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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.

Absentees_Hart, Kearns, Francis, Kerr, Larsen, C. P., Lewis, Low, of Cache, Lowe, Win., Peters and Pierce.

Excused_Keith, Eldredge, Moritz, Buys, Gibbs and Ryan.

Prayer was offered by Delegate Heybourne, of Iron.

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

The Convention then resolved itself into committee of the whole, with Mr. Evans, of Weber, in the chair, and resumed the consideration of the article entitled public buildings and State institutions.

The CHAIRMAN. The chair under stands {1628} that we got down to the fifth subdivision of section 6.

Mr. KIMBALL (Weber). Mr. Chairman, I move to insert in the blank in the fifth subdivision, after the words, “institution for the deaf, dumb, and blind,” the words, “at the city of Ogden, in the county of Weber.”

Mr. RICKS. Mr. Chairman, I move that we strike out lines 16, 17 and 18 of this section.

Mr. CHRISTIANSEN. Mr. Chairman, I present the same amendment here this morning that I offered Saturday evening, when we adjourned, that was to strike out all after “blind,” and insert “Sanpete County, the site to be selected by the Legislature.”

Mr. KIMBALL (Weber). Mr. Chairman, I think that it is to the best interests of the State institutions that the location ought to be made permanently now, and I think that for this reason: In view of the fact that the present building occupied by the deaf, dumb, and blind has been transferred by this Constitution to the university, now, I think. for the benefit of that institution, as well as for the benefit of the pupils that are taught in it, the institution ought to be located permanently, and it seems to me that Ogden City offers more inducements, and has more facilities than any place in the Territory outside of Salt Lake City. So far as the institution itself is concerned, the Territory now owns buildings in Ogden City, amply sufficient to accommodate all of the pupils for years to come and at very little expense. The next Legislature can so arrange those public buildings as to accommodate this institution. For another reason, it seems to me that it ought to be located permanently, it is a central location, accessible, not only to all parts of this Territory, but all parts of the surrounding states and territories, and in view of the fact that neither

Montana nor Idaho has institutions of the character_if Logan had a central location such as Ogden is, there would he a consider.. able number of outside students. I submit, Mr. Chairman, that my amendment should be adopted.

Mr. JAMES. Do I understand the proposition made by Mr. Kiesel and other delegates from Ogden is still held good?

Mr. KIMBALL (Weber). I have no doubt, sir, but that will be held good. My view was that the Legislature would take the reform school building for this institution, and the other buildings for a reform school.

Mr. RICKS. Mr. Chairman, I believe it would be a mistake for this Convention to locate permanently either the reform school or the school for the deaf, dumb, and blind, for the reason that we have not yet definitely settled in our minds where these institutions ought to be located. It was a question at the last Legislature whether the reform school ought to be continued or not, and it is a growing sentiment throughout the Territory to-day that the school ought to be abandoned, because of its expense to the State. Now, Mr. Chairman, while the arguments of Mr. Kimball may apply all right to the deaf and dumb school, it seems to me that it would be a mistake for this Convention to locate that school. We do not know, sir, but what in the near future we may want those buildings and the grounds at Ogden, for the State normal school. The state normal school, as I understand it, is not yet permanently located, and I believe it would be for the best interests of the State to strike out the third subdivision, and also the fifth, and leave the matter of reform school, the school for the blind, and also the state normal school, for future action of the Legislature.

The amendment of Mr. Christiansen was rejected.

The amendment of Mr. Kimball, of Weber, was rejected.
{1629 - SCHEDULE}
The motion of Mr. Ricks was agreed to.

Mr. RICKS. Mr. Chairman, I move you, sir, that we strike out lines 12 and 13, of the third subdivision.

Mr. IV INS. I would like to hear the gentleman's reasons for asking that this section be stricken out. We may carry this thing to an extreme, if we commence to follow on in the line proposed.

Mr. HEYBOURNE. Mr. Chairman, I am of the opinion that this is somewhat of a sweeping motion. I understand that institution has quite a record, costing the Territory considerable. To go now to work and strike this matter out, I think it is a little unusual and wants some explanation. Therefore, I shall oppose the motion unless the gentleman can furnish some good reason for his action.

Mr. RICKS. Mr. Chairman, my reasons are, as I just stated, that the reform school is not a permanent institution of the State; that there is a growing sentiment throughout the State that it

ought to be abolished because of its expense to the State. Now, if we strike that out, it does not discontinue the reform school. It remains just as it is at the present time, located at Ogden, subject to be removed or abolished, or some change made, as contemplated by Mr. Kimball, and the Legislature may desire, and I believe, sir, it is for the best interests of the State to not locate that in the Constitution, but leave it wholly to the Legislature.

Mr. JAMES. Mr. Chairman, I cannot realize how it can be that a growing sentiment can be found in the Territory of Utah to abolish our reform school. If there is a necessity, to my mind, it is the reform school. Why, Mr. Chairman, just think of these little urchins that are without fathers or mothers    

Mr. BUTTON. Mr. James, Mr. Ricks will withdraw that and let it come up on the third reading.

Mr. RICKS. I will withdraw it, yes.

Mr. BUTTON. Mr. Chairman, I move that the article as amended be passed and referred to the Conventon for third reading.

The motion was agreed to.

The committee of the whole then proceeded to the consideration of the article entitled schedule.

Sections 1, 2, 3 and 4 were read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word “accordingly,” in the twelfth line of section 4, the following words:

All taxes assessed or levied under the laws of the Territory of Utah shall continue taxes assessed and levied in the State of Utah, and their validity shall be unaffected by the change to state hood.

I think there is an omission to provide for that.

The CHAIRMAN. What is the use of the words “people of the United States in the Territory of Utah?”

Mr. KIMBALL (Weber). Some years ago all recognizances ran to the people of the United States in the Territory of Utah, and all criminal recognizances and judgments in favor of the Territory were taken in that name, that is why, I suppose, that language is inserted here. It was discontinued in 1884. In 1884, the Legislature changed the style of process to the people of the Territory of Utah_or 1878, originally, I think.

The amendment of Mr. Kimball, of Weber, was agreed to.

Mr. RICHARDS. Certainly not, I think the phraseology would be better. It was written in haste.

The CHAIRMAN. I would like to call Mr. Richards's attention to the fact that the schedule in another place continues all the laws of Utah in force under the State government. Would not that cover it?

Mr. RICHARDS. I am afraid not. This section, you will observe, deals particularly with the revenues, property, etc. It seems to me that in order to make that absolutely safe we ought to include taxes.

Mr. RICKS. I would like to ask Mr. Richards if he would insert, “taxes” right after “fines,” in the third section, if that would not answer that same purpose?

Mr. RICHARDS. I think not; I do not think it is broad enough to meet the question.

Mr. EICHNOR. Mr. Richards, would not your amendment be covered by the word “revenue,” in line 13, and the provision in another section that all the laws of the Territory of Utah would be in force?

Mr. RICHARDS. I think not. In my view the taxes assessed are not revenue until collected. I do not think that is covered by anything in the schedule, or else I would not have suggested it. This section, as I remarked before, is an enumeration of the various things that are to be preserved to the State, and I think that it would be dangerous to omit any thing that is desired to be preserved.

Mr. RICKS. Mr. Chairman, Wyoming, Washington, South Dakota, which have recently formed constitutions, have nothing in the constitutions that cover the amendment made by the gentleman. I believe that the word revenue there, taken in connection with the second section, will cover the ground.

Mr. GOODWIN. I would like to ask Mr. Richards if the words “assessed taxes” would not cover everything, put after the word “and,” at the end of line 12?

Mr. RICHARDS. Possibly it might, I am not sure. Of course, in framing this amendment, I desire to say that I prepared it so that there would be, as I thought, no possibility of mistaking the meaning of it, and it seems to me that any section of the importance of this we should be careful to leave it unambiguous. If there is any sort of doubt about the necessity of this amendment, the amendment ought to be adopted, because this is exactly the reverse of the usual effect of the provisions we are putting in the Constitution. Ordinarily the provisions that we are putting here are restrictive of the powers of government, but this provision is just the reverse of that, it is preservative. This section is for the expressed purpose, not of limiting, but of preserving to the State all that belongs to it, and if there is any doubt about the matter, the doubt should be solved in favor of making it explicit and full. Therefore, I think the amendment is necessary, or I would

no thane proposed it.

Mr. HAMMOND. May I ask Judge Richards a question? What, sir, in your opinion, would be the effect, if this amendment of yours should not prevail? Could we not assess and collect taxes? Would that be the end of taxing the people? If so, I would support it.

Mr. RICHARDS. The gentleman from San Juan does not apprehend the purpose of the amendment.

Mr. HAMMOND. No, I do not apprehend it.

Mr. RICHARDS. It is not that I apprehend there would be no power in the State to assess, but there might be taxes assessed under the territorial form of government, which were not yet collected at the time the State government takes effect, and it is to preserve {1631} those taxes and allow of their collection.

Mr. HAMMOND. I am in favor of taxing every time. If we could not collect it we ought to.

Mr. GOODWIN. Mr. Chairman, I move as an amendment that the words “and assessed taxes” be inserted after the word “accordingly.”

The amendment of Mr. Goodwin was agreed to.

The amendment of Mr. Richards was rejected.

Section 5 was read.

Mr. RICHARDS. Mr. Chairman, I move to insert after the word “State,” in line 6, the following words: “And in the court having jurisdiction thereof under this Constitution.”

Mr. RICKS. Do not you think that that is fully covered in section 6?

Mr. RICHARDS. I offer this amendment for the purpose of offering a substitute for section 6. I think section 6 is not well constructed, and I think I can offer a substitute much shorter for the section. I have no objection to reading it. I shall offer the following as a substitute for section 6:
All actions and proceedings, which may be pending in any of the courts of the Territory of Utah at the time of the change from a territorial to a state government, may be continued and transferred to the State court or courts having jurisdiction of the subject matter thereof under this Constitution.

The amendment of Mr. Richards to section 5 was agreed to.

Section 6 was read.

Mr. RICHARDS. I desire to submit the substitute just read for that section.

Mr. RICHARDS. I would like to ask the gentleman a question. Omitting the last three words, “under this Constitution,” which ought not to be in the section, and I, therefore, ask the chairman to strike them out_they were not there as originally written_I ask Mr. {1632} Varian why this section would not cover the ground.

The CHAIRMAN. I suggest if that word “may” should not be “shall?”

Mr. RICHARDS. No objection to making the change.

