chairman, that nothing was put in this article but what the sub-committee fully agreed upon. I was not there at the presentation to the committee in full, but I supposed that they had all agreed upon it and {1551} we discarded the one and accepted the other_section 11, as it now reads, as it was broadened; and it would encourage and would allow the present institutions to go on with their branches of business and not cripple them. I consider, Mr. Chairman and gentlemen of the committee, that we should legislate here for the benefit of the whole, for the benefit of the men of wealth, as well as those that have not got wealth. As was stated to-day here, by some gentlemen upon the floor, that the delegates of this Convention were not all wealthy men_they are not all wealthy men, but we should consider that that is most beneficial to both parties. Therefore, I trust that the substitute will not prevail. for it will work many hardships, and curtail the interests of the capitalists that we want to invest and to be encouraged in our Territory and in our future State.

Mr. RICHARDS. Mr. Chairman, I hope the motion to adopt this substitute will not prevail. I have not heard any good reason assigned why it should be adopted, and I think that a great many good reasons can be assigned why it should not be adopted. The section as it stands is sufficient protection against any harm that might result from silence in the Constitution on this subject. Why should not a corporation be organized to transact more than one kind of business? I have heard no good reason assigned for it. I do not believe that any good reason can be assigned why that should not be so. The proposition that is offered is an unusual one, and one that might result in a great deal of injury. Now, it has been said that the adoption of any article or provision in this Constitution cannot interfere with vested rights; that is true. But what are vested rights? That is the question. The gentleman from Weber, a member of the committee on corporations that reports this article, intimates that it would be a vested right to interfere in any way with the conducting of business as now organized. I am not so clear about that. It is true that if they had been incorporated under a law that did not permit amendment or provide that any modification could be made in the laws creating them or regulating them, it might be so, it might be an interference with that which might otherwise be regarded as a contract; but the supreme court of the United States has held that Congress may interfere with charters that have been granted and may change them in this Territory, and if Congress may do that, why may not the State do it, as a

State? And it seems to me that there would be a great danger in this provision in section 2 that has been referred to, that it might operate prejudicially on corporations that are now in existence. But, independent of that, whether that be so or not, it seems to me that there can be no good reason why this amendment should prevail. If the articles of incorporation set out the purposes for which the corporation shall be created, and it shall only be permitted to do such business as is specified in the articles, then the public are protected. They understand and comprehend at once what is expected of the corporation and they know what they are dealing with.

Mr. JAMES. Mr. Richards, you have observed in section 2 that it says in order to benefit by future legislation, they shall accept of the provisions of this Constitution. Would not that practically compel every corporation, or else they would be left in a position so they could not have the benefits of future legislation?

Mr. RICHARDS. Well, I will not express a positive opinion on that subject, because it is a question that I think even lawyers might differ upon, and I do not believe in off hand opinions; but I do believe this, gentlemen, that we are legislating here in the fundamental {1552} law, that we ought not to enact anything that is ambiguous and uncertain and that we do not know what it means; that is what I say, and the great objection that I have in this article is that it is so legislative to its character and not fundamental that the greater part of it has no place or ought to have no place in the Constitution of this State. The chairman of the committee will excuse me for speaking in this emphatic way. I say it with no disrespect to the committee, but it does seems to me that the committee has fallen into the error of placing into this article a great deal of matter that ought never to enter into the Constitution of the State, because it is not necessary. Now, I make no particular objection to the provision as it stands in the original article here in section 11. I do not believe that that is necessary, but still I do not object to it, because I do not see that it will cause any particular harm to let it remain there. It simply encumbers the Constitution with something that might be dispensed with, but there are provisions in this_

Mr. SQUIRES. Would not that section, as it is, be a certain sort of protection to the stockholders of a company who might not be interested in the management of it? They would know by that that no other business could be transacted except that authorized by the character_no speculation or gambling business.

Mr. RICHARDS. That would be, but for the fact that it is a rule of law that is absolutely inflexible that if they were silent the law would construe it to mean the same thing; that is to say, a corporation cannot in the very nature of things do legally anything more than is specified in the articles of incorporation. So that if we were entirely silent upon that question, the protection is absolute and complete upon that point. So this is simply a declaration of what the law is now.

Mr. SQUIRES. I understand, Mr. Maloney claims the Pullman Company has been doing this and doing it legally. They were chartered to build Pullman cars and they were building cities.

Mr. RICHARDS. I do not know what the charter of the Pullman Company is, but I undertake to say that if the Pullman Company was chartered for the whole purpose of manufacturing railroad cars and they undertook to build cities and do the other things suggested by the gentleman, as I

understood the company did do, it was acting ultra wires and could have been stopped from doing those things. The state could have interfered, the stock-holders could have interfered, and the matter could have been stopped; but we cannot in a constitution legislate in such a way as to prevent people from doing things that are unlawful and illegal. That is not authorized by law. That we cannot do. We can lay down some fundamental principles, and as I say, I find no fault with this section, because it is simply a declaration of law that exists independent of this.

The committee thereupon took a recess until 2 o'clock p. m.

AFTERNOON SESSION.

The committee re-assembled at 2 o'clock.

Mr. ROBERTS. Mr. Chairman, it is not my purpose to detain this committee in the consideration of this question, as I believe that the mind of the committee is made up as to the action it will take in regard to the substitute, and I am not about to launch a speech of any considerable length at least. But I do wish to say, sir, that in drawing this substitute I do desire if possible to present something to this Convention that would alleviate the prospective difficulties and evils that might grow up in our new State by reason of incorporated power. It is quite possible, sir, that the principle in this substitute is impracticable and may not reach the evil at which it is leveled, and {1553} I am almost in despair at the prospect of drafting anything that would be equal to the occasion of resisting the evils that grow out of corporate powers. And it is quite possible, sir, that we shall have to rest our case ultimately upon the spirit of the people, which I trust shall' be of that nature that will lead them never to sit quietly down while corporate power rivets collars upon their necks, and brands them for its own. Many years ago, when perhaps I was more impressionable than I am now, I read with burning interest the great debates that occurred in the British house of parliament on the trial of Lord Hastings, wherein inquiry was made into the proceedings of the East India Company, and I became satisfied then that if there was one thing which more threatened the liberties of a nation than another, it was the organization of just such companies as this, just such corporations, which could grow in dimensions until they could be compared only to some huge octopus with power to throw a tentacle over every possible resource of the country, crush out all competition, and enslave the people. I saw, during my reading of those interesting cases and arguments, the truth of the old adage that corporations have no bodies that you can kick, and they have no souls that you can tempt, and they are the most difficult things to contend with that ever confronted our civilization. My attention, however, sir, has been called to the last section of this article on corporations, and I believe that that will mitigate much of the evils that exist to-day in regard to corporate powers, in that it will prevent, if properly executed by the officers, and if proper laws shall be drafted in pursuance of its provisions by the Legislature, combines and trusts to control production and the prices thereof. I must confess that I did not discover all the virtues that are in that section, and this will make it easy for me to do what I intended to do before I got through, namely, withdraw the substitute that I offered for section 11, if my second will consent to that. Certainly, sir, it was not my intention to draft any measure or urge any measure upon the Convention that would look to the destruction or look to impairing small corporations that are engaged in the small manufacturing establishments. The only object that I had in view in drafting this section was to prevent great corporations with

millions and perhaps scores of millions behind their backs invading our Territory, laying a paralyzing hand upon the resources which, as I think, ought to be left for the people.

My friend from Ogden this morning called attention to the evils that accrue out of the corporation known as the Pullman manufacturing establishment, the evils that it brought upon the people of Illinois, the abuse of its powers, threatening for a time civil war in our land. Outwardy all was fair and beautiful, and yet, sir, when the blanket was lifted, and the inside workings of its operation could be observed, it was found to be like the gilded sepulcher, fair to the view but inwardly full of dead men's bones and rottenness. The tourist had been charmed with the prospects surrounding the workmen at Pullman, but upon a close investigation of its affairs, instead of being a benefit to the workingmen it was discovered that it was but an engine of oppression and held the fortunes of it semployes in its own hands. It was to prevent anything of this kind arising in our State that I was anxious that something of this kind as indicated in the substitute should be provided, not to interfere with small manufacturing establishments. And I must think that the construction placed upon what is one general line of business has been drawn altogether too narrow, as I take it in these debates; and yet, sir, I must confess that I have been convinced that {1554} this measure would be impracticable in reaching the objects for which it was intended, and therefore if the second to my motion does not object, I will withdraw the substitute.