Mr. VARIAN. I call attention of the gentleman to the fact that there are different classes of cases under the federal judiciary act, which may be transferred, and for different reasons. In certain cases there may be transfers upon the ground of local prejudice, and the moving cause of transfer is an affidavit. In others it is the citizenship of the party. In others, it is where claims are made upon grants of land, from different states, and so on,The only exclusive jurisdiction of the United States courts is that of criminal cases arising under the federal Constitution. Now, what we want is to draw this thing with particularity, not necessarily that they should be transferred, but, if in accordance with the act of Congress, within a certain time after the adoption of this Constitution, any party who would have been entitled to have it transferred, if at the time they were commenced there was a State government here, they do so. I would not absolutely put a fiat in there that they should be transferred, because that would conflict again with the congressional act under the Constitution of the United States. You will see that it requires some degree of detail and particularity. I had hoped to have been able to put my ideas in more specific form this

morning, but I was waiting on these other gentlemen.

Mr. BUTTON. Mr. Chairman, I was going to ask if we could not pass this section and let the gentlemen have their amendments printed in the minutes tomorrow?

Mr. VARIAN. It could come up, if Mr. Richards did not object, on the third reading. There is nothing in this except to get it exactly right.

Mr. RICHARDS. That is all, as far as I am concerned; it makes no difference whether the consideration is postponed and we take it up after lunch in the committee, or whether we go on and act on the substitute. I was going to remark that the remarks of my friend from Salt Lake have given me considerable confidence in the section I have proposed. I believed it was about right before, and certainly he has not pointed out any weakness in the section. I ask to have this section submitted as a substitute.

The CHAIRMAN. The chair is somewhat delicate about making this statement, but it is firmly of opinion that we ought to continue this until third reading. It is very important and it ought to be considered very carefully.

Mr. RICHARDS. If the gentlemen desire to have me withdraw this and present it on the third reading, I am willing to do it.

Section 7 was read.

Mr. GOODWIN. Mr. Chairman, I suppose this is all right, but I do not understand it. I arise for information. The sentence beginning in the middle of line 15_are the probate judges to re main in office after the district judges are elected and qualified?

The CHAIRMAN. According to this schedule, they are. They are to hold office until the first day of January, 1896. I suppose the idea of the committee was to give ample time to have the matters in the probate court transferred to the district court.

Mr. GOODWIN. The judges will not take their office until next January?

The CHAIRMAN. Yes; that is right.

Mr. RICKS. Mr. Chairman, I think there is a provision somewhere in the Constitution that provides that all officers elected under this Constitution shall take their offices immediately upon the issuing of the proclamation of the President.

The CHAIRMAN. The chair can answer Mr. Goodwin's question in this way, if it will be permitted: That {1633} when the President proclaims Utah a State, the Constitution immediately goes into effect, and the jurisdiction then of the probate courts would be given to the district courts, but the idea is to continue that thing until the first day of January, 1896.

The CHAIRMAN. The chair would like to make a suggestion, that after the word “of” in line 8, the word “this” be inserted, and the words, “the above” stricken out.

Mr. BOWDLE. Mr. Chairman, that is just the motion I was going to make, because that would refer to the other section. Therefore, I move you that the word “the” and “above” be stricken out, and the word “this” be inserted.

The amendment was agreed to.

Section 9 was read.

Mr. RICKS. Mr. Chairman, I have an amendment to offer to that section. In line 3, after the word “held,” strike out the word “and” and insert the following, “on the Tuesday next after the first Monday in November,1895, and shall be.” The reason for that is this: I notice that we have not anywhere in the schedule specified the date of the election of State officers, while we have set the date for the adoption of the Constitution, and it is thought better to name the day on which the election of State officers should be held, as well as the adoption of the Constitution.

Mr. MALONEY. Mr. Chairman, I have an amendment I wish to make, to strike out the word “and,” in line 13, and in lieu thereof insert the following: “All electors qualified to vote under this Constitution may vote.”

The CHAIRMAN. We will pass on the amendment of Mr. Ricks, as it is a different part of the section.

Mr. CREER. I will ask the chairman of the committee if it is necessary_it is specifically provided for in section 4 of the Enabling Act, that there should be an election on that date for the adoption of the Constitution.

Mr. ANDERSON. This is for State officers.

The amendment of Mr. Ricks was agreed to.

Mr. GOODWIN. Mr. Chairman, I want to offer an amendment in line 12, after the word “election,” to add “and are qualified voters,” because there might be a great many citizens 21 years of age who would not be registered at that date or who might have been convicted of some crime and therefore not qualified to vote.

Mr. RICHARDS. Mr. Chairman, I move an amendment to insert after the word “election” the following words, “and all persons who are qualified to vote at elections held under this Constitution after its adoption.” I think that is necessary under the Enabling Act.

Mr. VARIAN. Mr. Chairman, I submit that it is not germane to the other amendment.

The amendment of Mr. Goodwin was agreed, to.

The CHAIRMAN. Mr. Maloney offers the following amendment to section 9: After the word “and,” in line 13, insert the following: “All electors qualified to vote under this Constitution may vote.”

Mr. RICHARDS. Mr. Chairman, I think this amendment is all right as far as it goes, but I do not think it goes far enough. I think that under the law all electors of the proposed State have the right to vote for this Constitution, and if they do not vote for or against it_in other words, if it is not submitted to all the electors of the proposed State, it will not be a valid submission; that is my contention, and hence, no matter how many votes may be cast for it, the Constitution would not be adopted and the State would not be admitted. Now, I know that this view was denominated an absurdity by distinguished {1634} gentlemen on the floor of this Convention at an earlier day in the session, when their attention was called to the matter, but it does not matter if that suggestion was made, it is a very serious question, gentlemen, that confronts us here this morning, and it is a question that no man on the floor of this Convention, and no member of this committee, can afford to allow his personal feelings and prejudices to control his judgment hi relation to. I submit that if we make a mistake in this matter and do not submit this Constitution to the people who have a right to vote upon it and it fails for that reason, a grave responsibility will rest upon the members of this Convention. Now, I propose an additional amendment to the one which I have already suggested to be added to the end of this section; that all the votes given by female voters for or against this Constitution shall be deposited by election officers in a separate box and canvassed separately and so certified by the commission.

Now, my purpose for offering these amendments is this, if it be true_and I stand not here alone advocating this view of the matter; I have in my pocket a communication addressed to this Convention that would have been presented if I had been so fortunate as to get here this morning before you went into committee of the whole, addressed to the president and members of this Convention, signed by Judge J. G. Sutherland, Charles C. Dey, John A. Marshall, George Sutherland, H. P. Henderson, and in addition to those names, many other distinguished members of the bar of this Territory, entertain the same view, that these people have a right to vote on this Constitution, either for it or against it, and any submission of the Constitution to the people that did not include and carry with it the right of these people to vote, would not be a legal submission. Now, as I say, I desire to meet the views of all parties I desire to be cautious in this matter, and for that reason, while I make the proposition that all persons who are entitled to vote under this Constitution at subsequent elections, shall vote for or against the Constitution, and for the State officers, I also would provide that the female votes shall be taken separately so that no harm can result from taking a vote, and it may be the means of preventing the defeat of statehood.

Mr. SQUIRES. Will the gentleman read the letter that he gave the signatures to?

Mr. RICHARDS. Inasmuch as this is a public matter, I will read it cheerfully.

Mr. GOODWIN. At the same time, may I ask the gentleman what the object is of having a separate vote in this case?

Mr. RICHARDS. Simply this, that if the contention of the gentlemen who say that this is an absurdity, and that these people are not entitled to vote, should be correct, then the vote ought to be separate or ought not to be taken at all.

Mr. GOODWIN. Who is to determine that?

Mr. RICHARDS. That is a matter that the courts will determine, of course. This Convention cannot determine it, no matter what view we take. Our decision on this matter is not final: We are not the arbiters. We cannot tell who are the qualified voters here, and have our decision final. Therefore, let us proceed in such a way that there can be no question in regard to this matter. If the vote be taken and their votes are not necessary or are improperly cast, it is not necessary to count them, or at least if the Constitution should be adopted without the vote, there would be no question as to its adoption. If the Constitution was not adopted without the female vote, then the question could be {1635} tested as to whether or not they were proper electors, and it could be thereby determined whether or not the State should be admitted. I will read what these gentlemen say on this subject:

To the President and Members of the Constitutional Convention:

The undersigned, members of the legal profession, having a common interest with other citizens of Utah, not only in the formation of a good Constitution, but in a regular submission of it for adoption by the people, and observing that there is considerable diversity of opinion on the question whether the persons who may exercise the elective franchise under this Constitution, if adopted, may vote at the election next November for its ratification or rejection, we offer the following suggestions on that subject: Section 4 of the Enabling Act fixes the time for that election and contains this language, as to voters: “The qualified voters of said proposed State shall vote directly for or against the proposed Constitution and for or against any provision separately submitted.” Section 2 also contains a provision on the same subject in these words: “Persons possessing the qualifications entitling them to vote for delegates under this act, shall be entitled to vote on the ratification or rejection of the Constitution.” They are “all male citizens of the United States over the age of 21 years who have resided in this Territory for one year next prior to such election.” It is supposed by some that the persons thus mentioned in section 2 are the only persons entitled to vote for or against the Constitution, on the maxim that the mention of one person or class is an exclusion of others. The maxim is sound and applicable, for the right to vote at this election must be granted and the right can be exercised only by those to whom it is granted. The mention of those who may vote need not be in one section exclusively. Particular persons may be mentioned in one section and others in another, section and the maxim will cover the accumulative enumeration, and only those not mentioned in either section will be excluded. Does section 4 profess to confer the right to vote, and by a different and possibly more comprehensive description than that contained in section 2? We think it does. The qualified voters of the proposed State are manifestly those who will be qualified voters when the

proposed State becomes a State, those who possess the qualifications that the Constitution of the proposed State requires. The persons declared entitled to vote in section 2 are not declared in that section to be qualified voters of the proposed State, and in our judgment the Constitution might be so framed that no male citizen only 21 years of age could vote, so that no citizen who has not resided in Utah longer than one year could vote.