Mr. THATCHER. Mr. Chairman, I would call the attention of the committee to section 1, that corporations may be formed under the general laws, but shall not be created by special acts. Now, section 11 might leave the construction that corporations should be formed in this section under special acts, and for that reason I would propose, after the word charter, in the third line, “as specified in its articles of incorporation.”

Mr. RICHARDS. Mr. Chairman, I think I comprehend the object of the gentleman's amendment, and if it were necessary I should concur with him; but the word charter, as used there, I think has a clear signification only of the means or article by which it was incorporated, whether that be by agreement of incorporation, or articles of incorporation. Whatever the article may be called, is the charter. That would be the legal interpretation of the term, I think. I do not think it would be held to mean a special act.

Mr. THATCHER. I am a little inclined to think that section 7 would have a doubtful construction, but inasmuch as special acts are prohibited in section 1, I think that this section should be so amended as to make it clear that no special act of the Legislature was necessary.

Mr. MALONEY. Would not the word “specified,” right after the word authorized, meet your amendment?

Mr. THATCHER. Not clearly, no, sir; I do not think it would. Of course, I am not particular on this, but I think it would save a good deal of trouble.

Mr. SQUIRES. Why not strike out the word charter and introduce “articles of incorporation?”

Mr. SQUIRES. I move, then, that it be so amended.

Mr. CANNON. Mr. Chairman, the object desired to be attained by Mr. Thatcher's motion, and also by Mr. Squires's, I think we all agree with exactly, but from my understanding of the interpretation placed upon the word charter by the legal gentlemen who have spoken_I think the word charter is broader than articles of incorporation. It might possibly embrace more. For that reason, I see no reason for the change.

Mr. EVANS (Weber). Mr. Chairman, it would seem to me better to leave “charter” in there, and add “articles of incorporation.” If an amendment would be in order I would make that as an amendment. Then, if the Legislature does grant a charter, such as they sometimes do_

Mr. JAMES. I think, Mr. Chairman, that will cure the dissatisfaction.

The amendment offered by Mr. Evans, of Weber, was agreed to.

Mr. RYAN. Mr. Chairman, I think I realize the object of the committee in introducing that section, but I do not see that it accomplishes anything. I move that the entire section be stricken out.

Mr. ROBERTS. I wish to ask the chairman of this committee if there is any other part of this article that provides that the purposes for which the corporation is organized shall be specified?

Mr. JAMES. No, sir; not that I know of.

Mr. ROBERTS. Then, Mr. Chairman, I am most heartily opposed to striking this section out, because, as was developed in the debate here this morning, in the argument of the gentleman from Weber (Mr. Maloney), it appeared that the great corporation at Pullman was incorporated to do one thing, but went outside of things specified in its charter and engaged in other enterprises. I believe, sir, that whatever else we shall {1555} do in regard to corporations, we at least ought to insist that they shall specify the business that they are going to engage in, and that they ought to be confined within those specifications, and believing that this would be some little protection to the public at least in the way of announcing what business this corporation is going to engage in, and in order that we might know something about its limits, it should expressly say what its business should be, and it ought to be beconfined to just what it has expressed in its charter, and not give them carte blanche to engage in everything under heaven, without giving the public notice that they are going to do it. You leave it now so that a corporation can engage in any number of lines or pursuits; at least let us have it understood that they can only engage in those pursuits that they specify in their charters. For that reason I shall object to striking out this section.

Mr. RYAN. Mr. Chairman, I think the time is coming when corporate power should be restrained, and I am in favor of that. I am in line with that and I was in favor of Mr. Roberts's

amendment as being the best of the two. However, I do not think that section 11 will accomplish any good or accomplish the end for which it was aimed. I think if we ever restrain corporate powers, it has got to be in other directions, and possibly the best way would be to scrutinize their first charter or have a power or a different source from which they should emanate. Any one can secure a charter by paying a few dollars and specifying the purpose for which they are organized, and I do not see as section 11 accomplishes anything, and, therefore, I was willing to see it stricken out.

Mr. JAMES. Mr. Chairman, this section took up a great deal of time in the committee. It took up more time, not only in the committee, but in seeking information from sources that the committeemen felt were safe to advise with, and I will say to you, gentlemen, that four of the most eminent attorneys in this city approved of that section, as it is in that article, and three of them are corporation attorneys. They said that we should have something that should limit the corporations from extending all over the world and doing anything they pleased. We should say that they should not go into business that they did not expressly set forth in their charter.

The motion was rejected.

Sections 12 and 13 were read.

Mr. JAMES. Mr. Chairman, I wish to strike out the words “tonnage and cars,” and add in lieu thereof the words “and freight.” The reason I ask to strike out the word cars is because I have learned that in the interchange between railroads and cars an injury might be done one road if it had to carry those cars when it had its own cars in which to carry the freight.

The amendment was agreed to.

Mr. THATCHER. Mr. Chairman, I would like to call the attention of the committee to line 5, where it provides for carrying passengers without delay. I move to insert the word “unnecessary,” between the words “without” and “delay.”

Mr. RICHARDS. I desire tb offer an amendment to Mr. Thatcher's amendment; transpose “discrimination,” and place it after the word “without,” so that it will read this way, “without discrimination or unnecessary delay.”

Mr. THATCHER. I will accept that.

The amendment was agreed to.

Section 14 was read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word transportation, in the fifth line, the words, “under similar circumstances and conditions.”

Mr. JAMES. Won't you accept the same amendment then, in line 13, so that it will be consistent

within itself?
Mr. VAN HORNE. Mr. Chairman, I {1556} move a substitute for section 14, which I have drafted in accordance with the inter-state commerce law, as follows:

No railroad or other transportation company or common carrier shall discriminate in the transportation of persons or property between persons or places, or in the facilities for transportation, or any charges for like service in transporting like kinds of property under similar circumstances and conditions.

Mr. RICHARDS. That is exactly the point designed to be covered by the amendment I offered.

Mr. VAN HORNE. I understood that it was designed to be covered by that, but I think that the substitute covers it perhaps a little more clearly than the amendment would. In like instances a man that had a hundred bushels of wheat to ship where it would only make part of a carload could very properly be charged on account of the greater cost of handling the additional rate for shipping that wheat to the same point that a man would be charged who shipped a full carload, or a full trainload. In like manner the owner of a mine who attempted to ship two tons of ore to have it separated and kept separate from other ores shipped in the same car, would impose upon the railroad company a greater duty of carrying his property from intermixture with others than would be imposed upon the railroad company in case he shipped the full car-load of ore, and this amendment covers that distinction between quantity and class.

Mr. JAMES. Mr. Chairman, I want to say a word or two to this Convention as to why this section was written and placed in this article, and since Mr. Richards has amended it as he has, I believe it covers the ground. Now, I will say the reason why that section was written in the form that it is in is this: Information came to this committee that it cost one hundred dollars more a car to ship a carload of freight if it contained twenty tons, from Omaha to Eureka than it did from Omaha to Park City, which was a distance of over one hundred and fifty miles farther to haul it. Now, gentlemen, I call your attention to that condition of things and ask you if it is true, and I think it is

true, because I got it from reliable {1557} sources, if we should not do something to regulate conditions of that kind? Then, I call your attention to the fact again, as another reason why that section was written in the form it is in, is because the railroad company sees fit to make Eureka City a common point in shipping out, but not a common point in shipping in. Now, gentlemen, it is a very queer thing when it is a downhill haul from Eureka City to the valley below, that it is a common point out, and a less rate is charged for freight out of that town than to haul it into it, when it is an uphill haul to haul it in. Now, I want to say to you, since Mr. Richards has amended this in the form it is in, it covers the whole ground. The reason where it was weak before is just what Mr. Van Horne has raised on the floor, that you might charge as much for small quantities as you could for large quantities. The amendment of Mr. Richards obviates that point. Now, Mr. Van Horne's section is one that I have not had time to give thought to. The section for the purpose that it was written has had due consideration and given a great deal of time and thought, and I believe as amended now, it is what we need.

Mr. VAN HORNE. I just want to call attention to one fact, the prohibition there as to discrimination in places covers the very point that was brought in by the gentleman speaking for the report as amended or proposed to be amended.

Mr. JAMES. Does your section cover the ground to hauling in and going out_that discrimination, as it is going on now?

Mr. VAN HORNE. I will ask the gentleman if he does not think that under similar circumstances and conditions does not fully cover that?

Mr. JAMES. I ask you if your section covers that?

Mr. VAN HORNE. I think so.