On the other hand, the Constitution may so define the qualification of voters that they may exercise the right at and over eighteen years of age, and after six months' residence. If so, it may define the right in a manner to make no distinction between the sexes. The qualified voters of the proposed State, according to the requirements of the Constitution, including the persons mentioned in section 2, whether they possess all the constitutional qualifications or not, would seem plainly to be the persons to whom the Constitution must be submitted. In other words, if women are guaranteed in the Constitution the right to vote, they have the right to vote on the ratification or rejection of the Constitution. It has been suggested that the expression “qualified voters of the proposed State,” means the voters within the boundaries of Utah, and has no force to require anything, but being voters within that area. Doubtless it requires residence within that area, for it requires them to be qualified voters. To be such, they must have all the qualifications enumerated in the Constitution_It should be borne in mind that constitutions generally prescribe the qualification of the persons to whom the question of their adoption is submitted; those who will be qualified to vote after the adoption of a constitution may fitly be trusted to decide whether it shall be adopted. The submission of the Constitution to the qualified voters of the proposed State follows the American practice, is strikingly consistent with the other features of the Enabling Act, with providing for the election of the first State officers at the very election at which the adoption of the Constitution is to be decided.

Signed,    

J. G. SUTHERLAND,

CHARLES C. DRY,

JOHN A. MARSHALL,

GEORGE SUTHERLAND,

H. P. HENDERSON.

Mr. BOWDLE. I would like to ask Mr. Richards a question. Was this article prepared by those gentlemen?

Mr. RICHARDS. I have no knowledge by whom it was prepared. It was handed to me by Judge Sutherland. Perhaps he can furnish you the information with regard to its preparation.
{1636}
Mr. SQUIRES. How many signatures are there to that letter?

Mr. RICHARDS. I read the signatures; five of them.

Mr. SQUIRES. Is that all?

Mr. RICHARDS. Five is all.

Mr. SQUIRES. I understood you to say a large number of other members of the bar.

Mr. SQUIRES. What is the political complexion of the signers of that?

Mr. RICHARDS. I have not considered that. I will look at them and see.

Mr. SQUIRES. I would like to inquire whether they are all democrats?

Mr. RICHARDS. I think George Sutherland is an orthodox republican. He was proposed as a candidate for delegate to Congress, I believe, by the republican party at one time.

Mr. GOODWIN. I want to ask Mr. Richards a question. That is, would this be carrying out the will of Congress in conformity with this Enabling Act?

Mr. RICHARDS. I think that Congress intended that the women should vote, provided that the Constitution should provide that they should have the franchise. If I did not, I certainly should not propose it.

Mr. EICHNOR. Have you any precedents in the United States where the state has been admitted that voters that were enfranchised, so to speak, under that constitution, that they could vote on the adoption of the constitution?

Mr. RICHARDS. I do not know that I can refer to any particular instance at the present time, but if I understand the gentleman's question, this proposition is in consonance with the uniform practice in all the states. I understand it to have been the uniform practice for the voters of the proposed state to vote on the constitution. In other words, all those who would have the right to vote under the constitution or in the state after the constitution was adopted and the state government organized, have a right to vote on the constitution as to its adoption. That is my understanding. I do not think that you will find an exception to that. If there is one, I am not aware of it.

Mr. BUTTON. Section 2 says, “all male citizens.” Do you think that if the Congress of the United States was going to allow all the people of the Territory to vote, they would have said “male citizens,” or would not they have said “the citizens of the Territory?”

Mr. RICHARDS. That relates to the qualification of those who shall vote for the delegates to this Convention.

Mr. BUTTON. That is very true. Later, it says, that those qualified to vote for delegates shall he qualified to vote on the adoption of the Constitution.

Mr. RICHARDS. That is right, but it does not say that no others should be entitled to vote, and in the fourth section it expressly says that all the electors of the proposed State shall vote.

Mr. RICHARDS. I will answer you in the language of the Enabling Act, section 4.

Mr. EICHNOR. If you answer my question the way I put it, I think I can get a precedent. Could they have voted on the adoption or the rejection of the Constitution if the question of woman's suffrage could have been submitted as a separate article?

Mr. RICHARDS. This makes no distinction. This section says that the qualified voters of the proposed State {1637} shall vote directly for or against the proposed Constitution, and for or against any provision separately submitted. Certainly nothing could have been more explicit than the language of the act itself.

Mr. BOWDLE. When do you understand that the women, if this Constitution should carry, would be qualified voters? Would it be before that election or after?

Mr. RICHARDS. I understand that they are qualified voters to vote on the acceptance or rejection of the Constitution, and that they are qualified voters to vote at all State elections if the Constitution should be adopted. That is my understanding of it. Now, referring to the suggestion of Mr. Button, I desire to say that there is no conflict between sections 2 and 4 on this subject. Section 2, in the beginning of the section, provides the qualifications for electors to vote for the delegates to this Convention. Section 2, in the latter part of the section, provides that those persons shall vote at this election.

The CHAIRMAN. The gentleman's time has expired.

Mr. IVINS. Mr. Chairman, I am not a lawyer, but I just want to say that I am opposed to this whole scheme. I do not believe it was ever contemplated in this Enabling Act. I do not think it is good law, and I do not see how anybody can construe the wording of that fourth section to have such an application. It says, “at which election the qualified voters of said proposed State shall vote.” Now, it does not say the proposed voters of the State at all, and that is all these women are. You cannot make anything else out of it, and I am opposed to this whole idea from beginning to end.

Mr. VARIAN. Mr. Chairman, I regret very much that upon the former occasion I inadvertently used a word which, if I meant it, would not have been courteous to my friend from Salt Lake (Mr. Richards). In using that word, absurd, it was done thoughtlessly and with no intention, of course, to make any application to anything that might be promulgated by my friend. I want to call the attention of the Convention to the fact that in my judgment the legal arguments or statements presented by the gentlemen who are not members of this Convention, leave out of consideration a fundamental rule of statutory interpretation and construction. It predicates their whole conclusion upon single, and as it were, isolated language, found in one particular section

of this Enabling Act. Congress was dealing with a proposition which might or might not be affirmed when it enacted this Enabling Act. It uses the words “proposed State” six times in this Enabling Act. In each connection, possibly with the exception of the particular section relied upon by Mr. Richards, it is manifest that it is speaking of the proposed State in the sense of dealing with the people inhabiting a well defined and bounded area of country, who propose to form a State. For instance, in section 3 it is required that the delegates of the Convention shall, after organization, declare on behalf of the people of said proposed State that they adopt the Constitution, etc. In paragraph 2 of the same section, it says that the people inhabiting said proposed State do agree and declare in accordance with the requirements of the Enabling Act. Passing the third section for the present, in the fourth section, it provides that if the Constitution and government of the said State are republican in form, and if all the provisions of this act have been complied with, etc., the President shall issue his proclamation and thereupon the proposed State of Utah shall be deemed admitted; and finally, in section 19 it provides that the governor and secretary of state of the proposed State shall certify the election of the senators and representatives in the manner required by law, and when such {1638} State is admitted into the Union as provided in this act, the senators and representatives shall be entitled to be admitted. Now, bear in mind, Mr. Chairman, that no legislative power, other than that that may be necessary to affect the future State, after it shall have been admitted, is conferred by this Enabling Act.

All matters of legislation relative to the forming of this Constitution and its adoption and its approval by the President of the United States are retained by and executed in this country by Congress. It would be a matter of legislation, pure and simple, not with reference to the future condition of the new State, but with reference to existing conditions now, if you could interpolate into this Enabling Act language which would authorize the conclusion that we would have a right to create an additional class of voters not existing at the time of the passage of the act, and submit to them the ratification of the Constitution. You might just as well say that you could, by enabling aliens to vote under the language of this Enabling Act, submit the ratification of the Constitution to their choice. Does any gentleman contend that you could do that? You can prescribe when you shall become a State government_that persons who are not naturalized may vote. You could even prescribe that aliens might vote as well as those who had taken out their first papers. That is a matter of governmental state policy, pure and simple, with which the thegovernment of the United States has nothing to do, except in so far as it may affect the election of representatives in Congress. Now, in section 2, Congress is dealing with the question of qualifications of voters, and I call the attention of my friend, able and distinguished lawyer as he is, to that rule of construction, which sheds light on this. They are dealing with the qualifications of voters. First, they say that all male citizens over the age of 21 years, who have resided in the Territory for one year, etc., are authorized to vote for delegates to the Constitutional Convention. Following that, they say that persons possessing the qualifications entitling them to vote for delegates under this Act shall be entitled to vote on the ratification or rejection of the Constitution, under such rules or regulations as said Convention may prescribe, not in conflict with this Act. Now, if there is not a distinct determination of the subject matter, I am unable to appreciate the force of language. They are dealing there with the qualification of voters, not how they shall vote, but as to who shall vote. They have entered upon that field of legislative discretion and have disposed of it. Now, we come to the language relied upon by my

friend and the gentlemen who agree with him, but you will observe, gentlemen, that they are not dealing now with the qualification of voters. They are dealing with the manner of voting, as to how the vote shall taken and adopted. They say it shall be submitted upon a certain day, at which election (now mark this) “the qualified voters of said proposed State shall vote directly for or against,” that is, Congress is now telling the people how they shall vote, for or against the Constitution, for or against an amendment or at least a separate article that may be submitted in conjunction with it. So that, they have prescribed that the vote shall be taken clearly and distinctly without any encumbering with other matter of any kind_no connection with the election for officers or anything of that kind.

So, you see, that in these two separate propositions, you first have a clear and distinct declaration by Congress, which is dealing with the qualifications of voters, and in the first instance as to who they shall be and as to what their qualifications shall be, and second, as to how these persons duly qualified shall vote for or against the Constitution. Now, it seems to me, with all {1639} deference to these gentlemen, taking into consideration the situation under which this Enabling Act was passed, taking into consideration that woman suffrage is the exception and not the
rule, that it is in violation of the common parliamentary electoral law, that it depends entirely upon legislation to extend the franchise to that class of persons, and you find Congress legislating, as it has always done, to the exclusion of this class of voters, particular to confine the right to vote for delegates to the Constitutional Convention, to male citizens of the requisite age and residence; particular to mention the fact that the same qualifications shall be those which shall entitle the persons to vote for the ratification of the Constitution. Bear in mind this rule of construction which must shed light upon every occasion when interpretation of statutory language is necessary, as to the purpose and object of the language. What is the Legislature dealing with? What particular subject matter at the time the language is given expression to was under consideration? To repeat, first, Congress has defined the qualification of voters, dealing with that subject, and of necessity has excluded it from our consideration. Second, it is dealing with the subject as to how the vote shall be taken upon the ratification of this Constitution, necessarily excluding that from our consideration. It seems to me that the construction sought here is far fetched and is not borne out by the Enabling Act. But passing that, if I am right in the first premise, then I lay down that no legislative authority for the present is given to this Constitutional Convention. What can we gain by putting anything of the kind into this Constitution? Of necessity it will have to depend upon the construction put upon this Enabling Act by those, first, who are entrusted with the administration of election laws primarily here in this Territory_the Utah Commission. And second and lastly by the President of the United States, who shall be called upon to determine, first, whether the provisions of this Enabling Act have been carried out and performed. Second, whether the Constitution proposed is republican in form and not in conflict with the Constitution of the United States. The first board of authority which shall have the power to pass upon this question may be enabled to invoke the aid of the courts to determine the question for them, but I submit that even the courts themselves here in this Territory would not probably bind the President of the United States. It would have to be an opinion by the higher federal court. But, however that may be, by putting it in and taking a vote as suggested, you certainly risk your Constitution. It is suggested by my friend on the other side, if you leave it out, you risk your Constitution. That may be, but I do not view it precisely in that light. In one sense that would be true, and in that view it might occur to gentlemen that it would

be advisable to take a separate election in accordance with the view proposed by Mr. Richards, as I understand it.

Mr. RICHARDS. If you will vote separate.

Mr. VARIAN. If you will vote separate. One objection to that, of course, would be the expense attached to it. That, however, might not be sufficient to warrant the Convention in taking an antagonistic position on that subject. I had not considered it from that standpoint, only from the standpoint as first proposed here, as to what the construction of this act was, and ought to be, and while I have not procured a petition or letter of advice, nor have I procured credentials upon this subject from very many members of the bar, I happen to know that the opinion among some of the most distinguished members of the bar in Utah Territory is in accordance with the views that I {1640} have expressed here. I certainly hope that the motion of Mr. Maloney will not prevail unless the design is to take every risk possible.

Mr. RICHARDS. Is it not a fact that if the construction that Judge Sutherland and others suggest is the correct one, and the female vote was not taken, that the Constitution would not be adopted_that is, assuming that the President took that view of it?

Mr. VARIAN. I am inclined to think there would be great force in that.

Mr. RICHARDS. Let me ask this question, and in asking it, I desire, as I am sure every member of this Convention desires, to do what is right, and avoid a failure of our work. I believe the gentlemen that I am addressing will give me credit for believing that. Now, if a provision was made in the Constitution for taking the vote of all the proposed electors, and keeping the female vote separate, how could that possibly injure or tend to defeat the Constitution, or could it?

Mr. VARIAN. I don't believe it could.

Mr. RICHARDS. Well, then, if as you say, the failure to have them vote would be a fatal error if they have a right to vote, and letting them vote separately would not injure the matter if they had no right to vote if it should be so ultimately determined, then, does not prudence dictate to us that we should provide for that?

Mr. VARIAN. I admit there is great force in that. I was principally directing my argument to the first amendment.

Mr. RICHARDS. I put it upon that ground, Mr. Varian. I do not put it on the ground that my opinion is better than yours or anybody's else, but I do say that on the ground of prudence, this Convention ought to adopt a course that certainly could not be construed to be illegal, and could not result in the failure of this Constitution, because it had not been properly submitted,

Mr. EICHNOR. Mr. Chairman, in 1889, Congress passed the enabling act to permit the territories of North Dakota, South Dakota, Montana and Washington to frame constitutions. Now, in those territories the men that were entitled to vote for members of the legislature, or as the laws of the

state provided for, could vote for delegates to the constitutional convention. When it came to the ratification or rejection of the constitution, you will find that the language of that enabling act is identical almost with the language in the Enabling Act for Utah. In the state of Washington they submitted a separate proposition. They submitted the question of woman's suffrage as a separate article, and I say to you, gentlemen of the committee, whether a man is opposed to woman's suffrage, or whether he is favor of woman's suffrage, it is not this question. I will tell you, gentlemen, in the state of Washington they were not allowed to vote. The constitution was adopted and woman's suffrage was rejected, and Grover Cleveland proclaimed Washington as a state. Now, there is a precedent for us to follow. Some of you, gentlemen, have smiled because I have referred frequently to Washington, but there is a precedent where the language of the enabling act is identical with ours, where a proposition was submitted separately and the women were not allowed to vote on the adoption or rejection of the constitution. They were not allowed to vote on the article submitted separately, and Grover Cleveland proclaimed the territory of Washington as the state of Washington.

Mr. THURMAN. Mr. Chairman and gentlemen, although I did not intend speaking on this question this morning_in fact, did not know whether it would be presented at all or not to this Convention, yet it is a question to which I have given some thought and consideration. {1641} Early in this Convention, I was asked by a gentleman on this floor my opinion in relation to the right of women to vote, provided we qualified them to vote under the Constitution. I unhesitatingly gave it as my opinion that they would have no right to vote at the first election. I cannot say that my mind is entirely free from doubt yet as to my position, but I have been compelled to yield my convictions to a great extent as to the law on this question, from the reading of the Enabling Act itself. I do not see that the question raised by my young friend from Salt Lake, Mr. Eichnor, as to the Washington constitution, sheds any light at all upon this question here.

Mr. EICHNOR. May I ask Mr. Thurman a question?

Mr. THURMAN. Yes sir; if I misunderstand you, I want to be put right.

Mr. EICHNOR. Were you present when I asked Mr. Richards several questions.

Mr. THURMAN. Yes, sir.

Mr. EICHNOR. Did not I ask him if the proposition was submitted separately whether he would still claim the women had the right to vote?

Mr. THURMAN. Yes, sir.

Mr. EICHNOR. And his answer was in the affirmative. And in Washington the question of woman's suffrage was submitted separately and they were not allowed to vote, and the constitution was affirmed.

Mr. THURMAN. He might answer you affirmatively on the proposition, and I may answer you

negatively. I am making this speech now for myself. I will agree with the gentleman from Salt Lake, Mr. Richards, as far as we do agree, and where we disagree, I think I will state it succinctly. As I was saying, the separate submission proposed by the state of Washington might well be limited to those who were unquestionably qualified to vote under the constitution, and it would at least take a provision in the Washington constitution expressly providing that the women should vote. Now, I will ask how is that?

Mr. EICHNOR. If Mr. Richards is right here, they should have been permitted to vote in the of Washington.

Mr. THURMAN. I am asking for Information, not for the purpose of provoking a running discussion. You have examined it. Did the constitutional convention provide in the constitution that the women might vote on the question of separate submission?

Mr. EICHNOR. No, sir.

Mr. THURMAN. Then of course, they had no right to vote. It was not a part of the constitution until it became so by the vote of the people, as a separate article, but here we undertake to say in this Constitution that political distinctions are abolished, both as to suffrage and as to the right to hold office. We place women in the Constitution upon an absolute equality with men in those respects, and there is nowhere in the Constitution, excepting this proposition that we are now considering, where we undertake to make any sort of distinction. The question was asked by the gentleman from Salt Lake, Mr. Squires, as to the political complexion of these gentlemen who had rendered an opinion. If there were four democrats and one republican, or four republicans and one democrat, or if they were evenly divided, I fail to see what the political complexion of those men had to do with the question under consideration, unless we have reached the point at last where this question of wonan's suffrage and political rights for women is indeed a party question. I do not understand that we have. If women ever have a right to vote in this State at all, it will be because republicans voted for it and because democrats voted for it, because as far as democrats alone are concerned, if every one of them had voted for it, they never could have given suffrage to woman. {1642} So it is not a party question, and those things ought not to be injected either by inuendo[*note*], or otherwise, into this debate. They cloud the judgment of members. They preclude us from giving consideration to this question_that fair consideration and deliberation that ought to given to it, and so far as I am concerned, I want to keep that thing out of my mind in what little I have to say. I desire now to read the Enabling Act, and I want to say, Mr. Chairman, I am directing my remarks more particularly to this question of a separate submission. On the question of ratifying the Constitution, that seems to me to be the path of safety. Anything else would seem to me to be the reverse. It itis true that in the qualification of delegates to this Convention, Congress undertook to say just what those qualifications should be, and limited them to male citizens, residents of the Territory for one year. Now, at the end of that same section, right in connection with the delegates, it says what shall be the qualification of delegates to this Convention. Congress undertook to say to this Convention that those men should not be excluded from the right to vote upon the ratification or adoption of the Constitution, and that is what it means. It did not mean in that section to establish the qualification of the members on the adoption or ratification of the Constitution, but it meant to

say to this Convention that whatever may be the qualification that you give to the voters of the proposed State, these men, whom we say are qualified to vote for the delegates to the Convention, shall also have a right to vote on the question of its adoption or rejection. That is the meaning of that section, if I am capable of construing the language at all.

Now, when we come to section 4, there we must look to find who shall vote upon the ratification or adoption. And I want to say, Mr. Chairman and gentlemen of this committee, if it means what the honorable gentleman from Salt Lake contends for, it is the most curious language that was ever used by an intelligent body of men in order to convey that idea. Why shouldn't they have said this, that in case the Constitution and State government shall be formed, in compliance with the provisions of this act, the Convention forming the same shall provide all ordinances for submitting said Constitution, not to the people of the State, but to the people of the Territory? We are still a Territory and in the same line of thought for its ratification or rejection at an election to be held on the Tuesday next after the first Monday in November, 1895, at which election, the qualified voters_not of the Territory, not of any particular area of land, but the qualified voters of the proposed State. Let me pause one moment, gentlemen, to ask you a question. What is a state? A state is the people, within a given area, in their organized capacity. If the state is the people in their organized capacity, the proposed State then will be that which we propose to be the State in its organized capacity. What is that? You have got to look into our Constitution to see what the organized capacity of the people will be, and in that the question of suffrage, and who has a right to vote under the State, becomes a very important feature. Can you imagine that Congress used such language as that, if it meant what gentlemen on the other side contend for? How easy it would be to say “the qualified voters of the Territory, except as otherwise provided in this act?” Combine that with the closing words of section 2, and you will get all the voters qualified to vote in the State.

Mr. CANNON. Would the qualified voters of the Territory be the same as those that were allowed to vote for the delegates to this Convention?