Mr. RICKS. Mr. Chairman, I hope the amendment will prevail, for the reason that I think it will cover exactly the ground covered in the original, and I do not believe the original covers the ground Mr. James thinks it does, that is covered in the inter-state commerce law, and I very much question if we can ever legislate in this State to cover the objections he desires to cover_the ore or anything else coming from other stations that must come under congressional law, as it does at the present time, and I think the amendment of Mr. Van Horne covers every point that is necessary to cover.

The question being taken on the adoption of the substitute proposed by Mr. Van Horne, the committee divided and by a vote of 50 ayes (noes not counted), the substitute was adopted.

Mr. CANNON. Mr. Chairman, I will move to amend by inserting “quantity” after “kind,” and make it read, “kind and quantity.”

Mr. RYAN. Mr. Chairman, I hope the amendment will not prevail. I do not think we should limit that as to quantity. The circumstances and conditions will limit that enough. Railroad companies are in the habit of discriminating too much in the interest of large shippers_powerful

corporations, and that only intensifies that evil. I hope it won't prevail.

The amendment was rejected.

Mr. ROBERTS. Mr. Chairman, I move that section 14 be stricken out. I find that section 13 provides that all railroad and other transportation companies are declared to be common carriers and subject to legislative control. Now, sir, the substitute that the committee has adopted, introduced by Mr. Van Horne, seems to be so uncertain as to what points it does cover and what it does not cover, that I doubt the propriety of adopting a section about which the Convention seems to have so much doubt, or to be in so much uncertainty in regard to, and it seems to me, sir, that all these matters enumerated in the original section and also in the {1558} substitute offered by Mr. Van Horne, may be properly left to the Legislature, and those are my reasons for moving to strike out the entire section.

Mr. BOWDLE. Mr. Chairman, I do not know; I might eventually come to the same conclusion, but not having the substitute a long time to think about it particularly, it looked to me like it was all right. I came to the conclusion that I would let it go to the third reading and then we will have the whole matter before us and we will know better_at least I feel I will know better what I want to do in that regard, and I don't feel like taking action on it now.

Mr. RICHARDS. Mr. Chairman, I am in favor of striking out. I am fully in sympathy with the idea that railroad companies should be required to do all that is prescribed in this section. I want that understood to start with, and perhaps more, and there is where the danger lies in this section, as I view it; that is to say, by section 13, all railroad companies and other transportation companies are declared to be common carriers subject to legislative control, and all railroad companies shall receive and transport each other's passengers and freight without discrimination. Now, that is provided for in section 13. Now, I believe that the Legislature ought to have full power over this subject, and when we commence to enumerate in section 14, certain things that shall be done, there is danger that when the courts come to construe it, they will say that the Legislature is limited in that matter to those things that are enumerated in the Constitution, and if we leave this section out, with section 13 standing as it is, it gives the Legislature full power over this subject. We can legislate upon it from time to time as the exigencies of the case may require, and I believe it would be very much better for the Constitution and very much better for the people, and would carry out the wishes and intention of this Convention to leave that section out.

Mr. VAN HORNE. Mr. Chairman, the intention of offering the substitute was directly in line with the purpose of not specializing in this Constitution the methods of discrimination, but leaving it general, under the construction of the inter-state commerce act and the courts of the United States, of the four classes of discrimination that were possible. If there is to be no section corresponding to section 14, I am thoroughly of the opinion that sections 1 and 13_I believe it is, cover the whole question and leave the Legislature the full power to regulate, control, limit, and restrict the action of corporations. Section 14, as introduced by the committee, strikes me as being dangerous in the line that it specializes too much. The substitute specializes less, in that it covers only the four species of discrimination that have been passed upon under the inter-state commerce act, and it has been decided that those four classes cover all kinds of discrimination. If

there is to be no section corresponding to section 14, I shall support the motion to strike out.

Mr. JAMES. Mr. Chairman, I feel a good deal like Mr. Roberts felt about this thing at the present time, that you had just about as well strike this out, but at the same time, Mr. Chairman, as if there was a very serious mistake being made here. I do not know why gentlemen are talking so much about legislation and about the seriousness of our trying to regulate something. Now, if any other gentleman can show me in this section anything that would create a hardship, that would injure a corporation, in any way in the world, I would say, for heaven's sake let us amend it and let us strike it out, let us get rid of it; but, Mr. Chairman, there is more that can be said regarding this thing. You observe that they were very careful to get out that along where it says, hauling from and to. Now, gentlemen {1559} of this Convention, why should it be? Why should it be that a ton of freight or a carload of freight should cost the pe