Mr. THURMAN. I was just explaining that. I say that, combined with what Congress has said on the subject, {1643} would make up the legal voters. But they did not do that. They say, “the qualified voters of the proposed State.” My friend, who sits at my right here, comments upon that language by saying it does not say the proposed voters of the State but the qualified voters of the proposed State. I ask you again, what is the proposed State of Utah. Is it that section of country bounded by the lines mentioned here in our article on boundaries? Is that the State? If so, we have had a State government all the time. We have had a State ever since we came here, if that is a State. It does not mean that, gentlemen, and you know it. It means that area of country and the people that inhabit it in its organized capacity as a sovereignty, limited, subjected only to the Constitution of the United States, as a sovereign power. When we consider the qualified voters of the proposed State in that light and strip from our minds that the word state there simply means a certain area of country bounded by certain lines, we then get down to what Congress evidently meant. What is there wrong, gentlemen, in those whom we say are qualified to vote for State officers through all coming time voting at all public elections? What is there wrong in principle in saying that they also shall vote rather that we shall have a State? Otherwise you are forcing upon them conditions which probably they do not want. You are forcing them into line here and

giving them qualifications to do this or that or the other thing in a sovereign capacity, which if they had a voice they would probably say, “we do not want that.” In fact, it has been contended here by some gentlemen that the women do not want to vote. If I was in that position, and was actuated by selfish motives, and took that view, I would say, “let them vote. Kill the Constitution.” But that thought does not enter my mind as to how they are going to vote, but the question is have they the right? And that is what we are here seeking to determine. I say it is open to doubt. I say the only safe proposition, as far as this question is concerned, is to provide, even if there is an expense attached, for a separate vote of the female voters. If it should be determined they are not qualified to vote, no harm is done. If it should be determined that they are qualified to vote, their vote can be beadded and counted and canvassed with the rest of the vote or in addition thereto, and it will be absolute safety. I take it, that no gentleman, after all the work we have done here, wants in either case to see that work thrown away and become of no effect, because we have not followed the provisions of the Enabling Act.

Mr. ROBERTS. Mr. Chairman, I would be opposed to the amendment offered by the gentleman from Weber (Mr. Maloney), in the first place, because I think it would come in conflict with the parts of the Constitution preceding that, which we have already amended. In line 8, the proviso begins, that all male citizens over the age of 21 years who have resided in this Territory one year next prior to such election, and are qualified voters, are hereby authorized to vote for or against the adoption of this Constitution; and the amendment by the gentleman from Weber would make it say, “all electors qualified to vote under this Constitution may vote.” I do not know whether the amendment was drawn with a view of having a separate vote cast by the women of the Territory or not, but if it was not so drawn, then it renders this section, as I look at it, incongruous, and it ought not to be adopted, unless we contemplate striking out the first part of that proviso. The question proposed this morning, as I understand it, may be viewed in two aspects. It seems that there are some gentlemen who believe that the women of this proposed new State may vote for the adoption of the Constitution itself. Others, as I understand {1644} it, hold that they cannot vote for the Constitution itself, but they may vote for the State officers to be elected. I think, sir, that the first proposition is a very unusual one. I remember in the debates on the question of granting suffrage to women, that I made the statement that such a thing as permitting those whom we propose to enfranchise voting upon the question whether they should be enfranchised or not, was an unheard of proceeding, at least either in England or in the United States; that no precedent of the kind could be cited, and I hold to the opinion that I then expressed that I do not believe it is a proper thing to submit this to the women of this proposed new State as to whether they shall be enfranchised or not. So that I am against that part of the proposition, and I am equally against the subsequent proposition, to permit them to vote for the State officers. Now, sir, it needs, in my opinion, no legal acumen to carry one to that conclusion. It seems to me that a very simple process of reasoning, without any straining or effort whatever, carries one to the conclusion that they ought not to vote, and cannot rightfully vote at this first election, even for State officers, and that line of reasoning is simply this, the women of the proposed new State are not enfranchised until you adopt this Constitution, and I think gentlemen will not contend that unenfranchised citizens are qualified to vote. Now, sir, that is the way this proposition presents itself to me. The contention here, and as I must think, the evidently strained efforts to permit this class of voters who are to-day unenfranchised and will remain unenfranchised until this Constitution is adopted, and until the proclamation of the President of the United States shall complete our work by

permitting the State to enter the Union, is an absurdity upon its face_to contend that unenfranchised factors of the State shall vote. Of course, it may be said that my prejudices against woman's suffrage would perhaps lead me to take this view of the case, and, of course, it is quite possible that one may be unconsciously influenced by his prejudices, and I am willing to admit that, looking upon the enfranchisement of women as an evil, I would like to postpone that coming evil just as long as I can. I think we will have enough of it when it comes; that the time will come when we will all be heartily sick of it, and I therefore am in favor of postponing it.

Mr. BOWDLE. Mr. Chairman, if I understand the proposition, it is this, that the women shall be allowed to vote separately upon whether they will adopt this Constitution or not. When that vote is taken and canvassed, if there are enough men that have voted to adopt the Constitution, we do not care anything about the women. That, I understand, is Mr. Richards's position; that if the vote by the male portion of this Territory shall be sufficient to adopt the Constitution, the others will be left out, but if there are not enough men to vote to ratify the Constitution, then we will as a hazard, peradventure, try the other and see if Grover will let us through on that line. That is, as I understand, the proposition exactly. Now, gentlemen, if I wanted to defeat this Constitution, I would take that tack exactly, because if there are anything like enough men to defeat it, and you put it in that shape that number will increase, and if it is safe now in the hands of the men, it will be safer in the hands of the men to let it alone and not use that uncertain element_that contingent vote that you propose here to use, because if there has been some feeling worked up in this Territory, on the question, and it is a recognized fact that there is an antagonism now being waged against woman's suffrage here, that will still affect the vote on the Constitution. If you permit, by this schedule, the women to vote on the ratification {1645} of the Constitution, you will increase that antagonism, and you will then be compelled to depend for the ratification of the Constitution upon the women, and if the powers that be shall say that that is not constitutional, I believe your Constitution will be gone. I am sorry that the gentlemen themselves have lost confidence in themselves and now they want the women to come to the rescue and help them through. I say, gentlemen, let that thing stand just as it is, just as the section now stands with the amendments that have already been adopted, and I believe the Constitution will be safe and that it will be ratified, and I doubt if it will be if you put that in.

Mr. MURDOCK (Beaver). Mr. Chairman, as it was remarked here this morning, I am neither a lawyer nor a son of a lawyer, but it seems to me this is a very plain proposition. In the second section of the Enabling Act, it says what kind of voters shall vote. That is, every male citizen. Then, they go to the fourth section and there it says every qualified voter may vote. Now, the question is very comprehensive to me, and I presume is to some of the members if not all, if qualified voters shall vote, when are the women qualified voters? When this Constitution makes them so, and the people of the Territory ratify the labors of this Convention and the President has had it submitted to him and he also ratifies it. Then they become legal voters and not till then, according to my judgment. While I am quite in favor of equal suffrage, yet I think it would be very unreasonable to say that they should vote upon their own acts, just as an individual might if he had a great point to gain, that he should have the privilege also to vote upon it, that those in favor of him might have the advantage of his vote also. And so I regard it in this matter, that the women portion are not legal voters, are not competent voters, consequently I should be opposed to that amendment,

Mr. RALEIGH. Mr. Chairman, I trust this amendment will not prevail, for the reason that I don't believe it would place us in keeping with the provisions of the Enabling Act. Now, it may be presumption for me to speak on this question before this Convention, not being a practical lawyer, but I will state for the comfort of the gentlemen on this floor, that I have been studying the constitutional law for almost forty years, and when I read several weeks ago, this Enabling Act, came to the conclusion that it would not allow those whom we have made eligible to vote on the Constitution, to vote; that is, that we have made eligible to vote and have placed it in our Constitution_it would not allow them to vote at that time, but after that, of course, if the Constitution is ratified, they will be eligible to vote on any question. Now, I don't know why it is that men will contend here on this floor that they are eligible to vote. I have never discovered any language at all that they have the right to vote at that time, and hence I hope the amendment will not prevail.

Mr. MALONEY. Mr. Chairman, I believe one thing before the house now is the consideration of the amendment proposed by myself, which is to insert {1646} the words read. “All electors qualified to vote under this Constitution may vote.” Now, Mr. Chairman, the object is to allow the women of this Territory who have been enfranchised by the provisions of this section, to vote for State officers at the coming election, on the first Tuesday after the first Monday in November, 1895. I never knew that there was any diversity of opinion, even among the distinguished luminaries of the Salt Lake bar, on this question. I thought it was unanimously agreed, that if we provided by ordinance in this Constitution for the women of the Territory to vote for State officers, that they could vote for such State officers, but I understood there was a diversity of opinion with regard to their qualification to vote for or against the Constitution. My position, Mr. Chairman, is that the women of the Territory cannot, under the Enabling Act, vote for or against the ratification of this Constitution. And it strikes me the Enabling &et is clear. The act of Congress, section 2, provides that all male citizens over the age of 21 years, who have resided in the Territory for one year next prior to the election, may vote for delegates to this Convention. The latter part of the section provides that persons possessing the qualifications entitling them to vote for delegates shall be entitled to vote on the ratification or rejection of the Constitution, under such rules and regulations as the Convention may prescribe, not in conflict with this act. Now, I take it for granted, that that language is clear that the ladies cannot vote for the rejection or adoption of this Constitution, and there is no provision in this Enabling Act saying that we, as delegates to this Constitutional Convention, may provide that the women can vote. The women may vote for State officers at the coming election if we so provide by this schedule, or if it is provided in the Enabling Act.

Mr. ROBERTS. Are the women of this State enfranchised until after the adoption of this Constitution?

Beginning in 1887, the Tucker-Edmunds bill took away suffrage from the women in Utah. That has not yet been restored, except this Enabling Act provides that we may by schedule or ordinance say who shall vote for State officers, to be elected in 1895, but we have not been authorized to say that women may vote for or against the ratification of this Constitution. So far as that is concerned, I agree with my friend, the delegate from Davis County. In other words, it is a question like a man being dead voting to make himself alive, or somebody out here in charge of the warden voting to get himself out. I agree with the gentleman that far, but I do contend that under this Enabling Act we have a right to say whether or not the women, as we have provided in this Constitution, may vote for State officers. And if we shall, in our Constitution, provide that under the Enabling Act, we have a perfect right to say that the women may vote for State officers at the coming election.

Mr. ROBERTS. I think the gentleman did not understand my question. My question simply was, are the women of this Territory enfranchised before the adoption of this Constitution, or can they be?

Mr. MALONEY. No, sir; but I do say that we can, under the Enabling Act, by ordinance, permit them to vote at the coming election for State officers. They are not enfranchishedin so far as {1647} the adoption or rejection of this Constitution is concerned. I make a distinction there, and I think the Enabling Act authorizes and recognizes a distinction. I am not willing to put anything in this Constitution by which it could be endangered; above all things in this world, I think I do desire statehood for Utah. I would sacrifice woman's suffrage for statehood, because while I am for woman's suffrage, and always have been, we could postpone that rather than defer statehood, as we could get it as soon as the Legislature met. I have been from the first for woman's suffrage. It is true I was willing to delay this petition if they saw proper to do so, but whenever the question came on the final vote, I was determined that they should vote so far as my vote went, and that they might have all the rights that men are entitled to, because they were equally entitled to them.

Mr. VARIAN. I desire to ask the gentleman from Weber two questions. First, entertaining the views that he does concerning the main proposition, why he offered that amendment, which in terms provides that women shall vote upon the adoption or rejection of the Constitution?

Mr. MALONEY. I did not offer any amendment, Mr. Chairman, authorizing the women of the Territory to vote for or against the adoption of the Constitution. It provides for their voting for State officers in the coming election, and no farther.

Mr. VARIAN. Then I misunderstood the effect of it.

Mr. MALONEY. The amendment was drawn up very hurriedly because I came in after the article

came up, and if it is not distinctly worded, I will ask to amend it. The object I had in mind was that they might be allowed to vote at the coming election for State officers.

The CHAIRMAN. The chair is of the opinion that the amendment would permit women to vote both for the Constitution and for the State officers.

Mr. MALONEY. Then, I will ask that it be made to read so that they will vote for State officers only.

Mr. VARIAN. That is what drew out my remarks heretofore made. I want to ask the gentleman a second question.' I presume the gentleman will admit, by way of a premise, that this matter of enfranchising a class of persons is a purely legislative matter. I want him to point out in this Enabling Act where that grant of authority and power is conferred upon this Constitutional Convention.

Mr. MALONEY. I think it is section 4, if I am not mistaken.

Mr. THURMAN. If your position is right, clearly they have a right to vote for the Constitution. You have been contending here that they have no right to vote for or against the Constitution, but may vote for State officers.

Mr. MALONEY. I did not understand that there was ever any trouble or disagreement among constitution makers with regard to that.

Mr. VARIAN. Well, there is.

Mr. MALONEY. But I do hold that they have a right to vote for State officers.

Mr. RICHARDS. Is it not a fact that if the construction contended for by Judge Sutherland, Judge Henderson, and others, is correct, a failure on the part of this Convention to provide for submitting this Constitution to the vote of all the electors of the proposed State might result in the failure of the Constitution; that is, that it might be held that the election was illegal, because it had not been submitted to all the legal electors?

Mr. MALONEY. If I understand your question, it is that if they were permitted to vote for or against the Constitution, it might endanger statehood?

Mr. RICHARDS. No, sir; if the position taken by Judge Sutherland, Judge Henderson, and the other gentlemen who signed this opinion that I read, is correct, and the women have a {1648} right to vote on the Constitution and for State officers, is it not a fact that if the Constitution did not afford them that right and the vote was taken only of the male electors, it might be said that the Constitution had not been properly submitted, and therefore, that it had not been properly ratified?

Mr. MALONEY. That could be avoided by your proposition having the vote counted separately.

Mr. MALONEY. It might be.

Mr. RICHARDS. If that be so, what is the objection to having a separate submission of this matter and having the women vote?

Mr. MALONEY. I am not objecting to your separate submission article. Your amendment is not before the house, and I am not objecting to the question of taking the women's vote separately.

Mr. RICHARDS. But it is involved in this question in this way, that I propose as an amendment to your amendment_the insertion of these words before the vote for the Constitution, so that it will apply to voting on the Constitution as well as for State officers.

Mr. MALONEY. It strikes me that if the women of this Territory are permitted to vote for or against the Constitution, statehood will be endangered, but I do not think there is any question but what if we provide that they may vote for State officers at the coming election_

Mr. RICHARDS. Will you answer me how statehood will be endangered if they vote separately on this proposition?

Mr. MALONEY. I do not say that if they vote separately it will be endangered. I did not understand that that question was before the house at all. I understood Mr. Richards read what he moved as an amendment. I say they cannot vote for or againsthe Constitution, and that if we permit them to vote, not taking the vote separately, but if they vote for or against this Constitution, with the male voters of this Territory, it will endanger statehood; but I say if there is an amendment that the women of the Territory may vote separately, I have no objection to it. Then, it will be easily eliminated. We will know just exactly what the male vote of the State was.

Mr. VARIAN. I would like the gentleman to answer my question_to point out in the Enabling Act where the authority is given to this Convention to legislate a class of voters into existence to vote on anything.

Mr. MALONEY. By our having the authority in this Enabling Act to provide by the schedule for the voters of this proposed State.

Mr. VARIAN. Will the gentleman point it out?

Mr. MALONEY. That is exactly where I place it. I say we have the authority under the Enabling Act to say by schedule or ordinance who shall vote for State officers at the coming election.

Mr BARNES. Mr. Chairman and gentlemen, I am not a lawyer nor the son of a lawyer, as my distinguished friend from Weber remarked, and shall not attempt to argue this matter from a legal standpoint at all. There is a matter, however, of right involved here that I think we ought not to lose sight of. The question presents itself to me in this light: Do the women of Utah to-day hold

the right to vote? I say no. They will not hold that right until after the Constitution is ratified. It is clearly, then, I think, out of order for us to contemplate giving them the right to vote until after the ratification of the Constitution. That is my position exactly.

Mr. THORESON. What right have the men of the Territory to vote for State officers before the Constitution is adopted?
{1649}
Mr. BARNES. They hold that right, as I understand it, by the Enabling Act. The Enabling Act clearly says who shall vote.

Mr. JAMES. Mr. Chairman, I do not propose to discuss this question from its legal standpoint. It has been ably handled by the legal gentlemen upon this floor, but I do want to say that I believe that the adoption of such a provision is purely revolutionary, and I think it endangers our Constitution, and there might be a great deal said to this Convention upon this subject if it was not evident that the temper of the Convention is such that it will not adopt any such amendment as has been offered here on the floor. But I wish to say a word or two regarding the convention that was held in Virginia in 1829. We had some remarks upon this absolute proposition from Mr. John Randolph and Mr. Nicholas and others. It was contended that conceding the right of the general assembly, by its second act, to provide for the calling and organization of the convention, it trans-scended its power in authorizing that body to submit the result of its labors to anybody but the freeholders themselves. Thus Mr. Randolph said:

By whose authority did the legis-ture pass the act under which we are assembled here? By the authority of their constituents. And who are their constituents? The freeholders of the commonwealth. By whose authority do we sit here? Whence is our power? From our constituents. And who are our constituents? The same answer must be given_the freeholders of the commonwealth. Now, the freeholders of the commonwealth having given their sanction to the act of the legislature_I refer to the first as well as the second act on the subject of a convention, and deputed us here to propose amendments to the old constitution, or the draft of a new one, to whom, I ask, in the nature of things, did the freeholders suppose the new constitution was to be submitted for adoption or rejection? Must it not have been to that original authority, to that source and fountain from whence is derived all our authority as a convention? I mean to themselves. Let me suppose a case. A majority of the freeholders of Virginia, being the body politic of Virginia, have consented that a convention shall assemble for the purpose of devising amendments to the existing constitution or proposing a new constitution in its stead. Now, sir, the freeholders of Virginia have not yet decided_though they have decided that amendments shall be submitted to them_that, with worse than the stupidity of Esau, they shall be deprived of their birthright. The convention are proposing that the former limits of the right of suffrage shall be extended, I will say, ad infinitum. Who is to decide on this question? Those to whome we propose to extend the right? Unquestionably, no; no more than the people of Ohio or Pennsylvania have a right to decide it. They have no right whatever; they have not a shadow of a right. Sir, it is plain as any proposition in Euclid_sir, it is plainer; it is selfe-vident that no other power on earth, save. that power from which this convention derives all its authority to propose any constitution at all, can rightfully pronounce on the validity of our acts, or decide upon the acceptance or rejection of such constitution as we shall make.

Mr. EVANS (Weber). Mr. Chairman and gentlemen of the Convention, many of the statements

which have been made may be admitted, and at the same time it will not change any phase of the question. We sometimes forget the power and authority which a constitutional convention possesses. As I understand it, section 2 of the Enabling Act undertook to enfranchise a class of people in this Territory who had, prior to that time, been disfranchised; that is to say, those who lived in violation of the laws of the United States. In the latter part of the same section, Congress undertook to say that that class of people, whom it enfranchised, should not be disfranchised when it came to voting upon the ratification of the Constitution. So far as section four is concerned, respecting the right of the proposed voters of the State to vote upon the ratification of the Constitution, I think that it is in some doubt, and I shall not undertake to decide that question now. But I do mean to say {1650} that the rule of construction with respect to a matter of this kind is this, that where the authority which calls a constitutional convention together, whether it be an Enabling Act passed by Congress, or whether it be a legislative enactment for the revision of a constitution, or where there is no expressed limitation upon the right of the convention to prescribe the qualification of voters, that it is the absolute and unqualified and inherent right to bring in a new class of voters and permit them to vote upon the ratification of that instrument. That is the rule of construction. We stand here now prescribed only by the Enabling Act passed by Congress. Section 4 limits this Convention with respect to the class of voters who shall vote for the adoption of the Constitution; then we cannot go beyond it. If it does not, we then have the power in this body to prescribe the qualification of electors, Is there anything in the instrument, gentlemen, which limits this body? That is the inquiry to be made. If there be, then we cannot go beyond it. I doubt seriously whether there is anything intended in this instrument to limit this body on the question as to who shall vote for the ratification of that Constitution, but the remedy which has been offered upon that question is fair. If women have not the right to vote upon the ratification of the Constitution, then by putting their votes in a separate box, no harm can possibly result. But gentlemen, there is another question, about which I believe there can be no doubt, and that is, the right of women to vote for State officers and members of the Legislature. I have yet failed to hear any lawyer doubt or express at least a doubt upon that proposition. A constitutional convention, in its very nature, is revolutionary. It may be a peaceable revolution, changing from one form of government to another, but in the absence of any restriction, it has the right to form such government as it pleases. It has the right to prescribe the qualification of the electors of the political subdivision. It has the right to say who shall be its officers, who shall administer its affairs, and no constitutional lawyer will question this proposition. Revolutionary? Why, of course. Why should not it be? It may be by force of arms. It may be peaceful. We are sitting here now as a peaceable revolutionary body, under authority of the act of Congress to form a state government. Anything which does not restrict us, we have the power to do, and we are supreme in the exercise of that power. The gentleman from Davis County has remarked that it is a strange thing_an anomalous thing, that a class of voters who are disfranchised should be permitted to vote to enfranchise themselves. Mr. Jameson in his work on constitutional conventions, has laid it down that a constitutional convention, in the absence of any restriction, has the right to disfranchise any class of citizens and it likewise has the right to enfranchise any class of citizens. The particular paragraph read by my friend from Salt Lake is only the expression of opinion of Mr. Randolph. In the same article people express a contrary opinion, and the author himself says that this power exists to either disfranchise or to enfranchise in the absence of any restriction. I have not had the time to read it. If I had I should take it up and go into it in more detail, but let me remind the gentleman from Davis who lays down his proposition

that it is an anomalous thing that that class of people who are not entitled to vote should not have the right to vote upon the question of enfranchising themselves, not even for State officers; why, does he not know that State officers will not be the officers of the new State unless the Constitution itself be adopted? Does he not know that the Convention is creating these officers? We are here in a revolutionary capacity {1651} so far as that is concerned. These State officers will never take their seats, will never act under the authority of the State unless the Constitution itself be adopted. In so far as that question of State officers is concerned, this Convention has plenary power over the question as to who shall vote for their election.

The Enabling Act itself provides, in section 19, that the Constitutional Convention may, by ordinance, provide for the election of officers for a full State government, including members of the Legislature and representatives in the 54th Congress, at the time of the election for the ratification or rejection of the Constitution. Further down in the section, it is provided that the State government formed in pursuance of the Constitution, as provided by the Constitutional Convention, shall proceed to exercise all the functions of State officers. Why, gentlemen, there is no doubt, as Mr. Randolph stated in the article_if Mr. James had read a little further; this proposition, is as clear as any principle in Euclid, that this Convention has the absolute and unqualified power to confer upon women the right to vote for State officers. And, gentlemen, I take it that we would be recreant to the duty which we owe that class of voters, whom we have enfranchised in this Constitution, if we were to postpone their right to participate in this matter. There were twelve states where the question came up upon the right of the convention to prescribe qualifications of voters, of classes different from those which were prior to that time enfranchised, and five out of the twelve states, which had no power at all by the Enabling Act, or by the legislative enactment which called the convention, to prescribe qualifications of voters, brought in new classes of voters and they were permitted to vote upon the ratification of the constitution. But I do not go this far, and will not. I do not care. It does not serve the purpose of the argument, because the proposition to put these votes in a separate box will obviate that difficulty; but will any gentleman upon this floor deny the right of women under this Constitution, if we provide for it by ordinance, or in this schedule, to vote for State officers?

Mr. VARIAN. Yes, I do.

Mr. EVANS (Weber). Mr. Varian says he does. Why, gentlemen, a constitutional convention has the power in itself, when it is legally organized in the absence of any restriction, to say who shall be its State officers. We have the right to say the number. We may cut them down. We may enlarge them. We may say who shall vote for them, and they do not take their offices, they do not exercise any of the functions of their offices until the Constitution itself is adopted. When it is adopted, it is a matter purely with the State and not with the United States or any power higher than that of this Convention. I take it, gentlemen, that it is simply a question of postponing the right of women to vote for an indefinite length of time.

Mr. VARIAN. Mr. Chairman, I want to call the attention of the chair, and the gentleman who has just spoken, to the fact that he, unintentionally, of course, completely reversed and misstated the proposition as to the general rule, as to the increasing of the franchise under circumstances like this. (Reads.)

Mr. ROBERTS. I wish to ask the gentleman if he understood me to question the right of this Convention to enfranchise a body of people not now em franchised?

Mr. EVANS (Weber). No, sir; I did not.

Mr. ROBERTS. I understood the gentleman to take that position, and I wish to say that it was not my position. My position, Mr. Chairman, is simply this, that you have no right, and this Convention has no right to enfranchise any class of citizens or any class of people in this Territory, but through the Constitution and its adoption. You cannot enfranchise people before the adoption of that Constitution that are not now enfranchised.

Mr. EVANS (Weber). I have been asked these questions and I have not had an opportunity to answer them. In the authority read by Mr. Varian, the position which I took is supported, except that there were seven states instead of five in favor of my proposition.

Mr. VARIAN. No.

Mr. EVANS (Weber). Of course, we cannot go over this carefully.    Mr. Varian and I both looked over this matter before we came into the Convention. The position taken by Mr. Roberts is a very peculiar one. Suppose we were here without any authority at all of law, making a revolutionary Constitution, and had no laws governing us at all, wouldn't that body have the right to prescribe who should be qualified to vote upon the ratification of the Constitution? In other words, suppose all the people were disfranchised; take any revolutionary government, where all the people were disfranchised; they get together by their representatives and form the constitution and then they submit the constitution to a certain class of voters, who in the constitution are qualified to vote. That is the position in which we are now, except where there are restrictions upon us, and I say in this matter of State officers, there are no restrictions, and we are supreme upon that question and have the right to extend the franchise.

Mr. HAMMOND. Mr. Chairman, this is a matter that I have listened to with a great deal of

interest and I find from the arguments, as far as I can follow them, that the evidence is certainly in favor of Mr. Maloney's amendment, backed up by able jurists here, such as Dave Evans, Thurman, and a host of others. Now, sir, I am for the voting for this amendment, that the women shall have the right to vote for their officers at the coming election. I believe it is right.

The amendment of Mr. Maloney was rejected.

The amendment of Mr. Goodwin was adopted.

The amendment of Mr. Richards was rejected.

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

AFTERNOON SESSION.

The committee re-assembled pursuant to adjournment, and resumed consideration of the article entitled schedule.
{1653}
Section 10 was read.

Mr. RICKS. Mr. Chairman, I notice that in the article on public lands, it provides for the election of three land commissioners. I move as an amendment to this section that we insert in line 7, between “judges” and “and,” the words “three land commissioners.”

The amendment was agreed to.

Section 11 was read.

Mr. KIMBALL (Weber). Mr. Chairman, I move to strike out, in lines 3 and 4, the words “judges of the district court,” and let it apply to all officers.

Mr. RICKS. That would make this board, secretary of state, governor, and treasurer, a board to pass upon their qualifications for office. I hardly think it would be consistent.

The amendment was rejected.

The CHAIRMAN. I would like to suggest to the chairman of the committee, why judges of the supreme court are not also included in that list.

Mr. RICKS. The opinion was that the judges of the supreme court, being State officers, would be passed upon in the regular manner provided by territorial law, but the district judges, being a little different from State officers, being voted for by districts, we thought we would make the provision to cover district judges only.

The CHAIRMAN. Then, would not the judges of the supreme court have the right to pass upon

the qualification of their election?

Mr. RICKS. No, sir, I think not; I think it would have to be done by the territorial board.

The CHAIRMAN. Suppose an appeal was taken.

Mr. RICKS. Then, sir, I think it would be handled by the territorial supreme court.

Sections 12, 13, and 14 were read.

Mr. SQUIRES. Mr. Chairman, I notice that section 14 reads, “the provisions of this Constitution shall be in force on the day on which the President shall issue his proclamation,” and then down further it says, that the terms of all officers elected at the first election under the provisions of this Constitution shall commence on the first Monday next succeeding the issuance of the proclamation. There would be a lapse. We would* have a State Constitution without any officers, from the time the President issued his proclamation until the next Monday.

Mr. RICKS. There would be only three or four days at the most. I hardly see that there would be any objection to it. The territorial officers hold until they are succeeded by the officers under this Constitution, and if the President should issue his proclamation on Tuesday, there would only be until the next Monday for the territorial officers to hold. I do not think it amounts to much.

Mr. EICHNOR. Of course, when the President issues his proclamation, it would be in force whether we say so or not.

Mr. MALONEY. Mr. Chairman, I have a section which I would like to present as follows:
All officers elected or appointed in the State of Utah shall serve during their respective terms and until their successors shall be elected and qualified.

Mr. RICKS. Mr. Chairman, I do not understand that that is necessary. I think that section 14, that we have just passed, covers that.

Mr. KIMBALL (Weber). That only refers to officers elected at the first election.

Mr. MALONEY. I wish to say to the committee that I presented it at the request of the chairman of the judiciary committee. I do not think the ground is covered by any other provision in the Constitution.

Mr. EICHNOR. Mr. Chairman, I think it is unnecessary. The terms of the officers who are elected are fixed by the Constitution. Those terms which are not fixed by the Constitution, no doubt will be fixed by the Legislature.
{1654 - CORPORATIONS}
It looks to me like lumbering up the schedule.

Mr. RICKS. Mr. Chairman, section 13. it seems to me, covers that. It provides for all officers that

are not specially provided for in this Constitution, that the Legislature at its first session shall provide for the election of all officers whose election is not provided for elsewhere in this Constitution. If they meet within three months after the adoption of this Constitution, which they will, the first Monday in January, then it seems to me they will be able to provide by law for all officers not herein provided for.

The section proposed by Mr. Maloney was rejected.

The committee then arose and reported as follows:

Mr. President, your committee of the whole have had under consideration the article on schedule, and beg leave to report that they have considered the same and recommend that it be placed upon the calendar for third reading. They have likewise had under consideration the article on public buildings, and ask a like disposition to be made.

The following communication was read:

To the honorable president, officers, and members of the Constitutional Convention, Gentlemen:

The women of Salt Lake City, who appreciate the labors of the Convention in the interest of the coming State, desire the pleasure of entertaining the delegates and their ladies, including officers of the assembly, at a reception given in their honor at the Templeton hotel in this city on Thursday, May 2nd, from 9 o'clock until 11 in the evening. The reception is tendered the Convention in behalf of the women of Utah.

Very respectfully.

P. S. The invitation is without signature as it was thought possible some members might ask how many yards of names there were attached.

Mr. BARNES. Mr. President, is not there something wrong with regard to the date, Thursday would be the second.

Mr. EVANS ( Weber). I would like to inquire whether that communication was sent in before the action of the committee this morning upon the right of women to vote?

The PRESIDENT. I think it came into possession of the house before that.

Mr. SQUIRES. Mr. President, there is one thing about the communication that we ought to ascertain, that is, whether it is genuine or not. There should be certainly some signature here to signify that it means something. You will notice that there is no signature to the communication, and that the date stated is conflicting.

The motion to lay on the table was agreed to.

An invitation to witness an exhibition by the Salt Lake fire department was read and accepted.
The Convention then proceeded to the third reading of the article entitled corporations other than municipal.

Sections 1 and 2 were read.

Mr. RICHARDS. Mr. President, I understood that section 2 was stricken out. No, I think I am mistaken. I desire, however, to call attention to one imperfection that occurs to me with reference to this section, and that is in the provision contained in the fourth and fifth lines. I desire to know if the chairman can tell me what that means?

Mr. JAMES. That means simply this, that no set of men will have an opportunity to apply for charters for certain lines of business under the present laws, and pigeonhole them and have them {1655} for sale after the Constitution goes into force.

Mr. RICHARDS. Suppose a franchise has been granted, say the week before the State government went into effect, and that franchise provided that an acceptance should be had within thirty or sixty days, or any other time, would not this provision exclude the exercise of any privileges under that franchise?

Mr. JAMES. I think not,

Mr. RICHARDS. Well, it seems to me that it would.

Mr. JAMES. And I would answer that question further in this, that this provision is almost a universal provision in the constitutions of the states.

Mr. RICHARDS. I heartily approve of it, if it does not reach too far.

Mr. JAMES. And not only that, I will answer the question by asking one. If it would not be better to hold off a franchise for a week than to allow it to be pigeonholed and then held out for sale?

Mr. RICHARDS. That may be true but I think we can make this Constitution mean just what we do want, when we can find out what we want.

Mr. PRESTON. Mr. President, I move to strike out that section 2.

Mr. KIESEL. Mr. President, I have an amendment; after the word Constitution, in line 5, make it within three months after the adoption of this Constitution; that will be the limit of time.

The amendment was rejected.

The motion to strike out was rejected.

Sections 3, 4, 5, 6, and 7 were read.

Mr. JAMES. Mr. President, section 7, if you will remember, is the section that I called the attention of the Convention to in committee of the whole. I also have had a consultation with the gentleman from Utah County (Mr. Thurman), and asked him as a legal gentleman to suggest something that would relieve this section from some of its objectionable features, and I would like to ask him if he has anything to offer the Convention?

Mr. THURMAN. I have no amendment prepared, but I will suggest what I think ought to be. “No corporation shall lease.” I think that “lease” ought to be stricken out. The reason for that is this, you take a franchise, say like a street railway, and if the corporation had not a right to lease the franchise for a given number of years to raise money upon it without the franchise being liable for debts incurred in the operation or enjoyment of the franchise, it would effectually exclude them from leasing it. I think they ought not to have the power to grant it absolutely.

The PRESIDENT. There is no motion before the house.

Mr. JAMES. Mr. President, I move to strike out the entire section.

Mr. EVANS (Weber). Mr. President, I think that is one of the most important sections in this article, and I believe when the Convention understands its force it will not strike it out. Even the suggestion made by Brother Thurman would be a dangerous suggestion, because it would amount simply to this, that if a corporation can lease its franchises and its property, and thereby relieve itself of individual liability, the persons who might be injured in the operation of the corporation would be without remedy. Now, let me bring to your mind an illustration. Take any of these transcontinental railways that have charters, and let them lease those rights to other companies, and suppose the companies to whom they are leased are impecunious, they have nothing; simply leasing the road and the rolling stock and all the property connected with it. If any liability should occur by reason of the operation of those roads while in the possession of the lessee, there would be no remedy whatever to enforce a judgment which might {1656} be obtained. The lessee would be penniless. The corporation would own the property, it could not be touched, and the result would be that every man who was injured or every man who made a contract with the lessee would be without remedy. That is just exactly what this section is intended to prevent. You know, gentlemen, that if any man were a corporation lawyer, or if any man were engaged in the business of running corporations, he would take advantage of the law, or the absence of any law, in order to relieve the company and its property from liability by leasing its property and franchises to some irresponsible person, and the result would be that the company would be receiving all the benefits, and the person who contracts with the lessee, or

who is injured by reason of the operation of the road by the lessee, would be remediless. When you understand this, surely you will not strike this out. It is not right that it should be done. If you do it, you put into the power of corporations to relieve themselves of any law liabilities, or contract liabilities, so far as the lessee is concerned. There is nothing to prevent it at all.

Mr. MALONEY. Mr. President, I trust the section will not be stricken out. It is in the constitution of Washington. Take, for instance, the Oregon Short Line, which is a branch of the Union Pacific system. The Union Pacific is in the hands of a receiver. Where, I ask any gentleman of this Convention, is there a remedy for a man who has contracted with this railway? The people along the line are simply helpless. I am not able to see any good reason for striking this out. The lessee should be held responsible, and when the lessee is operating the road the property should be held responsible. I repeat, Mr. Chairman, I cannot understand why the chairman of the committee leads the assault on the articles which he has reported.

Mr. JAMES. Mr. President, I arise to a question of personal explanation. The gentleman knows very well that I said to him that I was in doubt about that section and wanted it corrected. Mr. Thurman and other gentlemen know that I did not want anything to go into this article that was not for the best interests of the State. I am just as anxious to protect the public against corporations as any other gentleman. Now, I appeal to a gentleman right over there_Mr. Ryan. Do not you know, Mr. Ryan, that that would shut out every leaser of mines in this Territory. Why? Because he goes to Mr. Ryan, or he goes to Mr. Evans, to lease his mine; under this provision he would be unable to lease that mine unless he would be able to put up a large bond. You know it has become a great industry in this Territory. Large numbers of men are engaged in our camps in leasing mines, and in leasing mines they go to the proprietors of those mines and make contracts. Now, what is our system in contracting with those gentlemen in leasing the mines? Our system is this, that we bind them not to run the mine in debt, and the law requires of us_so the legal fraternity advise us, and I have followed their advice, and that we are compelled to put up a notice on our mining claim that the mine is leased, and that they must look to the lessor for their pay. That is our method of proceeding in leasing our property, Now, what would a poor fellow do when he comes to us? Why, we cannot lease it to him under that provision, because it is absolutely held for the debt he contracts, and we cannot get away from it. So am I held for the debt contracted. Now, the result will be the man would be shut out, or he must furnish a large bond before he can secure that property, or he cannot run that property in debt. Now, that is the reason I want this thing amended, and I was in hopes it could be amended {1657} so that franchises could not be alienated and avoid their debts, but so that you could contract to lease that farm, or mine, or anything else you own, and make liable the party who leases the property from you.

Mr. THURMAN. Do you not understand that a mine or a farm or any property of that kind is not a franchise?

Mr. JAMES. Why, my mine is a franchise. I have several of them in the Territory.

Mr. THURMAN. Franchise is a mere right to act_to enjoy a privilege.

Mr. EVANS (Weber). Let me ask Mr. James a question. Take the case you put and suppose there is a loss, would not it be as well that the owners of the property would stand the loss as the poor fellow who works for the lessee?

Mr. JAMES. Why, certainly, if the poor fellow was not aware of the fact that he took chances when he went to work for the man on his being able to pay, and we are compelled to do that under the law. We have to put up notices on our claims to notify the poor man that we have leased that mine, and that he must look to the man who leased it for his pay. Now, that is the rule that governs, under this provision, and I am so informed by good attorneys. The poor fellow could be shut out and could not make any lease under this.

Mr. ANDERSON. Mr. President, I do not think that we should strike this section out. I do not think it will work a hardship on the mining industry, and I do not think that any corporation should be relieved from liability on account of a lease. It does not appear just to me. Therefore, I am opposed to striking this out.

Mr. SQUIRES. Mr. President, the gentleman from Utah asked Mr. James a question, which I do not think he would have asked if he had carefully read this section. Now, I am in this position personally, that I am leasing a mine from an incorporated company, and I have got a two years' lease on that property. If this section is going to operate in a way to prevent one from leasing a mine from a corporation, then I do not want it in there. If any amendment can be made to except mining property from the provisions of this section, I am in favor of that, and in order to test the sense of the Convention, I move to insert after the word property, in the third line, the words, “except mining property.”

Mr. RYAN. Mr. President, I cannot see anything wrong with the section. I think it is quite full and complete, and the objection raised by Mr. Squires I do not think is very good, because if he leases a property, he leases it with the obligations against it at the time of the lease, and that could not be disturbed thereafter.

Mr. SQUIRES. I did not lease it with any obligations against it.

Mr. RYAN. And if it were sold, or sold under execution even for a debt contracted afterwards, it would not disturb your right to it at all. I think the section is a good one.

The PRESIDENT. There was no second to Mr. Squires's motion.

Mr. BOWDLE. Mr. President, I am a little bit at a loss to know exactly how to interpret part of this section. I do not just understand what property would be held under a franchise. I do not quite understand the meaning of that, as it has been interpreted here. Now, I move to strike out, commencing with the word “or,” in line 2, and ending with the word “thereunder,” in line 3; the franchise covers the property, and it seems to me that it relieves the objection that has been made with reference to mining property entirely.

Mr. MALONEY. Mr. President, the {1658} section does not cover mining property, and was never intended to.

The motion to strike out was rejected.

Section 9 was read.

Mr. BOYER. Mr. President, I would move to amend in line 5, by striking out the word “requiring,” and inserting in lieu thereof, the words “first obtained.”

Mr. KIMBALL (Salt Lake). Mr. President, I move to amend by inserting after the word “authorities,” in the sixth line, the words, “and two-thirds of the people of that district.”
I would like to explain one reason I have. The city council has given a franchise to a little railroad that runs out to the Hot Springs and Bountiful. If I understand right, the franchise was granted for a street railroad, electric or cable, In place thereof they put on a locomotive dummy, smoky arrangement. The people have petitioned against it time and again, and have no redress. We have entered suit against the railroad for injuring our property. We claim that they have depreciated our property fully forty per cent. The people have no say as to giving that franchise. Now, I desire very much that the people should have a vote in these matters, and that if their property is going to be depreciated by a franchise given to a railroad company or any corporation, that they should have something to say about it.

Mr. SQUIRES. I would like to inquire what the gentleman intends to include by the word district?

Mr. KIMBALL (Salt Lake). The district of country or the street on which the railroad or telegraph line is running.

Mr. SQUIRES. Why do you not put it street, then?

Mr. KIMBALL (Salt Lake). It might be in a locality where there is no street. I will accept of the amendment.

Mr. RICHARDS. Mr. President, I desire to suggest to the gentleman who proposes the amendment that I do not think it covers exactly what he intends, by saying the residents on the street. He means, I guess, the property owners.

Mr. KIMBALL (Salt Lake). The property owners.

Mr. RYAN. Mr. President, as I seconded the motion, I would like to say that I like that principle and I would like to see it applied to all cities and towns. I think the power conferred on city councils, and even county commissioners, is altogether too extensive, and I would like to see that reservation held with the people, that the people should have the right to say whether a franchise

was correct or whether the franchise was wanted by the people or not